The American Judiciary

by Simeon E. Baldwin

Courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in Constitution or statute and unknown to the common law. If such was once the habit of the English courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. It is for the judge to adapt old principles rather than adopt new ones. What one man thinks is public policy another, equally clear-headed and well-informed, may not. The safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. If, however, the courts of a State are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that State, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[Footnote: Seery v. Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

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CHAPTER VI

THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW

As governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. Few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. Thought is subtler than its expression. The meaning of written laws will therefore often be questioned.

An answer is sometimes attempted by the authority from which the law proceeded. A king declares what he intended by the terms of an ambiguous edict. A legislature passes an act to declare the meaning of a previous one. But meanwhile rights have accrued. Something has been done in reliance upon a certain construction of the law. If it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. Laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. A "declaratory statute"—one declaring what a previous statute meant—is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions. As to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the judges decide them? The answer must be determined by considerations applicable to every sort of written paper. If the true construction of an ambiguous document be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. If left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. The construction of all writings is therefore, by the Anglo-American common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. Their possession of this power in the United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with supreme authority. It may be that of one man or of many men. The essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the State.

The fundamental principle of American government, as laid down in the words of Harrington in the oldest of our State Constitutions, after which many of the rest, and that of the United States as well, have been largely patterned, is that it is one of "laws and not of men."[Footnote: Constitution of Massachusetts, Part the First, Art. XXX, quoted more fully in Chapter II.] Laws, however, must be administered by men. Their meaning, if it be uncertain, must be determined by men. It must be the subject, as the same Constitution twice affirms, of "impartial interpretation."[Footnote: Id., Preamble, and Part the First, Art. XXIX.] This interpretation is really what gives them force. It is the personal utterance of one speaking for the State, and who speaks the last word. It was simply following English precedent to give this power to the courts as respects legislative enactments. But the principle which required it inevitably extended with equal force to constitutional provisions. The people who adopt written constitutions for their government put their work in a form which must often give rise to questions as to what they intended to express. They rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be.

There is but a step from interpretation to enlargement. Every statute is passed to accomplish something. If the object is clear, the rules of Anglo-American law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. This is styled giving effect to "the equity of the statute." Even violence can be done to the words, if so only can this judge-discovered intent be made effectual. The rules governing judicial interpretation of statute law fill a good-sized volume.