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cussion, we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter under the deceitful cover of the former."
Imagine a modern advocate attempting such daring flights into the blue empyrean of eloquence ! If the judge be in an amiable frame of mind he may permit the orator to proceed, especially if his client happens to be present, but it is more than likely that he will be promptly recalled from "the borders of the Thermodon" and told that he has but five minutes in which to elucidate his next "point."
To-day in the Supreme Court there is the same imposing array of justices with their black gowns and dignified demeanor, but all else is changed. Arguments are no longer made by a few. The entire bar of the country is represented. They come with their “grips” from Chicago, St. Louis, San Francisco, New York and Philadelphia, argue their causes in business suits and hurry away to catch the “ Congressional Limited." The audience is composed of sightseers and counsel waiting to be heard, and this is true of every court room in the land.
It is an interesting theme of speculation how Marshall would have succeeded had his career begun at the end instead of the beginning of the last century. Were he a member of the Supreme Court to-day, would he stand out above his associates as the Matterhorn dominates the adjacent Alps ?
The last reported term of the Supreme Court, that of 1901, considered three hundred and seventy-five cases, of which one hundred and sixty-eight were orally argued, one hundred and twenty-six submitted on printed briefs, and the balance disposed of otherwise.
Some of the records now submitted aggregate several thousand printed pages, the briefs several hundred printed pages.
Decisions innumerable, English and American, national and State, are cited in these briefs and must be examined by the judges. Could Marshall's genius, his calm judicial mind, his dignified and deliberate methods have flourished in this high-pressure age? Imagine him at one end of the telephone, with some long-distance lawyer at the other end, endeavoring to negotiate an arrangement by which the lawyer can reach Washington on the “Flyer,"
procure an injunction and return home the same evening on the “Cannon Ball.” How Marshall would have chafed at the telephones, stenographers, typewriters, tyro digests, scissors-made text books and all the din and clatter of the professional methods of this strenuous epoch! What would have been the result if the judgment in Marbury v. Madison, for instance, had been dictated to a stenographer instead of being written and rewritten by his painstaking pen? Instead of being a model of style, it might have had all the vulgar deformities of modern machine-made law. Instead of being concise, it might have been diffuse. Instead of exemplifying the result of his own thought, it might have been padded with endless quotations from textbook and report. Instead of being a legal classic, it might have been a mere commonplace. In the quiet of his library, with no distracting cares, with no domestic or financial problems to perplex and harass, with no interruptions from irresponsible seekers after justice and the innumerable bores who infest the highways and by-ways of twentieth. century trade, he could think in peace and quiet, weigh the great problems again and again, balance one argument against the other, and turn the light upon them from every side. He had time to write and rewrite his opinions, change the diction, select the best word to express his meaning, clarify and condense. Thus his decisions became models of logic and rhetoric as well. With the modern pressure such careful analysis is impossible. With hundreds of cases waiting and each litigant clamoring for an early decision, such care as Marshall was able to bestow is out of the question. Mortal mind cannot stand it. It hurts to think under high pressure, the brain rebels, just as does the body when taxed beyond its capacity. A modern judge who devoted the time to the preparation of his decisions that Marshall and his associates did a century ago, would either be hopelessly in arrears or in a lunatic asylum at the end of the first decade of his service.
Of the twenty thousand decisions of appellate courts published annually it is safe to say that less than one thousand are of any general interest to the public or the profession at large.
Within the memory of living men it was possible for every lawyer of fair intelligence to familiarize himself with all the leading cases. To-day, unless his memory is abnormally developed, it is impossible for him to remem. ber the names of the reports even, let alone their contents. Instead of developing his cases on the lines of fundamental legal principles, he shrivels into a legal scavenger raking over the annual dump heaps to find some ready-made authority to cover the nakedness of his facts. If he have sufficient patience he will surely be successful, but his facul. ties are dwarfed and stunted in the process. His mind becomes a battery, of no small storage capacity it is true, but requiring constant “charging” and liable to “short-circuit" at the most inopportune moments.
In Marshall's day the bar sought to make precedents, not to find them. A recent writer says: “The curse of the lawyer's life is the immense and constantly growing mass of books." Truer words were never spoken. It is a tremend. ous drain upon the income of the young practitioner to supply himself with the books which it is absolutely necessary for him to possess, namely, the reports of the United States courts and the courts of his own State. These come with amazing rapidity and relentless regularity. In the State of New York he is taxed for twenty-five volumes annually. Every thinking lawyer admits the existence of the disease, but few can suggest a remedy. Some think it is to be found in codification. Codify the common law, say they; but who will undertake the task? Our experience in New York with statutory codification has not been such as to warrant a belief that adequate relief can thus be found. “Let the courts and judges indicate the decisions which are to be published,” say others. The answer will be found in the quaint and homely phrase of the old practitioner, Judges are people.”
It is hardly to be expected that they will, sponte sua, deprive the profession of the priceless fruits of their judicial labors. Besides, the decisions, when filed, are accessible to the public, and it would be difficult to prevent their publication. But may not the bench and bar united inaugurate a reform? There is an over-production of law. The judges who write interminable opinions and who write something on every conceivable occasion are largely responsible for this condition. If less law were written, less would be published. If the courts of last resort would set the fashion of writing fewer and shorter opinions, the inferior courts would soon fall into line and the problem would be solved.
In the great majority of causes no question of public interest is involved. If these were decided in this country, as they are in other countries, either without an opinion or with a short memorandum, many of the evils which now confront us would be abated, and, after a short interval of dissatisfaction, the profession would not only acquiesce, but delight in the change. In the effort to accomplish this result, the bar should co-operate.
We have reached a pass where many members of the profession assume that a cause has not been properly considered by the Court unless a long dissertation covering every question argued accompanies the decision. A vast amount of time, which might better be used in other work, is consumed in satisfying this unreasonable sentiment.
Where no error is found in the record, why not say so and affirm the judgment without restating in other language what has been said in the court below? Where error is found, why not point it out briefly and reverse the judgment, unaccompanied by an elaborate argument to show that in other respects the judgment is inerrable?
And why is it necessary in the brief, as well as in the decision, to fortisy every axiomatic proposition with innu. merable authorities and long quotations from reports and text books which are easily accessible ?
These suggestions are made with diffidence, because I cheerfully admit that I have frequently offended against the doctrine which I now advocate. I may, however, urge as an excuse that is a long opinion be ever justifiable, it is in an equity case in the United States courts where the facts are first presented to the Court on a printed record.
That the verbosity of the bar is partly responsible for the verbosity of the bench can, I think, be easily demonstrated. In the hurry of modern practice it is seldom that a lawyer takes time to construct such a brief as was common in the days of Marshall. A conglomerate mass of quotations from the evidence, quotations from text books and quotations from reports, interspersed by stenographic
observations of counsel, is presented to the Court under the name of “brief." Sometimes two hundred and fifty pages of this undigested matter is handed to an overworked and tired judge with the knowledge that the mere physical act of reading it will occupy days of his time. Can there be a better illustration of “man's inhumanity to man?" It takes hard work, time and brains to write a perfect brief; but if this preliminary work were oftener done by the bar, there would be less complaint of the discursiveness of the bench.
We have certainly passed through great changes since the days of Marshall, but there is no reason for a pessimistic view of the future. True, we have too much litigation and too little pure law; true, our system is too complicated; true, we have to pass through endless technicalities before reaching a result; but the profession has among its members men as learned and as honorable as those who contended before the great Chief Justice.
In order that we may continue to occupy the high plane of the past it is wise to keep ever in remembrance the example of that incomparable lawyer. We cannot hope to reach the high altitudes trodden by him, but we can still follow in his footsteps and emulate his virtues with a grateful sense of the inestimable benefits which his labors have conferred upon his country and mankind.
ALFRED C. Coxe.