102
The Green Bag
to death for the impossible crime of witchcraft, and long after his day men, women and children were hung for the theft of a shilling, and to those accused this savage law denied the aid of coun sel and even refused them the right of calling witnesses to attest their inno cence. Little respect is due to the forms in which such a law expressed itself. We have certainly made progress in humanity since that time, and human ity in the law is its highest wisdom. Modern legislation has freed the law of its ancient barbarities, and with these should be permitted to free it of its ancient crudities and absurdities. The rule that statutes in derogation of the common law are to be strictly con strued has no place where the legislative intent is clear. There is no sanctity in any rule of the common law. It may be, as Lord Denman says, that it is not an expression of the wisdom of former ages, but "the neglected growth of time and accident; circumstances having pre vented the revision that is now taking place, and the existing defect is only left uncured because no deliberation has ever been had upon it." Legislative enactments are not always wise, but who would recall their innovations upon the common law where human interests are concerned? The old criminal procedure was cruel in its orderly operation; it was merciful only by caprice. It is the purpose of the modern procedure to avoid alike the cruelty and the caprice and to ordain a mode of trial in which inquiry shall be as full and free as the wisdom of man can make it and in which con demnation shall follow only when all reasonable doubt of guilt has been dis pelled. The new way has nothing in common with the old, and its efficency is impaired when we cramp and confine it within the forms of the old.
It is the vice of the old systems of procedure that their rules are para mount to the human interests affected by them. The means became exalted above the ends they were intended to serve. Some form and some order we must have, but these must be suited to the case and not the case to them. The justice of the law should be mani fest in all its judgments, and for this its ways must be plain to the general intel ligence. We resent criticism of legal methods from the outside, but there are manifestations of discontent with our procedure more significant than any mere criticism, whether temperate or intemperate. People are disposed to hold themselves aloof from the courts, settling their controversies otherwise, and too often when grave crimes have been committed they take upon themselves the function of vindictive justice and in hot blood and blind passion inflict the punishment, which should be inflicted, if at all, only after deliberate and dis passionate inquiry. Compromise is becoming the order of the day, or, if compromise fails, arbitra tion. Institutions like Boards of Trade have their committees of arbitration; im portant contracts provide for it in case of differences between the parties. Com promise and arbitration may be im provements upon the methods of the law as they are, but not upon its methods as they should be. Compromise is com mendable when it means the recognition of another's right, but not when it means the surrender of one's own right. The business man of today feels that he cannot afford to litigate. It takes too much time, it costs too much money, it fails often to settle the matter in dis pute. So a compromise is made, not from moral but from mere pecuniary motives. Wrongful demands are con ceded if the measure of extortion does
