Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
The development of the great body of our law, from the brutalities of
a barbarous period, with the ever changing ideas of civilization, to
meet the needs of the people, and the higher standards obtaining, has
been gradual but certain. In so far as we have actually progressed,
therefore, we should be satisfied with the progress made and should be
slow to return to the customs or remedies which a past civilization found
unavailing, lest all our progress should prove but a dim phantom of the
imagination.
A profitable lesson can oftimes be gleaned from a study of the past and
when an innovation demanded is one that experience has proven fallacious,
it is puerile to refuse to profit by this lesson, for even “a burnt
child” will avoid the fire.
Undoubtedly much of the remedial and substantive law of our period needs
revision, to the end that simplicity may be attained and the interminable
delays, resulting from the present practice, incidental to too many new
trials and other objectionable methods, obviated. But this revision
should be cautiously made, so as not to impair the efficiency of the
great body of the law that the wisdom of the past has demonstrated to be
thoroughly consistent with the individual and national welfare.
The first attempt to simplify procedure in the United States, by the
adoption of the New York Code, was only sixty-five years ago and a
majority of the States adopted such legislation since the Civil War. The
common law practice was greatly improved and simplified by this concerted
action of the States and unquestionably there are many things that can
yet be improved in the remedial procedure of the present day.
But the prevalent idea that an increased volume of statute law
will furnish a panacea for all existing evils, is radically wrong.
The beneficent rules of conduct, crystallized into law, by custom,
because consistent with the needs of the people, in the evolution of
civilization, should be jealously preserved against the unscientific
fragmentary legislation, too often reflecting the unjust and unequal
demands of an aroused public sentiment, shaped by designing politicians,
rather than by the “cool examiner of the public pulse,” prompted by
beneficent objects.
Legislation, of course, is the simplest way of modifying or repealing
law, but legislators, in our country, frequently act without adequate
information or legal training and the most salutary rule of conduct, in
such hands, might be supplanted by the most unequal and unjust law.
All that is old is not necessarily good, but just because it is old,
is not a sufficient reason for discarding it. Legislation may become
as limitless as the imagination of the legislator and unless properly
advised, it would be inimical to the interests of the State or Nation.
Public-domain text, read in full here on John Shaqi.
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