CHAPTER VI

CONSTITUTIONAL AND COMMON LAW STANDARDS ARE PERMANENT, BUT COURT OPINIONS OF THEM ARE CHANGEABLE AND SHOULD BE PROGRESSIVE

Constitutional and common law standards, being determined by the purpose of government, are necessarily, by reason thereof, fixed and permanent. The purpose of government does not change, but remains as designed at its institution.

Alexander Hamilton said: "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit."

Justice, the equality of rights and obligations among men, is ever the same. In the struggle to attain this end, there has been the never-ending contention between the various elements of society in reference to legislation and court decisions. The enactments of the legislature and the decisions of courts indicate very clearly that both legislative enactments and judicial opinions change, but the end of government is always the same. The standard of the constitution and the common law, justice, the equality of rights and obligations among men, is the same, yesterday, to-day, and forever.

When a court changes its opinion upon a question, it does not thereby change the law, but only its own view of the law.

In Haskett vs. Maxey, 134 Ind. 182, the Supreme Court of Indiana said: "Courts of last resort are

often constrained to change their rulings on questions of the highest importance. When this is done, the general rule is that the law is not changed, but that the court was mistaken in its former decision."

We are accustomed to speak of court decisions as the law, when, in reality, they are merely the court's opinions of the law. They may be in harmony with the law and they may not.

In Kellum vs. the State, 66 Ind. 588, the Supreme Court of Indiana, in 1879, held that lottery gambling by the Vincennes University was a vested right under its charter, granted by the territorial legislature of 1807, notwithstanding the fact that section 8 of article 15 of the constitution of the state, adopted in 1851, reads: "No lottery shall be authorized; nor shall the sale of lottery tickets be allowed."

In 1883, the same court in the State vs. Woodward, 89 Ind. 110, overruled the decision in the Kellum case, and held that lottery gambling could not be legalized in Indiana. In the Kellum case, the court measured the constitutional provision by an enactment of the legislature, and decided that the constitution was itself unconstitutional. In the Woodward case, the court measured the legislative enactment by the constitution, and held the enactment to be unconstitutional. The constitution did not change between 1879 and 1883, but the court changed its opinion of the constitution.

From the organization of the state until 1899, the Supreme Court of Indiana, in an unbroken line of at least a dozen decisions, held that, to constitute the crime of false pretenses, the pretense practiced must be such that a man of ordinary caution and pru

dence would give credit. The effect of this ruling was to grant to only the strong and prudent the protection of the law, while, in truth, the equality of rights and obligations among men, can only be preserved by granting to the simple and credulous. the same protection as is given to the strong and astute and by guarding the ignorant, inexperienced and unsuspecting against the wiles, arts and tricks. of the strong and unscrupulous.

In 1877, a circuit judge in Indiana, called attention to the fallacy of the holdings of the Supreme Court, and suggested that the doctrine it advanced. would enable almost any confidence man to escape. Clifford vs. State, 56 Ind. 245.

For announcing dissent from the holding of the Supreme Court, this circuit judge was by that court severely reprimanded. Twenty-two years later, in Lefler vs. State, 153 Ind. 182, the Supreme Court overruled all of its previous decisions on the question and adopted the rule proposed by this circuit judge, citing as an authority an article written by him and published in a law journal about the time of the decision of the Clifford case.

The law of false pretenses, in Indiana, did not change in 1899, but the Supreme Court, at that time, changed its opinion of the law. Prior to that time, all false pretense cases in the state had been tried according to a rule contrary to the equality of rights and obligations among men, and, if the Supreme Court had continued to follow its precedents, as the head-hunter hunts heads, we would still be trying false pretense cases according to the old rule. It required eighty-three years for the Supreme Court

of Indiana to apply the principle of equal justice in this class of cases, and it required twenty-two years for it to acquire the moral courage to do so, after a circuit judge had admonished it of its error.

While the fundamental maxims and standards of the constitution and of the common law are permanent and should never be departed from, there is a sense in which the constitution is said to be elastic and the common law to be progressive. It is often spoken of as the "Evolution of the Law," but it is, in reality, an evolution of court opinions of the fundamental maxims and standards, and the advancement and progress of courts and judges in making application of them to new conditions or to old conditions, in the light of the progress and change of an advancing civilization.

Speaking of the common law, the court, in People vs. Randolph, 2 Parker Cr. 174, said: "The 'common law' consists of those principles, maxims, usages, and rules of action which observation and experience of the nature of man, the constitution of society, and the affairs of life have commended to enlightened reason as best calculated for the government and security of persons and property. Its principles are developed by judicial decisions as necessities arise from time to time demanding the application of those principles to particular cases in the administration of justice. The authority of its rules does not depend on positive legislative enactment, but on the principles they are designed to enforce, the nature of the subject to which they are to be applied, and their tendency to accomplish the ends of justice. It follows that these rules are not arbitrary in their

nature nor invariable in their application, but from their nature, as well as the necessities in which they originate, they are and must be susceptible of a modified application, suited to the circumstances under which the application is to be made."

As it is the function of the constitution to provide a means of preserving and protecting the natural rights of men, the application of the constitutional standard will vary, according to the courts' views of these natural rights. The views of the courts. may be rightfully expected to keep pace with the progress and advancement of society. On this subject, the Supreme Court of Tenn., in Jacob vs. State, 22 Tenn. 493, said: "A few plain and practical rules will do for a wandering horde of savages, but they must and will be much more extensively ramified when civilization has polished, and commerce and arts and agriculture enriched, a nation. The common law of the country will therefore never be entirely stationary, but will be modified and extended by analogy, construction, and custom so as to embrace new relations springing up from time to time from an amelioration or change of society."

The courts do not, as a rule, lead public sentiment, but public sentiment leads the courts. Consequently, no court can safely depend upon an application of a common law standard, made four hundred and fifty years ago, for, to do so, is to blindly ignore the fact that most likely there have been radical changes and advancements in society, justifying and requiring a different application of the standard.

Discussing the Dred Scott decision, in this respect, Abraham Lincoln said: "Public sentiment is