CROSS-EXAMINATION: A SOCRATIC FRAGMENT.

*

Socrates.

HALL we not be right in saying then that the object of cross-examining witnesses is to elicit the truth?

Philotimus. It would seem to be so, Socrates.

Soc. Then the good advocate, aiming at this mark, will ask only such questions as will help to discover the truth?

Phil. Only such questions, Socrates.

Soc. How shall we reconcile this with what we arrived at before, that it is the function of the judge to find out the truth, and not the function of the advocate?

Phil. This is a hard nut to crack, Socrates.

Soc. Have we not then been confusing two different kinds of excellence, that of the judge and that of the advocate, just as if we were to confuse the excellence of the terrier and the excellence of the rat?

Phil. We seem to have been guilty of some such mistake, Socrates.

Soc. Let us consider then what is the special excellence of the advocate. Will it not be to recommend himself to his client so that he may obtain more briefs, and become popular among litigious people?

Phil. This seems very probable, Socrates.

Soc. Then will not the advocate who proposes this end to himself try, if he has a bad case, to make the worse appear the better reason, and to hoodwink the jury, and to browbeat and bully the witnesses and do other things of this kind, if he sees that they please his employer and procure him special retainers?

Phil. This is likely enough, Socrates.

Soc. And if he sees a witness timid and nervous he will speak to him in a loud voice and try to frighten him, and will treat him roughly as if he was speaking lies?

Phil. We shall not be far wrong, Socrates, in expecting this.

Soc. And if he knows anything to the disadvantage of the witness he will rake it up, will he not, however old it may be, and whether it has anything to do with the matter in question or not: as if a witness is called to prove a will he will ask him

whether he did not once steal apples when he was a boy, and if he knows nothing, he will suggest things which are not true and make innuendoes and insinuations?

Phil. This seems his best course, Socrates.

Soc. And if the judge interferes or remonstrates he will insult him as far as he dares, or make slighting remarks in an undertone, to make his employer think that he is master in the court and more knowing than the judge?

Phil. I should advise him to act so, if he would listen to me.

Soc. And thus he will get the reputation of a verdict-winner, and will be talked about in the newspapers, will he not, and will receive retainers and refreshers continually?

Phil. No doubt, Socrates.

Soc. While the unskilful advocate who asks only relevant questions and is courteous to witnesses and respectful to the judge will be neglected and his fee-book will suffer?

Phil. Assuredly, Socrates.

Soc. We seem to have arrived at this then, that law is in the nature of a cock-fight, and that the litigant who wishes to succeed must try and get an advocate who is a game bird with the best pluck and the sharpest spurs?

Phil. It would be madness not to do so, Socrates.

Soc. And to know the law and the true principles of justice will be a matter of secondary importance?

Phil. Altogether secondary.

Soc. So that we may say that the law is a matter of clever rhetoric and of bullying witnesses and cajoling juries and other such arts, may we not?

Phil. Apparently.

Soc. Then how shall we reconcile this with the saying of one of the greatest of the wise men, that law ought to be the leading science in every well-ordered commonwealth'?

Phil. We are in a fix, Socrates.

Soc. May we not have been wrong in saying that the special excellence of the advocate is to advertise himself and make himself popular with solicitors?

Phil. I am inclined to think that we must hark back, Socrates.

THE SUPREME COURT OF THE UNITED STATES1.

'ON

N the 4th of February, 1790, at the Exchange in the City of New York, the Supreme Court of the United States was organized and held its first session.' In 1890 the New York State Bar celebrated the hundredth anniversary of that event in a manner worthy of the occasion, and the goodly volume now before us is the literary record of the festival. The only criticism we have to pass on its outward appearance is that law calf and plain cut edges are hardly good enough for a book of so much artistic as well as professional merit. The etched portraits of the Justices, Chief and Associate, from Jay downwards, by Max Rosenthal and Albert Rosenthal of Philadelphia, form a most interesting series, and the difficulty of working from photographs, as the artists have had to do for the recent and present judges, has been successfully overcome. It is curious to note the increasing prevalence of a massive and square type of head in the modern period. Or can it be that the artistic fashion of the first half of the century was to extenuate this type when it occurred, whereas the present fashion would rather exaggerate it? However, this REVIEW is not the place for art criticism.

We cannot attempt to follow the history of the Supreme Court and its judges, which takes up the main part of the work. It is pretty to see how, after the first sitting of the Court, the Grand Jury for the United States gave 'a very elegant entertainment,' followed of course by divers toasts, in one of which Rhode Island— not having yet accepted the Federal Constitution-figured as 'our Stray Sister.' And many of the accounts of leading decisions will be found good and profitable reading by British as well as American lawyers. But, not having unlimited space at our disposal, we think it better to pass on to the addresses delivered at the celebration of 1890. They give us the carefully expressed thoughts of several distinguished American lawyers and publicists on the character and functions of the Supreme Court, and students of constitutional law and politics will find them worthy of special attention. Among the speakers were Mr. Edward J. Phelps, who,

1 The Supreme Court of the United States: its history, by Hampton L. Carson of the Philadelphia Bar, and its centennial celebration, February 4th, 1890. Prepared under direction of the Judiciary Centennial Committee. Philadelphia: John Y. Huber Company. London: Sampson Low, Marston & Co., Limd. 1891. Plates. 4to. xvi and 745 PP. (£4 48.)

as the United States Minister to this country, achieved the seemingly hopeless enterprise of adequately replacing Mr. Lowell; and Mr. Justice Field, long known to all readers of the United States reports as one of the strongest and most independent members of the Court, in whose defence against an enraged suitor (an ex-judge of California) a certain Deputy Marshal, not long ago, shot quickly and shot straight, and was most properly held to be justified.

In the course of these addresses we find repeated mention of the power of American Courts to disregard Acts of Congress as being contrary to the Constitution of the United States, or Acts of State legislatures as being contrary either thereto or to the Constitution of the particular State. A recent parliamentary controversy has shown that the nature of this power is still not clearly understood by many educated Englishmen. It may therefore be useful to quote some of the passages in which it is expounded. Mr. Hitchcock of Missouri puts it neatly:-'Neither the Federal nor any State constitution in terms grants such a power. It results from established legal principles, whenever the mandate of an inferior conflicts with that of a superior legislative authority; whether the former be a corporate by-law or municipal ordinance transgressing the charter, or a legislative enactment in disregard of constitutional limitations. In exercising it, the Court simply fulfils its judicial duty of declaring the supreme law and applying it to the case in hand.' The same point is more fully developed by Mr. Justice Field.

'Under the Constitution of the United States, the Supreme Court is independent of other departments in all judicial matters, and the compatibility between the Constitution and a statute, whether of Congress or of a State, is a judicial and not a political question, and therefore is to be determined by the court whenever a litigant asserts a right or claim under the disputed Act for judicial decision.

This power of that court is sometimes characterised by foreign writers and jurists as a unique provision of a disturbing and dangerous character, tending to defeat the popular will as expressed by the legislature. In thus characterising it they look at the power as one that may be exercised by way of supervision over the general legislation of Congress, determining the validity of an enactment in advance of its being contested. But a declaration of the unconstitutionality of an Act of Congress or of the States cannot be made in that way by the Judicial Department. The unconstitutionality of an Act cannot be pronounced except as required for the determination of contested litigation. No such authority as supposed would be tolerated in this country. It would make the Supreme Court a third house of Congress, and its conclusions would be subject to all the infirmities of general legislation.

.. Whenever, therefore, any court, called upon to construe an enactment of Congress or of a State, the validity of which is assailed, finds its provisions inconsistent with the Constitution, it must give effect to the latter, because it is the fundamental law of the whole people, and, as such, superior to any law of Congress or any law of a State.

.... This unique power, as it is termed, is therefore not only not a disturbing or dangerous force, but is a necessary consequence of our form of government. Its exercise is necessary to keep the administration of the Government, both of the United States and of the States, in all their branches, within the limits assigned to them by the Constitution of the United States, and thus secure justice to the people against the unrestrained legislative will of either the reign of law against the sway of arbitrary power.'

Mr. Phelps's address, which, like all his work of this kind, is admirable in style, dwells on the function of the Supreme Court in defending individual rights, which assuredly is among its most important ones. 'It was reserved for the American Constitution to extend the judicial protection of personal rights, not only against the rulers of the people, but against the representatives of the people.' In the Supreme Court citizens of the United States have the bulwark of the people against their own unadvised action, their own uninstructed will.' These words of American and republican statesmanship take us very far from the clamour of English politicians who talk as if a majority for the time being of the House of Commons had a divine right to override all the rules of both legal and political justice.

The great constitutional saying, delivered by Chief Justice Chase in the judgment of the Supreme Court in Texas v. White, 7 Wall. 700: 'The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States,' is more than once prominently quoted, as might be expected. We give the words because we have an impression that the phrase is sometimes misquoted an indissoluble Union,' &c. The adjective 'indissoluble' does occur in the context, but not in this sentence.

We trust that public and professional libraries in England will not omit to secure this book. Its importance, and probably its pecuniary value, will increase with every year that passes.

FREDERICK POLLOCK.