Paper read before The Pennsylvania Bar Association, June 27, 1918

By WILLIAM WATSON SMITH

In the days of our barbarian ancestors, when the chief of the tribe, chosen for his physical prowess, acted as the dispenser of justice, the processes of the law were comparatively simple. To take a typical case—a woman comes before the chief in tears and says that a certain man has killed her husband. The woman is attractive and tells her story well. Here is a simple case. The chief has no difficulty in finding the defendant guilty and immediately catches him, smashes his head with a club and that is the end of the case. Notice the speed of the thing. Perhaps the trial and execution together have not required more than an hour. It was not even necessary to have the defendant present at the trial, his presence being only required later for the purpose of execution. I venture to say, however, that, even at that day, there were some who believed that it is more important for a court to consider cases carefully than to keep abreast of its trial list and, therefore, had some doubts as to the wisdom of the procedure. All cases, however, were not so simple. A dispute arises in which both the plaintiff and defendant appear before the tribal chief and tell diametrically opposite stories. It is a warm June afternoon twenty-five hundred years ago. The chief has other things to do, but here are two pestilential fellows who contradict each other and call on him for justice. If one of them were a good looking woman or if he liked either of them the case could easily be decided. But the chief, with growing disgust, observes that neither of the parties is neither a woman or a friend. Here then is a troublesome case. What is to be done with this stubborn question of fact?

The difficulty which confronted the tribal chief on that hot June afternoon many centuries ago

is responsible for judges, juries, rules of pleading, rules of evidence and all the paraphernalia of the modern court of justice. As the years have passed and our civilization has become more complex, the lawyer's task has grown correspondingly heavier. Even if one were certain as to all the facts, it would in many cases be difficult to know what remedy should be applied or what penalty imposed to right a wrong or prevent its recurrence. This alone would require the adoption of numerous rules. But an even more troublesome problem is how to reach a correct conclusion upon disputed questions of fact. The difficulties of diagnosis by a physician are freely recognized. Is it any easier for a chancellor to determine the facts where the evidence is contradictory? Lawyers are fallible. That judges make mistakes is known to every lawyer who has lost a case. It is no wonder, therefore, that in order to prevent mistakes and to aid in the determination of the facts and in the application of the proper remedy an elaborate system of rules has been devised which is known as the science of the law.

What is a technicality? According to the dictionaries it is that which is "peculiar to any science, art, calling, sect," etc. A technicality is "something peculiar to a particular art, trade or the like; often implying formal or quibbling nicety as legal technicalities." It is obvious that any science, any art and any trade must have its special and peculiar rules. In fact, a science, art or trade consists. of such rules and the application thereof. No one finds fault with the technical rules of the carpenter or the bricklayer. The reason is that he is dealing with actualities and the necessity of his method of procedure is obvious. can readily be shown that timbers should be properly joined and framed and that the bricks in a wall should be plumb and well imbedded in mortar. But a lawyer's activities are in a totally different field. It is not always easy for an untrained mind to see the wisdom of a rule of law or the

It

justice of its application. Therefore, a considerable number of people have come to believe that there is undue technicality in the administration of the law. One often hears the expression "I lost my case on a technicality." This expression, I think, goes beyond the dictionary definition of the word. It is not easy to frame a satisfactory definition, but where the law is criticised by the man on the street I believe that by the term "technicality" he means a lawyer's quibble which has defeated the merits of the case. In other words, that the law has exalted form at the expense of substance.

Is this criticism of the law by the man on the street justified? We should concede at the outset that there have been cases to which the criticism could be fairly applied. Let us see how this has come about. We believe in following the precedents. We are satisfied that nothing could be worse than the abolition of settled rules of law, embodying the wisdom of the centuries, and the substitution of arbitrary decisions according to the ideas of justice of tribunals busily engaged in promoting experiment over experience. This is being tried today in Russia with results so disastrous that the injury to that country is almost justified by the benefits of the example to the rest of the world. Believing then that we should abide by the precedents it can readily be seen that in the trial of a case there are two principles operating in the breast of the judge which are sometimes in conflict. One is to follow the precedents; the other is to do what the court believes to be justice in the particular case. The proper application of a rule of law is frequently a most difficult matter. Further, the idea of inflicting a hardship is repugnant to all normal men and this principle necessarily operates strongly in the judicial mind. The conflict which sometimes arises between the precedents and what seems to be justice in the particular case has, therefore, produced a few decisions in which there has been some straining of the law. I think it is the

fact that the largest class of cases in which the courts have been criticised for so-called technical decisions is the class in which the judges have adopted a strained construction of the rules of law in order to avoid possible injustice to a man accused of a crime. This result was largely occasioned by the unduly severe penalties which, in the old days, were inflicted for certain crimes. As said. by Blackstone (Vol. 4, ch. 17):

"the punishment of grand larceny, or the stealing above the value of twelve pence (which sum was the standard in the time of King Athelstan, eight hundred years ago), is at common law regularly death. Which, considering the great intermediate alteration in the price or denomination of money, is undoubtedly a very rigorous constitution; and made Sir Henry Spelman (above a century since, when money was at twice its present rate), complain, that while everything else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper."

Is it remarkable that an English judge, for example, in a case of grand larceny, would be inclined to construe a bill of indictment sharply where a conviction would involve a death sentence? The result of these older decisions has been to bring about a narrow construction of indictments, which, in some cases, has been pushed to an absurd limit. The number of these cases, however, is few and is constantly decreasing. I wish we could say that all such decisions belong to the period of antiquity. We cannot do this however. I would like to mention one or two cases of the class to which I have referred.

In Thompson vs. The State, 15 Texas Court of Appeals Reports, 39 (1883), the defendant was tried and convicted of aggravated assault, under the Texas practice, upon an information in which the county attorney charged the commission of the crime based on a certain affidavit which was filed with the information. The judgment was reversed in an opinion of the Court of Appeals, reading in part as follows: