THE UMPIRE ON THE BENCH

In an after dinner address last week Dean Pound of the Law School traced the evolution of the United States common law judge from his English derivation to his present day status of an umpire on the bench. His remarks emphasized one of the most significant trends of American polity, the sole important deviation from the canons set up by our English model. This is the American attitude toward the judiciary which has stripped the common law judge of his former despotic powers and reduced him to a mere figurehead.

The history of English legal polity is replete with prosecutions, in all of which the picture of a tyrannical and brutal trial judge occupies the most lurid position in the public mind. Especially the prosecutions in Ireland toward the close of the eighteenth century at the crucial stage of the American legal system threw its dark cloud upon the young nation looking for guidance. Consequently, in view of the abominations perpetrated under the name of the common law judges of Great Britain and the popular prejudice of the times against them, it is small wonder that the American attitude of regarding the unrestrained common law judge as a partisan monster should be formulated. The successive steps which have relegated him to the level of the practitioners in his court are only logical ones for a nation desiring personal liberty above all things.

Whether any advantages have been derived from the abandonment of the English model, however, is a question which Dean Pound does not attempt to answer. He points out that in taking an independent course we have lost any benefit which might accrue from judicial experience, judicial empiricism, and independent courts. This is preferable, however, to undergoing that strong reaction which invariably follows on the heels of judicial depotism. A few dominating figures on the bench might illustrate very well the advantages of a strong independent judge but, after their passing comes lax criminal law, in the throes of which, according to Dean Pound, the present generation is still laboring as a result of the Federalist judges of 1796 who struggled against the usurpation of their despotic prerogatives.