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THE LAWS OF THE MEDES AND PERSIAN*
536 B. C.-236 B. C. .
" Which altereth not,” were known for their rigidity and \ ‘ or [j z:<ij
Their penal laws were the harshest and crudest that ■ ■ " ^ they
to know until the advent of Common Law England. - * ) a -..
created the first postal system, they had but little i ■ . termi-
Under Cyrus the Great, the Persians conquered Bar) , rftur n
nating the captivity of the Jews and enabling that P tl P. rf J fisli< in ‘
to their own land and re-establish their laws /, ;{t . r to the
ity, revolutionized the world. The Persians added little, - ^
lamp of the law but nurtured the flame and pa
★ THE SOUTHERN ISR^ ELlT
Benjamin N. Cardozo
THE JUDGE as a
Human Being
The Official Versus the Man in the Law
Ity BENJAMIN N. CARDOZO
(Special to The Southern Israelite)
A prophetic article written by Babette Deutsch, namely, “Cardozo, the Man H ho May Be the Second . ew
on the Supreme Bench,” appeared in The Southern Israelite in May, 1930—some eighteen months in advance
of Justice Cardozo’s appointment.
Those who have acclaimed the nomination of Benjamin N. Cardozo to the l nited States Supreme (.ourt benc
have given praise not only to his profound sympathy with mankind but also to the charm and power of ns
writings. During his years as Chief Judge of the New York Court of Appeals he wrote many decisions that be
came notable and delivered many addresses that were outstanding for their clarity and simplicity. I ic jo ow
ing are extracts of speeches he delivered in recent years. They serve admirably to reveal the temper of t le
man and the warmth of his literary style.
O NE can have an outlook
on the law itself which
will he the outlook of the
drill-master rather than the gen
uine strategist, the official rather
than the man. 'l ake such a
thing as the call of the calendar
and the administration of cal
endar rules. 'There is a way of
doing such things as a drill-mas
ter and a way of doing them as
a man. I had little or no ex
perience with such problems as
a judge, so perhaps 1 have no
right to talk of them—I have
sometimes feared that I should
make a mess of them myself—
but, after all, l watched the do
ings of others while l was a
member of the bar: so 1 am
entitled to an opinion, whether
it is worth much or little. Then
when you pass from practice to
higher problems, you get the
same antithesis. Some of the
worst decisions the courts have
ever made have come from just
this opposition. 'They thought
they were not derogating from the soundness of
a judgment when they admitted its brutality. 1
concede that there are times when the two will
stand together—chiefly, I think, when the rule
to be applied is one declared bv statute. Yet the
concurrence is rare, is to be viewed with deep dis
trust, and is to be deplored as much as it is dis
trusted.
The common law, unless bound and riveted by
statute, has instruments at hand of many varieties
and shapes for the molding of that justice which
is the end of her endeavor. 'The truth seems
obvious enough, yet at times judges have been
blind to it. Dean Pound in one of his papers
tells us about judges who preferred a “strong”
decision. By this they meant a decision that
worked out some harsh result by the undeviating
application of the method of strict logic to the
development of a precedent or a rule. 'They
thought that in so doing they w'ere vindicating the
power and majesty of hnv. So, in a delightful
article by Mr. Buckland, a sketch of Frederick
W. Maitland, we are told of an English judge
who w r as said to exult in a harsh judgment, and
seemed to be friendly to injustice when the choice
was nicely balanced. Perhaps to these illustrations
I should add the western judge whose strictness
was a subject of one of Lincoln’s anecdotes. “He
would hang a man for blowing his nose in the
street, but he w T ould quash the
indictment if it failed to specify
what hand he blew it wfith.”
I am not saying that examples
so horrible as these can be found
among the many judges I have
known in years of practice too
long to be stated at a festive
meeting. None
the less, the
slumbering beast
is in us, and may
be waked to life
and fury if we
feed him over
much. 'The rav
ening official
will seek to swal
low up the man.
1 interpret the
invitation to be
with you today
the very modest virtue of being men u
being. Charles Francis Adams says
biography that as he looked back throu , the ^
of the years the predominant feelinir
satisfaction that at least he had gone TV ?
without making a conspicuous ass of hi
I may say in passing, is my own paeap () f f '
tion at the end of each judicial year. n V,
ing that I ought to add another vers< \ ver'e
thanksgiving that I have been able to i-L a ot
being. That is a modest achievement, :is 1 i’
said. Perhaps it is not wholly negligible I th V
we are coming more and more to a knowled W
the truth wffiich I have been emphasizing t od;n
that officialdom, however it displays itself
the husk and that what is precious’is the mol
within.
I am told at times, by friends, that a judicial
opinion has no business to be literature. The idol
must be ugly, or he may be taken for a common
man. The deliverance that is to be accepted with
out demur or hesitation must have a certain high
austerity w r hich frowns at winning graces. I fan'
that not a little of this criticism is founded in
misconception of the true significance of literature
or, more accurately perhaps, of literary style. To
some a clearer insight has been given. 'There are
those w r ho have perceived that the highest measure
of condensation of short and sharp and imperative
directness, a directness that speaks the voice of
some external and supreme authority, is consistent
none the less, wfith supreme literary excellence.
A dictum of Henri Beyle’s, recalled not long ago
by Mr. Strachey, will point my meaning. 'The
French novelist used to say that “there was only
one example of the perfect style, and that was the
Code Napoleon; for (Please turn to page lb)
Handwriting on the Wall at Belshazzar’s l east Predicting
Babylonian Defeat by the Aledes.
as an expression
of your judg
ment that what
ever mistakes I
may have made
—and l know
that they have been more than I
like to figure or remember—I have
at least avoided this one. 1 have
not allowed the official to swallow
up the man. I don’t mean that I
am entitled to a great deal of
credit for so modest an achieve
ment. In a court where the tra
dition of courtesy and equity is so
ingrained and inveterate as it is in
the Court of Appeals, one would
have to be a pretty hardened sort
of sinner to be guilty of the partic
ular form of wrongdoing that has
its origin in the pride of office. But
then, when you come to think of
it, virtues are important in the in
verse order to the credit that is due
to those who cultivate and prac
tice them.
No one of us struts about with
satisfaction for the self-restraint
involved in refraining from the
crime of homicide, yet if the im-
poi tance of the virtue were the
measure of the credit we should all
be crowing and cawing with the
pride of moral excellence. So I
don’t assume to pride mvself on