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The Green Bag

the device he used a "whale," and claimed that a whale wasn't a ﬁsh but a mammal. This defense didn't "go down" with the Court; and if a law should forbid the taking of “ﬁsh" at certain times or places and this law were

undoubtedly and notoriously inspired by a policy of conservation regarding marine animals in general, whales would, no less undoubtedly, enjoy its protec tion: the courts would perhaps re

member that Blackstone classed them as “royal ﬁsh." I have said that there is yet more

clearly room for helpful "law making" by judges, for good “judicial legislation," in dealing with questions of statutory construction than with the appli cation of established rules of the common

law. This is mainly because these gules have been slowly worked out by men, the most of them able, the most of them conscientious, the most of them dis interested,‘ to meet exigencies arising in

actual life according to their well con sidered opinions as to the permanent interests of the community, while our statutes are in great part the work of mere vote-hunters and demagogues, enacted for the temporary ends of poli

serve the public ably and faithfully; but the law-giver who habitually takes up the time of a head of department is ordinarily a very diﬂerent personage, at: least, according to my own experience.

I found him too often a marvel of petti ness, selﬁshness and timidity. He could look at nothing beyond his own political interests and

trembled at

the

bare

thought of displeasing anybody whose displeasure might cost him votes. When he called on the Secretary of the Navy, it was always to interoede for a de

serter or to ask the discharge of a. recruit or to get work for a navy yard or higher wages for some workmen; when he visited the Department of Jus tice, it was to further a pardon or beg that a criminal be not prosecuted or to importune for higher salaries to some deputy marshals or to talk about some matter of patronage. In any case, he always "wanted something” for his friends or his state or his district and really and in last resort, always "wanted something" for himself. To make him talk or think about the national defense, the eﬂective administration of justice, the enforcement of the very laws he

the selﬁsh purposes of unscrupulous men, often the very men against whose

had helped to make, been, in the words “nothin' less than a sion." That such

wrong-doing they pretend to provide

characteristics of many among our Lycur

safeguards.

guses, whether in state or nation, is, after all, in no wise surprising. No one with any experience in the dismal labor of trying to persuade reputable and esteemed men to become candidates for elective ofﬁces will doubt the genuine and profound reluctance of the right man to settle himself into the right place

ticians or artfully contrived to advance

At best, they are seldom

more than rudimentary, embryonic laws,

destined and intended to be moulded into their ﬁnal and practical shapes by the legislative action of the courts in

professedly construing but really com pleting them. A former Cabinet oﬂ‘icer has less difﬁ culty thanthese standing another things. mightDoubtless have in under— he is

there must have of Sam Weller, nat'ral conwul should be the

in this ﬁeld of his duty as a citizen;

and, according to my own observation occasionally brought in contact with worthy gentlemen belonging to each house of the national legislature who

this reluctance usually, although not

always, increases as the prospects of election become brighter. I have found