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the ever-varying and increasing wants of the progressive Japanese people. But the task is not so easy; nay, it is the most difficult work. No lawyer of any experience will agree to the feasibility of such a suggestion. Statesmen and diplomats thought that as soon as Japan had her codes of law prepared and put into operation, and courts of law organized, her judicial administration would be unfailing, but they made a miscalculation. In so far as the provisions and arrangements of the codes go the Japanese codification is apparently perfect. The Japanese Civil Code might be called one of the masterpieces of modern legislation, but the use of codes consists in their practical application. The administration of justice is not a mere process of bare logical deduction, a cataloguing of simple deductive facts and legal propositions, without defining their logical affinity, nor is it merely the laying down of legal conclusions and stating the facts adaptable to such conclusions. The judgment in law consists of decisions arrived at by the most strict logical process of reasoning. It is the example of the highest inductive conclusion. Did not Professor Holland say,
that the chief practical difficulty of the lawyer and the judge is not the apprehension of principles, but the application of principles to facts, and that the best constructed code cannot remove this difficulty? To mature a code such as ours and to fulfill its true aims, requires the same breadth of logic and practical application as is the case with an advanced system of jurisprudence.
When Chief Justice Marshall had to expound the Constitution, he was no stranger to it, was one of those who contributed to its acceptance, assisted, in its adoption. His mind and thought were with the ideas of the times and he understood the men and affairs of his time. For after all, the Constitution was the outcome of the necessi
ties of the time. All the then current legal and political thoughts produced it. The written Constitution of your country was an indispensable necessity, but all its materials were already there. It simply represented the then current ideas as conceived by your representative statesmen. However, such was not the case with the Japanese codes. To borrow the ideas of Hon. J. F. Dillon, who addressed you two years ago on the occasion of your commemorative celebration of that great judge and lawyer, in Japan there are no precedents nor authorities. There are no native sages of law nor judicial opinions nor judgments from which to ascertain the right meaning of the codes and to declare and apply their provisions, and faithfully to carry out the intention of legislation. There was no accumulated and recorded wisdom of ages as an unfailing and sacred deposit from which to draw the principles to guide the inquiries, understanding and judgment of the Bench and Bar. It may perhaps be thought that it is a great advantage to Japan in the present stage of her progress to possess her code, but this is not so. It is beyond our power to attain to perfection with ease and rapidity: every one has to grow, to learn, and to reap his experience for himself. There is no difference in this respect between a man and human institutions. There is an incalculable benefit to be derived from that exercise of the faculties when a man gropes his way in the dark labyrinth of a mental and moral wilderness, feeling his way cautiously and with prudence, if haply he may light upon the true path to follow. The gift of codes at this early stage has been no boon to Japan. We have in Japan no Marshall, no Story, none of the great jurists. who laid the foundations of your law and Constitution. Nor has it as yet been possible for us to gather either the accumulated stores of experience or to produce the men
of original or creative power and character in whom those stores are embodied, and by whom alone even the most perfect of codes can be successfully administered.
George Lawyer, of Albany:
Mr. President, I move that a vote of thanks be extended to Dr. Masujima for the honor he has done us in being present to-night and for the able discourse to which we Lave just listened, and, as an evidence of our appreciation, that he be elected an honorary member of the New York State Bar Association.
The motion was duly seconded and carried unanimously.
This meeting stands adjourned until to-morrow, Wednesday morning, at 10 o'clock, in the rooms of the Common Council in the City Hall.
A large and distinguished audience, comprising many members of the Association, State officers, the Judges of the Court of Appeals, members of the Senate and Assembly and representative citizens of Albany, were in attendance, and Dr. Masujima's address was listened to with much interest.
Following the address, a reception was given to Dr. Masujima at the Fort Orange Club, which was attended by a large number of the members of the Association and distinguished guests.
ALBANY, N. Y., WEDNESDAY, January 21, 1903.
Ten A. M.
The Association met in the Common Council Chamber, City Hall.
President Milburn in the Chair.
The Association will come to order. We will now listen to a paper on "The Independent Judge," by Martin W. Littleton, of Brooklyn.
THE INDEPENDENT JUDGE.
The great New England lawyer, Rufus Choate, said: "I suppose that we agree that the one grand peculiarity of our system of government the one grand fundamental doctrine of constitutional liberty- the great primitive granite foundation of it all, is that the three great departments of the government shall be entirely independent each of the other; and that in a special manner, the Judiciary shall be independent not merely of the crown, but of that power behind the throne, so much greater than the throne, the Legislature. I suppose, sir, there is not the least extravagance in saying that this principle is the one foundation and granite principle upon which our Constitution is built. I suppose that there is no extravagance in saying that the one great principle of English liberty obtained in 1688, was exactly this that for the first time it made the English Judge independent of the crown. Let any man refresh his studies of our glorious Literature of Liberty — let him go back to 1780 and 1789, when our
Constitutions were debated and adopted - let him read Mr. Adams' history of the debates in the several conventions, and the papers of Jefferson and Madison, and he will find that these three great ideas possessed the universal American mind: first that the three departments of government should be kept distinct; secondly, that the Judiciary should be made independent, and thirdly, while most persons entertained a very unreflecting dread of executive power, the wisest and best of our fathers anticipated that morbid development of the power of the Legislature, which should thrust down the Judiciary below it.
It is upon that principle, you know very well, Mr. Chairman and gentlemen, that our own State Constitution has been organized. And I never read without a thrill of sublimity the concluding article of the Bill of Rights, in which it is promulgated:
In the Government of this Commonwealth, the Legislative department shall never exercise the Executive and Judicial powers, or either of them; the Executive shall never exercise the Legislative and Judicial powers, or either of them; the Judicial shall never exercise the Legislative and Executive powers, or either of them; to the end that it may be a government of laws and not of men.' [Rufus Choate's argument before a Committee of the Massachusetts Legislature, April 5, 1849.
If it be said that in choosing my subject I have invaded the domain of politics, my sole answer is that I am following the Judiciary; if it be urged that the meaning of this paper is an attack upon the Executive, my sole answer is that the Executive is an illustration and not an object; that it does not deal with any particular executive who may have the transitory fortune to occupy that high office, but with the powers conferred by the Constitution upon the Executive and with the use or misuse of such powers.