Adapted from The Path of Law, by Oliver Wendell Holmes, Jr. (1897)

When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.

The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned.

With which of the following positions would the author of this passage most likely disagree?

Adapted from The Common Law by Oliver Wendell Holmes, Jr. (1881)

If it were necessary to trench further upon the field of morals, it might be suggested that the dogma of equality applied even to individuals only within the limits of ordinary dealings in the common run of affairs. You cannot argue with your neighbor, except on the admission for the moment that he is as wise as you, although you may by no means believe it. In the same way, you cannot deal with him, where both are free to choose, except on the footing of equal treatment, and the same rules for both. The ever-growing value set upon peace and the social relations tends to give the law of social being the appearance of the law of all being. But it seems to me clear that the ultima ratio, not only regum, but of private persons, is force, and that at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference. If a man is on a plank in the deep sea that will only float one, and a stranger lays hold of it, he will thrust him off if he can. When the state finds itself in a similar position, it does the same thing.

The considerations that answer the argument of equal rights also answer the objections to treating man as a thing, and the like. If a man lives in society, he is liable to find himself so treated. The degree of civilization which a people has reached, no doubt, is marked by their anxiety to do as they would be done by. It may be the destiny of humanity that the social instincts shall grow to control our actions absolutely, even in anti-social situations. But they have not yet done so, and as the rules of law are or should be based upon a morality that is generally accepted, no rule founded on a theory of absolute unselfishness can be laid down without a breach between law and working beliefs.

If it be true, as I shall presently try to show, that the general principles of criminal and civil liability are the same, it will follow from that alone that theory and fact agree in frequently punishing those who have been guilty of no moral wrong, and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned. If punishment stood on the moral grounds that are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly that arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes. I do not say that they should not be, or at least I do not need to for my argument. I do not say that the criminal law does more good than harm. I only say that it is not enacted or administered on that theory.

It can be inferred from the passage that most people view criminal law as being based on __________.

Adapted from the Opinion of the Court by Chief Justice Morrison Waite in the United States Supreme Court Case Reynolds v. U.S. 98 U.S. 145 (1878)

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and states to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining [98 U.S. 145, 163] heretical opinions. The controversy upon this general subject was animated in many of the states, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration “a bill establishing provision for teachers of the Christian religion” postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested “to signify their opinion respecting the adoption of such a bill at the next session of assembly.”

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. [Semple's Virginia Baptists, Appendix.] At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. [1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298.] In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the state.

It can be inferred from the passage that most people in the late eighteenth century believed that religion __________.

Adapted from Wilkerson v. Utah, 99 U.S. 130 (1878)

Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment. Soldiers convicted of desertion or other capital military offences are in the great majority of cases sentenced to be shot, and the ceremony for such occasions is given in great fullness by the writers upon the subject of courts-martial.

Where the conviction is in the civil tribunals, the rule of the common law was that the sentence or judgment must be pronounced or rendered by the court in which the prisoner was tried or finally condemned, and the rule was universal that it must be such as is annexed to the crime by law. Of these, says Blackstone, some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead.

Such is the general statement of that commentator, but he admits that in very atrocious crimes other circumstances of terror, pain, or disgrace were sometimes superadded. Cases mentioned by the author are where the prisoner was drawn or dragged to the place of execution, in treason; or where he was emboweled alive, beheaded, and quartered, in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female. History confirms the truth of these atrocities, but the commentator states that the humanity of the nation by tacit consent allowed the mitigation of such parts of those judgments as savored of torture or cruelty, and he states that they were seldom strictly carried into effect.

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.

It can be assumed from the information given in the passage that historically people have viewed punishment __________.

Passage adapted from Courts and Criminals (1912) by Arthur Train.

But as the examination of the panel and the opening address come last in point of chronology it will be well to begin at the beginning and see what the labors of the prosecutor are in the initial stages of preparation. Let us take, for example, some notorious case, where an unfortunate victim has died from the effects of a poisoned pill or draught of medicine, or has been found dead in his room with a revolver bullet in his heart. Sometime before the matter has come into the hands of the prosecutor, the press and the police have generally been doing more or less (usually less) effective work upon the case. The yellow journals have evolved some theory of who is the culprit and have loosed their respective reporters and "special criminologists" upon him. Each has its own idea and its own methods—often unscrupulous. And each has its own particular victim upon whom it intends to fasten the blame. Heaven save his reputation! Many an innocent man has been ruined for life through the efforts of a newspaper "to make a case," and, of course, the same thing, though happily in a lesser degree, is true of the police and of some prosecutors as well.

In every great criminal case there are always four different and frequently antagonistic elements engaged in the work of detection and prosecution—first, the police; second, the district attorney; third, the press; and, lastly, the personal friends and family of the deceased or injured party. Each for its own ends—be it professional pride, personal glorification, hard cash, or revenge—is equally anxious to find the evidence and establish a case. Of course, the police are the first ones notified of the commission of a crime, but as it is now almost universally their duty to inform at once the coroner and also the district attorney thereof, a tripartite race for glory frequently results which adds nothing to the dignity of the administration of criminal justice.

The coroner is at best no more than an appendix to the legal anatomy, and frequently he is a disease. The spectacle of a medical man of small learning and less English trying to preside over a court of first instance is enough to make the accused himself chuckle for joy.

Not long ago the coroners of New York discovered that, owing to the fact that the district attorney or his representatives generally arrived first at the scene of any crime, there was nothing left for the "medicos" to do, for the district attorney would thereupon submit the matter at once to the grand jury instead of going through the formality of a hearing in the coroner's court. The legal medicine men felt aggrieved, and determined to be such early birds that no worm should escape them. Accordingly, the next time one of them was notified of a homicide he raced his horse down Madison Avenue at such speed that he collided with a trolley car and broke his leg.

It can be inferred from the information in the passage that prosecutors view the other investigators in a criminal case as _____________.

"Lynch Law" by William Floyd (2015)

“Lynch Law” as it was known can appear as a peculiar feature of the past only. Never in the present day does a mob, carrying torches, clubs, and small firearms, descend upon a county jail to take from a cell an accused criminal who is supposed to have committed a crime so heinous and unspeakable that the crowd believes the only justice is to find the nearest sturdy tree to hang the accused from. This action, so common in the late nineteenth and early twentieth centuries, particularly in the Southern portion of the United States, died out after World War II, with only a few isolated incidents, roundly disparaged, revealing the last gasp of the Lynch Law.

Perhaps the exact mechanisms of lynching culture do not exist, features of a bygone society, more rural, prejudiced, and violent than that which replaced it. Yet the attitudes have never left the consciousness of many Americans. On the chyrons of the nightly news and splashed across front pages of newspapers, accused criminals are only treated as such out of formality. In actuality, the tone of the reports reveals that the poor soul accused of a crime is assumed to be found guilty once the proper processes of the judicial system have run their course. Through a nod to a presumption of innocence and unwavering fidelity to the slow march of the courts, any sensible citizen can congratulate themselves that they are well beyond their ancestors, whether by blood or thought, who invoked the lynch law.

In actuality, a person can be arrested on the most base of suspicions, that they have the same vague hairstyle, shirt color, or peculiar mannerism of suspect’s description given by a witness. Then this poor soul will have to be questioned by any number of detectives, who look for the slightest pause, tic, or odd gaze. And heaven help him should he forget where he was for some small sliver of time. At that point, he is all but done for in front of the criminal justice system, being as he is with some apparent similarity to the description of the suspect, no alibi, and the accusations of police and prosecutors. While he is exceedingly lucky not to have to worry about being taken out of his cell and murdered underneath a large tree, he is still shunted forward to a removal from society after his placement in a labyrinthine prison system.

It can be assumed from the information presented in the passage that most people view lynching as __________.