An Address Delivered before the Graduating Classes at the of Yale Law School,
Hoggson & Robinson, Printers to the Law Department of Yale University, New Haven, Conn.1896.
Mr. President; Mr. Dean; Gentlemen about to Graduate in Law:
Merely to welcome you to the ranks, already more than crowded, of a profession once deemed learned and honorable, should not be a difficult task for one whose occupation consists largely in the making of speeches. Prospect or retrospect: the look backward over your years of studious preparation, or forward to the hopes and doubts that overhang the career upon which you now enter,—either is rich in suggestion for an address which marks the close of the preparation and the beginning of the career. Both the forward and the backward glance, indeed, give rise not so much to thoughts as to emotions; and these last, to one charged with this pleasant and honorable duty, might seem fittest for the occasion. For you have had, these years past, instruction enough, no doubt; and one may well guard himself now from being gratuitously didactic.
Nevertheless, while your education has without doubt included, whether by the voice of your instructors, or the books you have read, or, better perhaps than all, by frank and warm discussion with your comrades, the great page 4 subject of the ethics of the profession upon which you are now to enter, it has occurred to me that such discussion has commonly adopted a triple division of the subject, and that such division is not exhaustive. It has been usual to consider the lawyer's duty to his client, to the court, and to his adversary, and to assume that, as lawyer, his special duties are comprehended in these classes. Beyond these, it has been thought, his obligations are those common to all men. To me it does not seem so, I believe that in entering upon the privileges and seizing the opportunities of the legal profession you are also assuming obligations, additional to those I have mentioned, which are peculiar to that profession, but which are no more universally discharged or acknowledged by it than those others. Of these I speak this afternoon; and I propose as my subject
What the Lawyer Owes to Society.
Nor do I hesitate, disregarding some risk of ridicule from those outside of this assembly, to support my thesis in part upon the ancient maxim of chivalry that nobility imposes special obligations. For in a society which recognizes no social precedency and no privileged orders, where even the bar is an unorganized class, it has, nevertheless, many incidents to constitute it, if only it were organized, a class of special distinction and of exceptional power. The quasi-theocracy which for two centuries, page 5 until the copious invasion of various forms of dissent, gave to the clergy of the "standing order" in the colonies and States of New England a social prestige and a political power of which only vestiges remain to our day, has given way to an ostensibly complete representative democracy. The application of ethical principles to the conduct of public affairs, which in the last analysis must be governed upon ethical principles if organized society is to be better than a pack of wolves or a den of snakes, was enforced by a learned and dignified class, of simple life and manners, engaged in the study and the teaching of morals, and enjoying the confidence of the citizenship.
I am far from deploring the dethronement, which has come within my time, of the class I have spoken of; although this town, and the generation which is passing away, cannot easily forget what services to the nation and to humanity have been rendered under the direction of its pulpits and under the influence of this University, established for the fitting of youth "through the blessing of Almighty God * * * for Publick Employment in both Church and Civil State." Yet the judicious may grieve when it is suggested, as I do yet suggest, that the partial retirement of the clerical class makes room for the entrance of such an ethical director of affairs as the lawyer.
For the fact is not to be disguised that our name—the name which you are about to assume—is not altogether of pleasant savor in men's nostrils. In England, indeed, it is page 6 only one branch of our profession which has been for centuries the butt of innumerable gibes, based, one must fear, upon too much fact of greed, of falsehood, of chicanery, of general and extremely varied special depravity. The barrister has largely escaped; partly, perhaps, as soldiers in the southern swamps are said to have defended themselves against mosquitoes by putting a fat and succulent colored infant in the door of the tent. But the attorney has so accumulated infamy upon his class that at last, in England, the name of it has been abolished, and there exists only "solicitors;" upon the principle, no doubt, of a political song of long ago,
"For if we cannot alter things,
By George, we'll change their names, sir!"
But in France no such discrimination has been made by anecdotists and pasquinaders. The barrister,—the avocat—has not escaped the unmeasured satire which north of the Channel has been aimed almost exclusively at the attorney; and the brotherhood of nations finds new proofs in the identity of jokes, which, tracing their origin to the dark ages and beyond, are repeated to-day as events newly occuring in the bar of South Dakota or of New Zealand.
Whether or not it is the ancientness, the pungency, and the continuity of satirical criticism which has held the French Bar to an especially lofty standard of private and public duty, may not, perhaps, be easily determined. Certain it is, however, that in no country in the world page 7 has the legal profession maintained a higher ethical ideal, none has more constantly, none for a longer period, applied such ideal to its clients, the courts, its adversaries, and exercised its legitimate influence toward the just direction of public affairs, than in France, where until within a century no method of control of such affairs was in the power of private subjects beyond persuasion and protest. The evil tendencies which are inherent in the opportunities that lawyers enjoy had, indeed, been early developed. It is now almost eleven hundred years since the Capitularies of Charlemagne (A. D. 802) had declared that into the order of advocates "none should be admitted but men mild, pacific, fearing God, and loving justice, upon pain of disbarment." Yet even in the thirteenth century it had seemed necessary to forbid by royal ordinance "the citing of judgments which were never rendered, or of rules of common law which did not exist."
Such supervision from the head of the State, intended 'only to regulate and purify, operated also to energize. When, therefore, all France, united at last under a central despotism at the close of the fourteenth Louis's reign, found itself prostrate upon one ignoble level of subjection to absolute power, all parliamentary institutions crushed or wrenched from their legislative use, even the clergy efficient no longer as a restraint but only as a subservient ally of the monarch, the only organized body remaining with such intellectual power and such moral elevation as page 8 could effectively protest against further prostration of French liberties was the order of advocates. For organized it was, and strongly; and its organization remained in its own control. The bar of Paris, of Toulouse, of Bordeaux, kept its own roll of membership; it admitted, under strict rules, those only whom it judged fit; it struck from its rolls freely, upon slight delinquency, such as it deemed unworthy. The door of exit was wide, of entrance narrow. On the other hand, the Parliaments, and especially that of Paris, asserted a semblance of political functions; for their registration even of royal edicts, if not essential to compel obedience to them, at least enhanced their moral force; and the Parliaments, which were in their essence merely judicial bodies, were the magistracy, and the bar was nearest of kin to them.
So in that dead and hopeless period of French history which covers all the eighteenth century, except its first and last decades, it seems as if the only sign of life, the only gleam of light, was in the bar and its kin, the bench. When, at the opening of the base and profligate Regency, it was sought to impose upon the Kingdom the bull Unigenitus, which denounced the doctrines of the Jansenists, and would have made free thought as impossible as it was already difficult, it was the bar and the magistracy which carried on for half a century a contest of stubborn resistance. So it was the bar which, by its courageous and resolute attitute, compelled the restoration of the Paris Parliament when, in 1774, it had been for years suppressed by page 9 royal decree and replaced by a more subservient body. "The brightest page of French history," says Sir James Stephen, "is that which records the courage, the disinterestedness, and the learning of that company of pedantic lawyers."
I have sought thus to indicate, by an example drawn from a history not closely allied with ours or with the English history which is so nearly ours, how the united force of the class of which I speak has been made efficient for the aid and the defence of society. So also in earlier ages have great advocates, not indeed in co-operation with their professional fellows but in the discharge of their official duties, rendered illustrious service to the State. For the order of advocates, said the Chancellor D'Azuesseau, two centuries ago, is "ancient as the magistracy, noble as virtue, necessary as justice." Thus it was the lawyer Demosthenes who roused Athenian opinion against the Macedonian King; it was the lawyer Lysias who aided in overthrowing the tyranny of the Thirty. It was Cicero the lawyer—trimming politician as he finally turned out to be—who confounded the conspiracy of Cataline and drove into exile as a public enemy the proconsul of Sicily.
Do not, however, understand me to recommend to you that participation in public affairs which consists, not in influencing the opinion, informing the intelligence, or stimulating the conscience of the citizens, but in controlling the machinery through which opinion and conscience page 10 should be expressed, so that the elector's ballot, seeming to be free, shall in fact be distorted to ends never meant by him, the sinister designs of his leader and master. To such intervention you are invited by myriad tempters, offering you all the kingdoms of the earth if you will join them in their devil's work. For in no way, perhaps, more effectually than by surrendering yourselves to the management of machinery, can you disable yourselves from the promotion of principles, which is the sole end for which machinery ought to exist. Yet it is the subordination of the end to the means which has already almost expelled principle from the politics of successful parties in this country, and now constitutes a deadly menace to the commonwealth.
But for the instruction of public opinion and the arousing of the public conscience upon all manner of public questions,—for the defeat of evil measures and the promotion of good ones—even for the confusion of evil men sustaining good measures when their success would be disaster to the state—no class possesses loftier qualifications; upon none therefore rest more solemn obligations. To you much is given: of you shall much be required. To the discussion and direction of public affairs men of your order, as a French writer has said, bring "a spirit of toleration, an intelligent liberality, a quickness of apprehension, a hatred of arbitrary power, an intellectual culture, a knowledge of men, possessed by no other profession in an equal degree." And while I have not exhorted you to bring these qualities to the service of any one's page 11 political machine, which may indeed now-a-days present the only method by which such qualities can be brought into the official service of the country, yet I do with all my heart adjure you not to withhold them from that service, if without subserviency and without dishonoring connivance thev should be called to it.
For there is a fallacy current on men's lips and in their newspapers against which I distinctly and earnestly protest. It is said, when the members of a state legislature, or even of the National Congress, are classified by occupations, that there are "too many lawyers" among them. I maintain that for the public good, there are not nearly lawyers enough. It depends a little, on what you call a lawyer; and these estimates are based on every man's attribution of himself to this class or that. I remember to have heard counsel, arguendo asked by the court whether a recent statute which, in a few lines, established in a neighboring state the whole law of charitable uses and its accompanying doctrine of cy-pr'es might be regarded as a legislative declaration of existing law; and counsel suggested, by way of answer, that a personal inquiry might be made of the members as to their several views, beginning with the members of Assembly from the Sixth Ward of the City of New York. By way of guarding against possible offense I will assure you that 1 know of one out of the one hundred and sixty who would have been quite of the opinion that the statute did not relate to commercial paper or to trespass ab initio; further than this I should not dare to go.page 12
No better evidence, indeed, could be desired that more lawyers are needed in the making of our laws than is afforded by the laws that are actually made. Examine the annual or biennial volumes of any State, the one, for example, that you are best acquainted with; and say then if you find there any, the slightest, work which seems to you as if it could have come from the hand of a jurist,—I do not say from the hand of a Tribonian or a Grotius,—but of any one to whom jurisprudence is not an unknown word. No doubt you will find, slipped into the Practice Act, some unsuspected word or phrase of alteration, by which some cunning attorney-at-law seeks to get an advantage in a pending case he has been having trouble with; but if there is a measure of consolidation, of simplifixation, of broad amendment and reform of existing law, you know without asking that it is the work of men outside the law-making body, and that those within have let it go by them with an ignorant tolerance in which society finds its highest safety: in the ignorance, that is, which is unconscious how much mischief it might do and how much good it might prevent. What pass for lawyers, indeed, in the bodies where the best work is found for lawyers to do, are well below the picture of the French National Assembly, drawn by Burke, a hundred years ago: "I found that a very great proportion of the Assembly was composed of practitioners in the law. It was composed, not of distinguished magistrates, who had given pledges to their country of their science, prudence page 13 and integrity; not of leading advocates, the glory of the bar; not of renowned professors in universities; but for the greater part, as it must in such a number, of the inferior, unlearned, mechanical, merely instrumental members of the profession. There were distinguished exception; but the general composition was of obscure provincial advocates, of stewards of petty local jurisdictions, country attorneys, notaries, the fomenters and conductors of the petty war of village vexation." If instead of Robespierre, the briefless advocate of Arras, such men as Berryer and Jules Favre, who in our own day have added lustre to the bar of France and of all lands, had been there to "ride on the whirlwind and direct the storm," what might they not have done for their country and for humanity?
Much of the service I have hitherto referred to as due from you to the community of which you are a part is due specially from you only because, being lawyers, you are also men of the qualities I have mentioned as belonging to your class in a special degree. If others are in an equal degree endowed with those qualities, they are equally under obligation to be useful citizens, to promote the good and resist the bad. But there are some things needing to be done in the State which, if lawyers of large capacity and thorough fidelity do not do them, do not get done at all, or, worse than that, are badly done. There is, as you know but many lawyers, unhappily, do not, a science of jurisprudence; and it is an ethical science, page 14 though not merely that. It is a science, too, which grows; whose growth moves civilization forward, and is the measure of its advance. Its growth is the development of the moral sense of the community: and that development is declared—or should be declared—in its statute books, or, at least in Anglo-Saxon countries, in the decisions of its courts. If the jurisprudence of a nation is to have an orderly, systematic, well-proportioned growth, consistent with itself in all its parts, it must be developed under the guidance of men who are learned in it; the work of the unlearned will be the work of 'prentices or botches; and its results will be in like manner disastrous as if men of like incompetency were set to work on the engines of an ocean steamer. I do not speak, you understand, of "Acts of the Legislature" eo nomine; for of them nine-tenths have no more relation to jurisprudence than a tale of "Uncle Remus." But when the jurisprudence of the Roman Empire was to be reduced to systematic form, it was Tribonian, its most illustrious lawyer, who rendered that memorable service to all future generations. It was the most eminent lawyers in France, not the soldier whose name it bears, who compacted into the sharp and lucid language of the Code Napoleon, bringing it also up to the needs of the present century, the great body of Roman law,
But great constructive work in jurisprudence: is none to be found nearer home? Undoubtedly—if you go far enough back to find it. It is seldom, indeed, that the work page 15 of magistrates upon the bench, however great they may be, aids much in the systematic development of the law. Their work is done, from its nature, narrowly, to fit the isolated case before them: not broadly, with a view that ranges over all the past and far into the future, as well as the immediate present. Undoubtedly, when Lord Holt gave form to the law of bailments in Coggs vs. Bernard he was not so much deciding a dispute over a cask of brandy as pronouncing, with the aid of Roman and French jurisconsults, a whole system of law upon an important class of transactions. So to Marshall was presented the unique opportunity of supplying authorative and symmetrical, if not always correct or always irreversible, exposition of a great work, the new constitution of the Union. That constitution itself, certainly one of the most splendid products of the human intellect, was the work of great lawyers,—of lawyers learned in the common law of England at least; and otherwise than by a body mainly made up of English lawyers it never could have been produced.
The service peculiarly due from the lawyer to society may sometimes have been discharged in paying the debt which, it has been said, every lawyer owes to his profession. But I should shrink from urging upon any of you this view, which contemplates your making another lawbook. No doubt the noble Commentaries of Kent, and the erudite—some might say ostentatiously pedantic—treatises of the elder Story, have done much to aid in establishing a system of jurisprudence based upon their own page 16 acquaintance with Roman law, based, therefore, on the experience of ages and upon broad ethical principles, and not merely on the collation of narrow and unconnected precedents. In doing this for their profession, they have done it also for the nation, which is interested, not less than the lawyers, but more, in having law scientific, moral, symmetrical. But your work may not, just yet at least, be the work of Kent or Story. Of making many law books there is no end: and of no department of literature is that Greek saying truer, that a big book is a big evil. They come in great proportion too, I observe, from young gentlemen who find time for the work because they are not yet demanded for the service of clients; but that circumstance alone hardly seems enough to commend their work to the service of the bar or the community.
Not merely, then, in the guidance of the courts toward the wise and just declaration and application to specific cases of existing law would I have you find the main duty to the community imposed by your professional character. Indeed, while as advocates you may greatly aid the bench in justly declaring the law by the breadth of your views, the depth of your research, the persuasiveness of your logic, yet, precisely because you are advocates, your action upon the bench can be only one-sided. If you are to aid the advance of the law by judicial decision, in our curious Anglo-Saxon way which is so illogical yet works on the whole so much better than one would think, it can only be through the co-operation of page 17 opposing counsel, by the resolution of antagonistic forces, between which the law may sometimes take a forward step, a little as an apple seed is propelled by the squeeze of the thumb and finger. And sometimes sorrow comes to jurisprudence when the "hard case" which "makes bad law "is reinforced by preponderant advocacy. Three-quarters of a century ago, a great lawyer and a greater advocate, seeking to save his Alma Mater from odious legislative meddling, prevailed upon the Supreme Court to pronounce its charter a contract, beyond the power of the legislature to impair; and ever since the bar and the bench have been shaking their myriad heads over it, and the bench has been "explaining" and u distinguishing" and "limiting" it, until one begins to doubt whether it may not be a contempt of court to cite Dartmouth College vs. Woodward for any purpose except to give it a kick in passing.
which makes its judicial growth.
"broadening slowly down
From precedent to precedent"
But I adjure you to do more than this. Law will have also its statutory growth, whether you will help it or hinder it, or be indifferent and aloof. This movement will be the result of opinion; the opinion, perhaps, of the general community, guided rightly or wrongly by the lawyers; in many instances, however, the sinister opinion of one man or a dozen, acting through legislative methods when public opinion is ignorant or asleep. It may be inspired and brought to pass by the wise industry of men who know the solemnity of the responsibility they assume; who have traced the previous history of the law they propose to lay hands upon; who have learned something of the experience of other lands and other ages, and are willing to avail themselves of their examples. It may come from the restless fussiness of a self-confident "reformer," to whom the ark of the covenant has no such sanctity that he need refrain his destructive hand from it; who is ready at a half hour's notice, not, perhaps, to "take command of the Channel Fleet or perform" a capital operation in surgery, but to destroy ab into an entire department of law which was eight hundred years in building, and raise it up again in three page 19 days. This is not reform; it is not amendment; it is not growth or development; it is destruction and recreation; and to this only omniscience and omnipotence are adequate.
Aid, then, by all the instrumentalities available to you, in directing the opinion of your profession, and public opinion too, toward true reforms in jurisprudence by legislative methods, knowing that no work which a lawyer can do for his community—none, perhaps, that any man can do—surpasses in beneficence the work of making more just, more clear, or more sure the laws under which his fellow men are to live. Of the English Statute of Frauds, ill-drawn, awkward and confused as it was, a great judge said many years ago that "every line was worth a subsidy." If he had lived and waited till now he might within bounds have added that every word had cost a subsidy; and no example can be fitter to illustrate at once the value of legislative reform and the enormous mischief of reform ill-done than the "Act for the Prevention of Frauds and Perjuries."
So I should beg you to be still more sedulous in resistance to all but the most clearly wise and well digested alterations in existing law than active in promoting those changes which are beyond doubt for the better, but for the fact, of universal cognizance, that the legal profession is, almost by the law of its being, averse to change. Why it is I cannot say, but it is the fact, that no class in modern society is more conservative, more timid in promoting, more resolute in resisting, alterations in existing law than page 20 the body of which we are members. Perhaps it is—in some part it certainly is—because no one knows as well as they the prodigious evil of ill-considered changes—of wise changes unwisely made—the great cost and incidental harm even of the wisest and most cautious changes, and ultimately the most beneficent, that must accrue before society and business have completed their adjustment. Perhaps it is because they shrink from the necessity of casting aside a quantity of learning painfully acquired, and taking in place of it an infinity of conjecture, out of which may come in the course of generations the judicial construction which shall give to the new legislation something approaching the certainty of the law it supersedes. I have known it to be explained by resolving it into a fear that the simplifying; of the law may diminish litigation. This explanation, apart from the indecency which imputes vile motives to men of whom some, at least, are not quite disreputable, is based on the notion, for which there is some basis, that when a fairly well settled department of law is needlessly upset, the lawyer has no longer, so far as that subject is concerned, an advantage over the layman; but it is because neither layman, nor lawyer, nor judge can do more than guess what answer the courts will ultimately make to the questions which arise under it. And it ignores the indisputable fact that the greatest of all purveyors of work and wealth to the lawyer—greater than the man who writes his own will—is the man who makes new statutes.page 21
And yet it is not always the lawyers who obstruct. In the Great Council of Merton, now nearly eight centuries ago, it was the ecclesiastics who sought to enact the humane rule of the canon law that children born out of wedlock should be legitimated by their parents' marriage; and the lawyers in England then, as in Palestine when a great reformer cursed them twelve centuries earlier, were [unclear: ecclesiastics]. It was "the earls and barons," the men of the sword, who with one voice shouted out the famous declaration: Noiumus leges Angliae murare—" We will not change the laws of England,"—and with such effect that only after almost eight centuries, and within the past few weeks, has the rule proposed by the men who knew something outside their own parishes, and opposed by the barbarians who could not write their names, passed into the law of the State of New York.
Perhaps this example contains the suggestion of another cause of the dull conservatism of many lawyers. There is a timidity, as every one knows, born of mere ignorance. The case is familiar of the man who hung at midnight from the sill of a window. He could not draw himself upward into safety; his fingers grew bloodless and numb; his heart and brain grew faint as he contemplated the fate of being dashed to a formless mass upon the stones a hundred feet below; and when, as he commended his soul to the Infinite, his nerveless grasp relaxed he found his toes had been all the time two inches from the ground. And so it is the narrowness of vision, the imperfect intel- page 22 ligence, of many lawyers which makes them, and if they are honest, cannot fail to make them, apprehensive of changes which they think untried experiments. It is a main purpose of the education which this great University gives you that you may know there are other systems of law than that single narrow system which prevails in your province or your parish; that there is no system altogether bad, none which may not furnish profitable suggestions, if wisely used, for the amendment of other systems upon the whole far better. And this may have been at the bottom of the barons' resolute veto at Merton. "We will have none of your new-fangled Roman law; English law is good enough for us." The most savage invective of Junius against Lord Mansfield denounces him for knowing other laws than those of England: "You have made it your study to introduce into the court where you preside maxims of jurisprudence unknown to Englishmen. The Roman code, the law of Nations, and the opinion of foreign civilians, are your perpetual theme. * * * By such treacherous acts the noble simplicity and free spirit of our Saxon laws were first corrupted." And in like manner, before Mansfield, Holt, in making liberal quotations, upon the law of bailments, from the civilian Bracton, felt compelled to avert criticism by this singular apology: "This Bracton I have cited is, I confess, an old author, but in this his doctrine is agreeable to reason, and to what the law is in other countries. The civil law is so, as you have it in page 23 Justinian's Inst. lib. 3, tit. 15." And again: "I cite this author, though / confess he is an old one because his opinion is reasonable, and very much to my present purpose, and there is no authority in the law to the contrary."*
Continue then, or, if your absorption in other studies has hitherto precluded you from these, begin and pursue, not merely for the personal profit and enjoyment they will bring you but that you may the better discharge your obligation to your country, the examination of all systems, in all ages and in all lands. Your studies may not help you in your next horse case; and if your purpose has no further scope than that I speak to you in vain, and might well regret speaking to such a one at all Nor, if I were to express by a single example my notion of the life which the lawyer, though engaged in gaining and losing law-suits, may yet most nobly live, I could hardly choose better than to refer you to the creator of the science of Comparative Jurisprudence, the author of the treatise on Bailments which, though superseded by the progress of the law, remains a model of fine analysis, of compact, precise, lucid and graceful expression, and of learned and accurate statement, Sir William Jones of the Supreme Court of Bengal. It was of him that Gibbon justly said: "He is perhaps the only lawyer equally conversant with the Year-books of Westminster, the Commentaries of page 24 Ulpian, the Attic pleadings of Isaeus, and the sentences of Arabian and Persian Cadhis." Vet was no subject of human interest foreign to him. He would gladly have served the State by active and direct participation in the work of making laws. He stood for the noblest and most honorable constituency in the Kingdom, the University of Oxford; yet he was not acceptable to that illustrious body, which burns her prophets and then commemmorates them by a Martyrs' Memorial; which honors her most illustrious sons most when she rejects them; which would none of Canning because he had emancipated the Catholies; which rejected Peel because he had emancipated commerce; which refused Gladstone because he would have emancipated Ireland. From this hopeless contest he withdrew because he had not feared to oppose the subjection of America by war, or to denounce the horrors of the African slave-trade. In this defeat this lawyer served better the State than he could ever have served it by law-making for which the opportunity was gained by subserviency or by silence. If there be not many among you who may reproduce the learning, the wisdom, the power of statement and persuasion of Sir William Jones, his faithfulness and courage are within the reach of everyone. Some of you will attain to it: how many?
The special work, therefore, to which, aside from the necessary work to which you dedicate yourselves to-day, I commend you for all your lives, is the amendment of Jaw: not merely that which is in the strictest sense juris, page 25 prudence, but all law affecting social conditions. No study of social problems can be much better than vague and futile which does not presuppose some knowledge of the positive laws, written or unwritten, which have regulated society in its various conditions. The generation to which you belong will confront, for example, the question, which mine sees only looming on the horizon, of the ownership of land and the unearned increment. To deal with this wisely, no acquaintance with ancient tenures or tenures of strange countries—the several, the communal, the tribal, or whatever infinity of forms tenures may have taken—will be so intimate or minute that any detail of it can fail of aptness or utility to the solution of the momentous questions which this subject must involve. Already has forced itself upon us also the question, subordinate no doubt to that of ownership, of the public registration of titles to land. At the earliest settlement of our colonies our first progenitors, following no English example except in certain narrow districts, such as Middlesex and Yorkshire, but undoubtedly learning also from examples of continental Europe, established everywhere systems of land registration—not by good luck, but by deliberate wisdom, such as brought them, under the divine guidance and to the infinite blessing of generations to follow, to discard the English doctrine of easements of light and air by prescription, and the English rule of the road to turn to the left. That system of registration is now, throughout the older states, breaking down from its own weight. It page 26 will be for lawyers, not in their own interest, who find so vast a profit in continuing the abuse, but in the interest of the communities they live in, to find the system that is to replace it. It may well be that the wonderful Australian continent which a few years ago was but a British convict colony, yet has already given a system of elections to more than half our American States, may increase our indebtedness to her by showing us how at once to simplify and to assure the titles to our lands.
So, too, the criminal procedure of every State—nowhere I think the penal law—has come to be, especially as concerns the graver offences, in the minds of all men not lawyers, a disgrace to American institutions and a positive menace to American society. Lawyers, indeed, seeing no further than the tips of their noses, find nothing abnormal in the postponement of punishment of a serious crime for several years after its commission. Every step in the deadly delay they find to be perfectly regular and legal; and how, when each step is legal and regular, can the appaling delay of justice which is merely the aggregate of several regularities be other than necessary and right? Yet suddenly the wild justice of the popular mind asserts itself; law is crushed under an uprising which dishonors the State and shames all law: and the legal mind looks about in stupid wonder that people cannot sit by in patience while the long dull game the law provides is played out to its distant end.
Somebody—perhaps yourselves—has got to reconsider page 27 many a proposition so long accepted without question that it has come to be held as an axiom,—as fundamental to jurisprudence as in mathematics the proposition is that two things equal to the same thing are equal to each other. Yet if an accepted axiom does not express absolute and universal verity—if it is based upon obsolete conditions—it may continue when its cause and justification have disappeared from under it. It must then be—it surely will be—re-examined in the light of new conditions, and subverted. To question it, when it is first questioned, will be blasphemy; the blasphemers will become martyrs; but if they witness to the truth, the false maxim will at last be stamped as counterfeit and will cease from currency and from deluding the people. Even our bills of rights, which are largely derived from the conditions of seven centuries ago, when the citizen had few defences against arbitrary power, may need to be reconsidered at a time when everything seems to be done for the protection of the criminal, nothing for the defense of society, left naked to her enemies. And it is interesting to find this ancient commonwealth declining, within these few months, to allow the maxim nemo debet bis vexari to be once more used for the defeat of penal justice.
You see that I have sought to add to the ethical commandments which you have already received, and which have always been negative and prohibitory in character, a positive supplement. The injunction which, with neither jurisdiction nor authority, I address to you, is page 28 mandatory. When you meet the accounting which must come, be it only with your own consciences, at the close of your career, you may indeed answer like the rich ruler, to the commands "Thou shalt not rob thy client," "Thou shalt not impose on the Court," "Thou shalt not befoul or play tricks upon thy professional adversary," "Ail these have I kept from my youth up;" yet you will not have satisfied the larger and loftier requirements I would impose upon you. Unless you have done something, as your powers and your opportunities shall have served you, toward the promotion of a just opinion in aiding the growth of jurisprudence and social advance through law—still better, toward the restraint and confusion of crude, unwise, and mischievous intermeddling with existing law—you will have fallen short of satisfying the full scope of the obligations you assume to-day.
I am conscious of the burden cast also upon me by the ability and eminence of those who have preceded me in the function to which I have been called to-day. Many of their addresses 1 have received from the kindness of the Dean, sent, perhaps, as the material from which I might compile a fit discourse. Yet, while I have read with an interest qualified by the painful reflection that these were profound jurists, eminent counselors and advocates and statesmen, and that they had left little for an undistinguished practitioner of law to say after them, I was able to detect, in a phrase used by one of the most distinguished of them, a fallacy which seems to me serious, page 29 yet which possesses many minds. Nor shall I deny objecting to it with the more readiness because it comes from a member of the highest court in the nation, and to the carnal mind the opportunity to sit in review of that tribunal is as seductive as it is rare. "The motto," he says, "of your profession is Justice," I cannot accept this motto as fitly characterizing our profession; more than that, I even regard it as involving a dangerous perversion of its true purpose and its proper aims. Its motto rather should be Law: Law promoting justice—Law effecting justice; but above all things else, above justice even, Law If law can be found to be identical with justice, it has reached its ideal condition; and I have urged you, during all this hour, to devote the active efforts of your lives to make it that. But law, just or unjust,—this it is that you are to enter into a sacramental obligation to obey and to enforce; and when you propose to set your personal opinion of what is just over your obligation to obey the law, you are faithless to your oath, and you are rendering, moreover, a sorry service to the commonwealth. There was a great soldier once, but a most unadmirable statesman, who made one worthy contribution to political science when he said, "The best way to get rid of a bad law is to enforce it." Thus, too, have I heard an eminent judge, urged to some departure from absolute regularity with the words: "I suppose your honor sits here to administer justice," answer fitly and bravely: "No: I sit here to enforce law," The aim of page 30 law is, no doubt, or should be, to do universal justice: but human law, like other human instruments, attains only imperfectly its end; and where its imperfections are discovered it is the work of society, through orderly legislation and not through mobs or judicial usurpation, to correct it. But it is the purpose, and if anything a higher and more essential purpose of Law to replace Force. And whenever law is subverted by the individual, whose outraged sense of justice is not content with what law will do for him, or who will not wait for its slow movement; or by the Courts, declining their noble function jus dicere for that, jus dare which they are forbidden to exercise; or by a passionate mob, which expresses its "justice" with the halter or the scourge: society has suffered a blow—civilization, whose highest crown and development is Law, has received a check, not less but more pernicious and perilous when administered in the house of its friends.
page 31 and which among nations, as well as in nations, has already gone far, though not yet far enough, toward substituting the brief of the jurist for the club of the bully. And I welcome you to the glorious opportunity which is to come to the men of your generation, of extending to the commonwealth of nations, in greater measure than ever hitherto, the dominion of man's noblest creation; to "the federation of the world," as now to the federation of States or to the several States, where
"far-off, divine event,
To which the whole creation moves,"
"Sovereign Law, the State's collected will,
O'er thrones and globes elate,
Sits Empress, crowning good, repressing ill."
* Coggs vs. Bernard, 2 Ld. Ray., 915, 916.