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prudence?

Mr. PRESIDENT: Every Nation must stand for, em tions and duties, duties as citizens toward our counbody and represent some adequate, underlying princi-try, and duties as lawyers toward its laws and jurisple which permeates, vitalizes, and binds it together. True, all sovereignty must be founded on territory, since without territory it is impossible to conceive of National existence. But real National grandeur and National exaltation are not measured by territorial area, but are determined by the moral and intellect ual character, aspirations, ideas, aims and purposes of its people.

I offer no apology for this line of remark, since it is impossible properly to estimate the merits and value of any system of laws, dissociated from the institutions out of which those laws spring and to which they relate, and since also it ought never to be forgotten that our primary and fundamental relation is that of citizens. We were citizens before we were lawyers; the lawyer does not merge the citizen. It is not uncommon to hear it said that although we have not as yet gone to pieces, we are liable to do so; at any rate, the practical workings of our institutions are unsatisfactory, and they have failed of real success. There will be found in almost every considerable city of Europe an American colony, where it is rather the prevailing tone, especially among those without social distinction at home, to talk in this deprecatory strain, and to award to other governments and institutions a superiority to their own. As more than any other class, the lawyers of a century ago shaped and moulded our institutions, it is especially the duty of the lawyers of to-day, to show, in their lives and conversation, that they appreciate at their undiminished value the free and popular institutions of their country, and to acknowledge that howsoever much we owe to law, we owe more to liberty.

Our system of government, State and National, embodies and rests upon the fundamental proposition of the absolute and essential civil and political equality of all its citizens, whose collective will, expressed by majorities, is the rightful and only source of all political power, and the only supreme majesty. By this principle, we must stand or fall. In adopting it, we reversed the accepted doctrines of the old world, England included; which doctrines were, "that all popular and constitutional rights, all useful and necessary changes in legislation and administration, can only emanate from the free will and concession of the monarch or instituted government." You will recall the discussion of this subject by Mr. Webster in the celebrated Hulsemann correspondence. The political doctrine he asserted, as well as the elevated style and the sustained dignity, force and logic of this remarkable State paper, combined to fix upon it the attention of the contemporary world. Is this fundamental prin- Our institutions failed of success! I deny it. A ciple sound? As applied to our government, it has thousand times, I deny it! In the name of every man, now stood the test of a century, overcoming our fears, who like myself, has come through the terrible or'strengthening and establishing our faith. I do not deal of poverty, and knows what it is; in the name of purpose to discuss its soundness. The stage of discus- the unnumbered and unborn thousands of generous sion ended with us more than a century ago. We then youth, who must yet walk barefoot upon the heated adopted it. We staked everything upon it; our insti- ploughshares of this ordeal, I deny it; for the genius of tutions to-day have no other foundation, and by it "we our institutions will attend them, unseen throughout must sink or swim, live or die, survive or perish." We the fiery trial, and give them a safe deliverance. What, must believe and maintain, indeed, that such a gov-let me ask is the cause of our unexampled growth, our ernment rests upon the broadest, deepest, and most matchless prospects? Not alone, or chiefly, a favored secure of all possible' foundations, since it rests upon climate and a fertile soil, but the magnetic force and the consent and interest of all; in a word upon the marvellous power of our free institutions, whose chief sovereignty of society at large, which possesses all the glory is, that every man is equal before the law, whose powers necessary to preserve and promote the general priceless benefaction is, that every man has equal opwelfare and safety, 64 powers which," says Blackstone, portunities. no climate, no time, no Constitution, no contract, can ever destroy or diminish. 1 Black. Com. 245.

It is, Mr. President, the laws and the legal in stitutions of such a Nation, founded upon the sov

It would seem to result from this that our self-govereignty of the public will, with the cherished tradierned Nation is fitted to live, that it ought to live, and tions and rich heritage of its past history and achievethat it will live so long as it promotes the interest, pro- ments, with its present greatness and grandeur, with tects the rights and liberties, and secures the general the bright visions of the future which it opens to our welfare and happiness of its people. view, and which expanding illimitably as we gaze, swell our hopes and exalt our pride; a homogeneous people, widely distributed over a Territory of more than imperial extent, with a common language, with common interests, with common aspirations and hopes; it is the laws and legal institutions of such a country, that are placed under the immediate guardianship of the bar of America, and in no small degree of this association, which is National in its membership and objects.

Let us rise, if we may, to adequate conceptions. We have already a population exceeding 50,000,000, a number greater than all the other peoples who speak the English language, inhabiting 38 States and 9 Territories, reaching in unbroken continuity from ocean to ocean, and from the lakes to the gulf. Behold the map of our country. How fortunate that the great mountain ranges and the intervening rivers run from north to south, nature's eternal ligaments. If the Rocky mountains or the Mississippi river had been co-incident with what was ere while known as Mason and Dixon's line, the Nation probably had not come out of the civil war undivided. Consider not only its territorial extent, but the variety of climate, soil, productions and resources. Territory suited to the most varied agriculture, vast plains adapted to grazing; coal and iron lying side by side; long stretches of mountain ranges rich with deposits of the precious metals. If we apply to the future the law of our past growth (and why may we not?), there are those present who will live to see our country with a population of 100,000,000 of people.

we,

Shall the lawyers of America, be insensible to the responsibilities growing out of our two-fold rela

The lawyers of America ought especially to remember that the strength of a Nation largely depends upon its laws and the manner in which they are administered. Are the laws just and are they justly administered? The inquiry must be answered by the

*In one of the greatest of all his speeches, "For Conciliation with America," March 22, 1775, Burke observes of the American Colonies, "in no country, perhaps in the world, is the law so general a study. The profession itself is numerous and powerful and in most provinces it takes the lead. The greater number of the deputies sent to Congress were lawyers. I hear that they have sold nearly as many of Blackstone's commentaries (then recently published) in America as in England."

"

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divine test. By their fruits, ye shall know them.
Do men gather grapes of thorns, or figs of thistles ?"
Justice is the fruit of good laws, well executed; and
"Justice," says Sir James Mackintosh, in his famous
lectures, delivered in Lincoln's Inn Hall, is the per-
manent interest of all men and of all Common-expedient.
wealths." Conscious of its general truth, we give a
ready assent to this sentiment, without often pausing
to inquire why it is that justice is of such command-
ing and supreme importance to the Nation as well as
the individual. It is the justice of good laws, well en-
forced, that restrains and punishes the criminal; that
erects the only effectual barrier against the uncurbed
and multitudinous passions of men as they come surg-
ing on with the power of the ocean, and proclaims
"thus far and no farther;" that protects with abso-
lute impartiality every right recognized by the law,
whether in favor of natural persons or corporate, of
the weak or the strong, against any who menaces or
invades it; that stands as the impersonation of the
highest attribute of God, not passively with her scales
in equipoise, but with flaming sword, to guard the in-
jured and the innocent, and to strike down the high-
handed or the fraudulent wrong-doer.

The most satisfactory ideal, I have ever been able to form of justice is embodied in the picture of a judge, courageous enough "to give the Devil his due," whether he be in the right or in the wrong.

It is to protect public and private rights that courts, with their judges and officers, their jurisdiction and machinery, are established and maintained. Their usual function, their most obvious use is to decide civil and criminal causes. But this is far from the measure of their usefulness. We readily see how important the admistration of justice is to the individual but why is it so important to the Nation. What however, let it be asked, is the Nation but the aggregate of individual citizens? In our times, certainly in our country, no government is secure that does not rest upon the interest and affection of the governed. dinarily when things are moving on in the even, accustomed tenor of their way, we lose sight of the vital dependence of National life upon National justice But let the safety of the Nation be threatened from within or without, in the pressure and stress of such an exigency, which comes sooner or later to all Nations, then is instantly perceived and felt the vital relation between the National justice and the National existence. If all interests in the State, those of labor and those of capital, which are always closely allied and rarely antagonistic except as the result of laws which operate unjustly upon the one or the other; if all persons within the State regardless of birth, race, religion, or condition feel that the State is the highest embodiment of practical beneficence, and surely to be relied on to do equal and exact justice to all men and all interests, then in the moment of peril, all persons rise and rally, dilated and transfigured by a sublime and irresistible patriotism, bringing as free-will offerings their treasure and lives to defend and preserve laws and institutions which they have found to be so dear. Then especially it is that the strength of popular institutions, such as ours, is revealed and demonstrated.

hand, the eulogies so often pronounced upon it, or on
the other, the complaints so frequently made against
it. Such a survey will moreover tend to define the ex-
tent to which the "choice and tender business" of in-
troducing changes therein seems to be practicable and

Now the great fact, which as we approach this subject meets our view, is that the common law (including in the phrase "common law" as here used, the supplemental equity system of the court of chancery which grew out of the common law and constitutes a part of it), underlies the whole system of American jurisprudence. The expression "the common law "is used in various senses; (a) sometimes in distinction to statute law; (b) sometimes in distinction to equity law; and (c) sometimes in distinction to the Roman or civil law. I use it in this address in the latter sense. I do not stop to inquire how the common law came to be introduced here, and adopted by us. I deal with the fact as it exists, which is, that the common law is the basis of the laws of every State and Territory of the Union, with comparatively unimportant, and gradually receding exceptions. And it is indeed a most fortunate circumstance, that divided as our TerOr-ritory is into so many States, each supreme within the limits of its power, a common and uniform general system of jurisprudence underlies and pervades them

all.

If these observations be well founded, can the lawyer, statesman or citizen, conceive any inquiry more important than an examination into the character and condition of the laws and jurisprudence of his country.

I therefore purpose to attempt a survey, necessarily brief, of the general nature of our system of laws and its practical workings, with a view to see how far it is consonaut with our political institutions, and adapted to the temper and wants of our people, and with the further view to see how far it deserves on the one

It is observed of the constitution of the human mind, that it "continually oscillates between an incli nation to complain without sufficient cause, and to be too easily satisfied." Guizot Hist. Civ. Europe, Lect. 1. Either extreme is injurious. If we erroneously conceive an institution or system to be perfect, it induces self-satisfaction and inactivity. If we magnify its defects, it may discourage the needful attempt to remedy them. Let us come then to this inquiry, not as partisans, nor with the zeal and bias of the advocate, but with the "cold neutrality of impartial judges." "Paint me as I am," was the command of Oliver Cromwell to Lely. "If you leave out the wart, the scars, or the wrinkles, I will not pay you a shilling."

Taking into consideration the genius and situation of our people, and the nature of political institutions at which, with this view, I have already glanced, the inquiry presents itself, what is the general character of the common law? What its adaptation to our people and our situation? what its merits? what its defects?

The first observation I submit is, that the common law, as well as the institutions which it developed or along side of which it grew up, is pervaded by a spirit of freedom, which distinguishes it from all other systems and peculiarly adapts it to the institutions of a self-governed people. It is clearly established by the laborious and learned researches which have been more recently made, that the germs and elements of this law and of English polity are of Germanic origin. Stubb's Const. Hist. ch. 1, et seq. The Saxon conquerors of Great Britain were not mere bodies of armed invaders. They went to England during several centuries in families and communities. And what manner of men were they? Guizot, certainly no partial witness, dwells upon the fact that the distinguishing character of the Germans was "their powerful sentiment of personal liberty, personal independence and individuality." He affirms and repeatedly reiterates, that it was they who "introduced this sentiment of personal independence, this love of individual liberty, into European civilization; that this was unknown among the Romans; unknown in the Christian church; and unknown in nearly all the civilizations of antiquity. The liberty which we meet with in ancient civilizations is political liberty-the liberty of the citizen, not the

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personal liberty of the man himself." Hist. Civ. Europe, Lect. 11.

Thus conquering and colonizing England, they carried with them "from lands where the Roman eagle had never been seen, or seen only during the momentary incursions of Drusus and Germanicus" (Freem. Norm. Conq., ch. 1), their language, their religion, their customs, their laws and their organizations. These were indigenous-homebred, without trace or tincture of the Roman law and institutions. Digby, 11, 12. They borrowed nothing from antiquity or from surrounding people. They founded, and in the course of centuries their successors and descendants, the people of England, built up their institutions on their own model. Macaulay speaks of this with his accustomed vividness. "The foundations of our Constitution," he says, "were laid by men who knew nothing of the Greeks, but that they had denied the orthodox procession and cheated the crusaders; and nothing of Rome but that the Pope lived there. Those who followed contented themselves with improving on the original plan. They found models at home; and therefore they did not look for them abroad." Essay on Hist. In words, well known, the author of the Spirit of the Laws, referring to the checks and balances of the English Constitution, says: "This beautiful system has been found in the forests of Germany." Ce beau système à été trouvé dans les bois. Montesquieu, Book 11, ch. 6.

This love of personal freedom and independence was impressed upon the institutions they founded, or adopted or modified.

Learned investigators differ concerning the extent to which Roman law existed and prevailed at the time of the Saxon conquest, and the extent to which it was adopted or incorporated into the English laws, usages and institutions. But there is a universal assent to these propositions, viz., that the Saxon spirit of freedom was embodied in the various local courts; that it was in these popular tribunals that the principles of law and local government were cultivated and disseminated; that the Saxons breathed into the English government and institutions "a spirit of equity and freedom which has never entirely departed from them." Mackint. Hist. Eng., vol. 5, ch. 1; Reeves Hist. Com. Law, Introduction by Finlason; and that in the course of time the common law intertwined its roots and fibres inseparably into the Constitution. polity, local, and municipal institutions, the civil and criminal jurisprudence, the family relation, and the rights of person and of property. So from an immemorial or early period, the local territorial subdivisions of England, such as towns and parishes,enjoyed a degree of freedom and were permitted to assess upon themselves their local taxes and manage their local affairs. The rate-payers were thus dignified by being an integral part of the communal life; the founda.ions of municipal liberty were laid; political power was decentralized; knowledge of the laws and reverence for the obedience to them were constantly taught by a participation in their administration and enforcement. This is exactly the opposite of the systems prevailing on the continent, where the central power absorbs, governs, regulates every thing, thereby destroying municipal freedom and the capacity to enjoy and exercise it, as well as the power to defend and preserve it.

In our country, this system of decentralizing political power, and of intrusting the direction of local affairs to the local constituencies, has from the earliest colonial periods been carried to a much greater extent than in England. As you pass from one end of this country to the other, alike in the older regions and in the newest organized settlement, you will see the af

fairs of each road-district, school-district, township, county, town and city locally self-managed, including the administration of local justice. Every township in the United States has a local court with power to summon a jury of the vicinage, thereby bringing justice home to the business and bosoms of the people, and making it their own affair. We are somewhat apt to look with disdain upon the courts held by justices of the peace. But in reality, we have few more useful institutions. The eyes of the ordinary justice have not indeed been couched to the "gladsome light of jurisprudence." He may be prone to make technical mistakes, but in general, he manages by himself or the jury to work out substantial justice in the decision of the disputes arising out of the everyday affairs of the people. It is in no slight degree instructive to trace the institutions of this new country back to the germs of the Saxon or Anglo Saxon polity, for when we touch to-day, even in our frontier settlements the electric chain wherewith Providence hath bound the ages and the generations of men together, we discover that we are in historic communion with rude and remote ancestors although separated from us by seas, mountains, and centuries.

The States of this country bind together the congeries of local municipal institutions, which they severally create and regulate independent of Federal control; thus happily preventing a concentration at the National center of the governmental power and duty of legislating for and regulating the affairs of local communities throughout a country of such vast extent, that with its exact situation, wants, and interests, it would be impossible for Congress to become accurately acquainted.

So in the ascending scale, the Federal Constitution constitutes the States and the people of all the States into a National government. It defines the relations of the States to each other and to the general government, and limits the power of the States under any pretext, to deprive any citizen however humble of the great primordial rights of freedom and equality before

the law.

Magna Charta remains to-day one of the chief foundations of English liberty.* Its chief glory is the provision "that no freeman shall be imprisoned or diseized of his freehold, but by the lawful judgment of his peers or the law of the land." This provision, memorable in its origin, historic in its associations, luminous with the light of universal justice, beneficent in its effects, and long ago embodied in all of the State Constitutions, has been recently carried into the Federal Constitution, thereby placing the rights of life, liberty and property, as against invasion by the States, under the protection of the National authority. The ancient lawgivers, to induce the highest possible veneration and esteem for the laws, taught that they came from Heaven and were sacred. If any human work ought to be regarded with sanctity by us, it is the Constitution of the United States. Unmatched and matchless instrument; source and guaranty of National life, of general prosperity and of countless blessings-making the States and the people one great, free, happy, united Nation.

If the Supreme Court during the period of active National development covered by the long official career of Chief Justice Marshall had put a narrow and inelastic construction upon the Federal Constitution, so that it could not have expanded with the growth and answered the necessities of a great people, it

*"The whole of the constitutional history of England is little more than a commentary on Magna Charta." Stubb's Const. Hist., vol. 1, ch. 12. Magna Charta is the key-stone of English liberty. Hallam Middle Ages, vol. 2, chap. 8.

would have been calamitous to an extent no words can portray, and no imagination can conceive.

Marshall's judgments upon the National Constitution are among the most original and massive works of the human reason. They are almost as important as the texts of the Constitution which they expound. Some of them were indeed criticised at the time; but they have immovably established themselves as right in the general judgment of lawyers, public men and the people. Although changes in political parties have been reflected in the personnel of the bench; although unforeseen crises in the National life have been reached and passed, it is remarkable that on not one of his many judgments has been written the word "overruled," and equally remarkable that no existing political party proclaims or holds tenets or doctrines inconsistent with the principles on which those judgments rest. They have become primal lights, shining with the steadfast and silent fidelity of the North Star or the Southern Cross, for the guidance of the inquirer after American constitutional law.

For nearly fifty years after his death, the Nation failed to show in any overt manner an adequate appreciation of the simplicity, worth, and dignity of his character, and of his extraordinary and unequalled judicial fitness and qualities; at all events it failed to display any public memorial of gratitude for those labors which not only so greatly contributed to make the Supreme Bench so illustrious, but which enabled the country to attain unto its present stature without any strain upon the Constitution. The bar and the Nation have at length, though tardily and since our last meeting, shown themselves worthy of the inheritance of such a name and of such labors, by erecting his statue, executed by the gifted son of his loved and eminent associate, to the end that the chief executive, the legislator, the suitor, the lawyer, the judge, and the citizen, may in all coming time, as they go to or return from the capitol, be reminded of the thoughtful features, the calm majesty, the placid courage, the lofty character, the inestimable public services of him whose uncontested and unenvied title is, that of the great chief justice.

Consonant with the popular character of our institutions are the grand and petit jury. They are expressions of the free and practical spirit of the common law. They have a value, a deep value, too often overlooked, beyond the specific functions they exercise. The jurors acquire and disseminate a knowledge of the laws among the local communities from which they come, and to which they return. We ought doubtless to reform the abuses of administration in the jury system. But the complaints against the system, so far as well grounded, arise largely from inexperienced or incapable judges, or from unwise statutes curtailing the powers of the judge in jury trials to those of a mere moderator. I have given to this subject some observation and reflection, the results whereof I have elsewhere expressed. I will not here repeat them further than to re-affirm that in my judgment the jury is both a valuable and an essential part of our judicial and political system. It is not simply to be venerated as a reminiscence, but prized for its usefulness. Its roots strike deep into the soil and cling to the very foundation stones of our jurisprudence. The system belongs to free institutions and tends to fortify and perpetuate them. I quite agree with Chief Justice Taney, than whom few judges have had wider experience and none, perhaps, have been more capable of forming a sound and unimpassioned judgment. He has left on record his deliberate opinion that our liberties are closely bound up with the preservation of the jury. Tyler's Life of Taney. I protest against the continentalization of our law. I invoke the conservative judgment of the profession

against the inconoclast who in the name of reform comes to destroy the jury; against the rash surgery which holds not a cautery to cure, but a knife to amputate and excise.

It is no part of my purpose to institute a comparison between the civil and the common law, the one or the other of which constitutes the foundation of the jurisprudence of every civilized Christian State. It is undoubtedly true that abstractly considered in its entirety as a mere system of jurisprudence, the civil law, elaborated and matured by Rome in the height of her civilization was, until less than a century ago, superior to the common law, whose foundations were laid in the twilight of the Nation, and which had not kept pace in growth with the development and progress of the English people. The feudal system in its day made serfs of the masses. It was a system in its nature at war with commerce. It was inimical to peaceful pursuits. Out of its logic sprang the most baleful doctrine that has blighted the English law, the doctrine of tenure. To gratify ancestral pride and maintain family splendor, the feudal aristocracy tied up the landed property in the iron fetters of tenure; and although it constituted the wealth of the Nation, it was withdrawn from commerce and could not serve as a basis of credit. The feudal system is the source of the land-laws of Great Britain, which still press with such crushing weight upon the agricultural and industrial classes. What singular phenomena we frequently witness as the result of opposing forces. For example: Feudalism as a military system was logically compelled to ignore the rights of woman. She could not render military service. Upon marriage, her legal identity was lost-merged in that of her husband; and the old common law pressed this fiction inexorably to all its logical consequences, consequences which so often shocked the moral sense as to lead the court of chancery timidly to take the wife partially under its benign protection. At the same time, it is curious to observe that it was feudalism in its effects upon the domestic life and manners in the castle, that gave to woman, to the wife and mother, an importance they never had before, and have never since lost. Having done its work, feudalism is happily gone, but its choicest flower, the elevation, companionship and recognized diguity of woman still lives, and its fragrance yet fills the air; and her legal rehabiliment is the work of our own time.

But with the growth of commerce, the world's great civilizer; with the advancement and elevation of the people and their constant progress toward liberty; with the establishment and growth of the principles of equity under the great Hardwicke, and a long succession of illustrious equity judges; with the disappearance from the law courts of the refinements, subtleties, and artificial logic of the schoolmen, which so long poisoned the common law; and taking law and equity as constituting together one single connected system of jurisprudence as that system exists at this time in Great Britain; and in America it is, I think, with all of its defects, the most splendid system of enlightened and practical justice, as applied to the affairs of mankind, that the world has ever witnessed.

The Roman law, on the revival of learning, conquered the nations of continental Europe. But the English people sturdily resisted it, and as a system it obtained no foothold on English soil. Many of its enlightened and useful principles have been introduced into, and have thereby enriched the English law; but the common law has always maintained itself intact as a competing, distinctive system. It must be confessed that it lacks the artistic symmetry of its great rival: but it was better adapted to the institutions and character of the English people, and was for them at least, as it is for us, the better system.

It is not a speculative system. It has not been excogitated by doctrinaires and built up from without as a work of art. Its merit is that it is based upon the long experience of mankind; has grown out of real transactions, actually litigated and recorded. The principles of a judicial judgment, settled and announced after the argument of counsel, limited to the precise state of facts which the particular case presented, added that much, but only that much, to the existing mass of legal principles. The value of our system of law as we now have it is that it embodies the wisdom of time and long experience. "Everybody is wiser than anybody," said Talleyrand, and truly; and it is this general, accumulated wisdom that has been carried into our law.

Lord Hale, in his short tract on the "Amendment and Alterations of Laws, every word of which is golden, three times declares that "Time is the wisest thing under heaven," and that "time and long experience is much more ingenious, subtle and judicious than all the wisest and acutest wits co-existing in the world can be."*

The most distinctive feature of the common law of England and America is the rule of judicial precedent or the binding force of adjudged cases as rules of decision for like causes. In no other system of jurisprudence is such force given to judicial judgments. The result is that elsewhere than in Great Britain and America the judicial reports are few, and of little practical use since judicial judgments have no authority, and no higher rank than the expositions or commentaries of private writers. The corresponding result is that in 1881 the judicial reports in England numbered 2,944 volumes, and in this country 3,000; and they are increasing at the rate of over 100 volumes a year.

Where is this multiplication of reports to end? Is it to go on unchecked indefinitely? Is it desirable or practicable to check it? How far is it an evil, and what is the remedy? These, Mr. President, are inquiries of such pressing and serious moment that they may well engage the attention of the association.

I suppose it to be undisputed that up to this time the existence of the Law Reports cannot be regarded otherwise than as an inestimable possession. Even Bentham, the bitter opponent of what he derisively styles "judge-made law," and advocate of that to which he

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gave the name of codification, declared of the "Report Books (which in Benthamese stands for law reports) that "the greatest quantity of wealth possessed in this shape by any other nation is penury in comparison of that which has been furnished by the English common law. In this point of view (as a rich storehouse of materials for legislation; such a storehouse that without it no tolerably adequate system of laws could be made) it is a blessing even now. As a light to the legislator to assist him in making real law (that is, statute law), it is a matchless blessing; but this sham law (that is, judgemade law), as a substitute to real law, is a curse. Time was when for want of recorded experience the pen of the legislator could find no tolerably adequate indications for guidance. Time was-but that time is now at least at an end."*

To the subject of codification I will presently make a brief reference; but since it is clear that down to the present the law reports are such invaluable repositories of legal principles, the inquiry I wish now to consider is, whether they have lived out the period of their usefulness; that is, whether their continued publication is a benefit or an evil. Undoubtedly it were better that many of the volumes of reports of inferior or over-worked courts had never appeared. Undoubtedly the weighty advice of old Bulstrode, so quaintly expressed in the dedication of his second volume, in the time of the Commonwealth, over two hundred years ago, has been too often disregarded: "That as the laws are the anchor of the Republic, so the judicial reports are as the anchors of the laws, and therefore ought to be well weighed before put out." Undoubtedly it is to be regretted that so many cases have been and continue to be reported that contain nothing new or valuable.

But the inquiry is, Have we reached a stage in the history and development of our law when it is desirable that the doctrine of stare decisis shall cease? That no more law reports should be put out? That they should be superseded, by extracting from them all that is valuable and transmitting it into statutable form? It does not appear to me that the general answer to these several inquiries is difficult. The law, as a result of the ever-occurring changes in the condition of business and society, and of legislation, is constantly changing. How are these changes authoritatively to be ascertained and authenticated? The old is to a great extent so well settled and known as to have become

unknown and needs interpretation and definition. And as between the old reports and the new, the experience of every lawyer and judge is, I think, that the new are the most useful because the most needed; and while this is felt to be so, the publication of reports of adjudged cases will continue.

*"It is most certain," says Lord Chief Justice Hale, "that time and long experience is much more ingen-elementary and indisputable. It is the new that is ious, subtle and judicious than all the wisest and acutest wits co-existing in the world can be. It discovers such varieties of emergencies and cares, and such inconvenience in things that no man would otherwise have imagined. And on the other side, in every thing that is new, at least in most things, especially relating to laws, there are thousands of new occurrences and entanglements, and coincidences and complications that would not possibly be at first foreseen; and the reason is apparent; because laws concern such multitudes, and those of various dispositions, passions, wits, interests, concerns, that it is not possible for any human foresight to discover at once or to provide expedients against, in the first constitution of a law. So that in truth ancient laws, especially that have a common concern, are not the issues of the prudence of this or that council or senate, but they are the productions of the various experiences of the wisest thing in the inferior world, to wit, time, which as it discovers day after day new inconveniences, so it doth successively apply new remedies; and indeed is a kind of aggregation of the discoveries, results and applications of ages and events, so that it is a great adventure to go about to alter it, without very great necessity, and under the greatest demonstration of safety and convenience imaginable." Hargrave's Law Tracts.

*

*

*

The inquiry however recurs, Is this to go on forever? If not, when and how is it to end? Will it break down under its own ever-increasing and insupportable weight, and end ju eliminating the doctrine of judicial precedent from our law, and substituting the continental system? Or will it have its end in superseding the law reports by codification? Or will it have

some other issue?

We have two great divisions of law-statute law and case law. The statutes are frequently fragmentary, 66 cross and intricate," superimposed one upon another. Case law has to be sought in almost numberless reports, and often among conflicting decisions. Our law is thus fairly open to the three-fold objection of want of certainty, want of publicity, and want of convenience. Its existing condition urgently calls for

*Letter IV of "Jeremy Bentham, an Englishman, to the citizens of the several American United States" on the codification of the law, 1817.

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