Page images

fication of the Law of Nations, were introduced instead? He, perhaps, does not know that, in order to avoid discussion over a subject of minor importance in the daily business of life, the subject has been now omitted. Neither, perhaps, does he know that, in the report of the Council of the Association made at Cologne in 1881, it was stated that these York and Antwerp rules "have become all but universally adopted"; nor that in the year before it was reported to the Association that "the first judgment of the English Queen's Bench and Appeal courts, upon a matter of general average, has not only ratified, so far as the subject under consideration is concerned, the principles upon which the York and Antwerp rules are based, but has actually pronounced, that the custom or practice which, for at least eighty years, had prevailed among English average adjusters, and according to which they adopted a contrary system of adjustment, was at variance with the common law of England."

He sneers at the changes which have been made at successive revisions. Yes, indeed, we have tried to make the Code better every time, and, however small is the aid we have received from him and his colleagues, we have remembered the words of Macaulay, that “the best codes extant, if malignantly criticised, will be found to furnish matter for censure in every page," and that they, the Indian commissioners, had done as much as could reasonably be expected from them, if they had furnished that which might, "by suggestions from experienced and judicious persons" (like Mr. Carter, for example), "be improved into a good code." At the same time we have not forgotten these words of Gibbon : "That the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may possibly arise in the exercise of power and the transactions of industry."

Mr. Carter refers, with great satisfaction, to the hasty criticisms of Mr. Amos, which seem, after all, to rest on a few definitions. How strange, indeed, his words appear beside a single sentence of those jurists of California, who, under the double responsibility of examining for themselves and for the State, reported that they "found the four codes, the Political Code, the Penal Code, the Civil Code, and the Code of Civil Procedure, as prepared by the commissioners, and enacted by the Legislature, perfect in their analysis, admirable in their order and arrangement, and furnishing a complete body of laws, the first time (they

believed) that such a result had been achieved by any portion of the Anglo-Saxon or British races"!

I may be pardoned for adding that, since Mr. Amos's work was published, I have had the good fortune to make his acquaintance, and have seen much of him, and, though I can not say that he has told me so, I am led to think that he has changed his opinion. The works of Mr. Amos and Mr. Pollock, however, both show that this Code has had no inconsiderable influence upon English opinion, and upon legislation both in England and in India. An English writer is rather slow to find good out of England, and even Pollock could say nothing better of the French codes than their showing that an imperfect code was far better than no code at all.

But, however this may be, the speculations of any number of theorists amount to nothing in comparison with experience. Our Civil Code has been copied in California and Dakota, the most western and the most central of the political communities on this continent, and it has been their law for a decade. How they find it, let the letters in the Appendix show. They were written by Mr. Dwinelle, Mr. Haymond, and Mr. Burch, who, having been concerned in the introduction of the Codes to California, may be presumed to be most observant of their operation; by Mr. Stewart, late Senator in Congress from Nevada; by Mr. Whitney, now a Senator of California; by Mr. Cadwalader, an eminent lawyer; by Mr. Sanderson, formerly Chief-Justice of the State; and by Judge Sawyer, United States Circuit Judge. The practice of ten years out weighs in importance the theories of ten professors. The Americans are a practical people, and they want something they can understand and live by.


The vilification of the Legislature is set forth in several remarkable passages of the pamphlet I am answering-passages which I will not copy, but which it is amazing that one who desires the favorable opinion of the members should throw in their faces.


Why Mr. Carter should vilify me I do not know, except it be from habit. I have done nothing that I was not commissioned by the State to do, as any one may see who will look at chapter

266 of the laws of 1857, and read it by the light of the Constitution; and I have done the best I could. It is hardly a misdemeanor to take a commission from the lawgivers of the land; nor yet felony to lay before them the fruits of obedience. But no matter. His censure does not in the least disturb me, and in the language of the lawyers, I submit it, without argument, to the judges of good taste and good manners.



MR. PRESIDENT AND YOUNG GENTLEMEN: It has been usual on occasions of addresses to law-students to give them advice about their studies in the school, and their duties to their clients and the courts, when they shall have entered the profession. I venture on the present occasion to depart from this custom, and to address you on a further duty, not less important or imperative, the duty of the lawyer to the law itself.

There are rules for human conduct which human law does not prescribe. The Author of our being and the Maker of all things has prescribed them. There are also rules of conduct which we call laws of society, rules of good manners and of good neighborhood. Of none of these, however, am I now speaking. I speak of that which we call "the law of the land"; in other words, the rule of property and of conduct prescribed by the sovereign commonwealth.

To this law what is the duty of the lawyer? It is his duty, first to learn it, next to apply it, and always to make it subserve the purpose for which it was designed-that is, to keep the peace, do justice, and thus promote human happiness. If it fails to accomplish these ends, if it works badly in any respect, it is his duty, more than that of other men, to help make it better. Why, it may be asked, is the lawyer, more than another citizen, bound to improve the law? Because he knows it more completely, sees with greater clearness the points of friction, and has the means of correcting and improving it more at his command than the unprofessional citizen. He is, in fact, a minister of the law set apart of his own seeking for that very purpose, and his duty follows his relation.

Such being the relation and the duty, what follows? It follows that whatever may be his success, whatever the stress of his business, he should never forget that he is placed where he is,

not alone to guide his clients aright, not alone to gain lawsuits, not alone to win fame or fortune, but to make the law itself better for his having lived as one of its servants, and so much the better the longer he lives. In short, the true function of the lawyer is not only to defend his clients in their rights according to the law, but furthermore, whenever he sees that the law itself is at fault, then to repair the fault so far as in him lies.

Do not misunderstand me. I do not mean that the lawyer, in his practice before the courts, should be wiser than the law. It is his great function to defend his client's rights according to the law. "Sittest thou," said St. Paul to the high-priest, "to judge me after the law, and commandest me to be smitten contrary to the law?" The relation of the lawyer to his clients and to the courts, though not more sacred, is different from his relation to the law itself. He may reason, and as I think is bound to reason, thus: This is the law, and so long as it is the law my client shall have the benefit of it. But he may also say, and should act as if he said: This law is unjust or unwise, and I will have it changed for the future if I can.

Having thus stated in general terms what I conceive to be the duty of the lawyer to the law, let me follow up the observation by showing the urgent need of the present performance of that duty. In doing so I must distinguish between the two divisions of the law, the substantive and the remedial.

Taking the latter first, and confining our view to the courts of this city and the Appellate Court, we see here the Supreme Court, with seven judges, including the two to come in June; the Superior Court with six judges, the Common Pleas with six also, the Sessions with three, one surrogate, six judges of the City Court, ten district justices, and ten police justices. This is the judicial staff of the city. What is the result? Bear in mind that it was proclaimed in Magna Charta, six hundred years ago, that "neither justice nor right should be sold to any person, nor denied, nor deferred." Bear in mind, also, that in this metropolitan city is concentrated the foreign commerce of the continent; that the daily transactions are enormous and rapid, that the stress of business will not admit delays, and that confidence between man and man depends largely on the efficiency of the law, for, though its active intervention be not sought in one transaction out of a thousand or a hundred thousand, the knowledge that it can be sought in case of need renders a resort to it in these

« PreviousContinue »