LAW AND REASONABLENESS

The Annual Address before the American Bar Association at Hot Springs, Virginia, on August 27, 1903.

MR. PRESIDENT AND Gentlemen

T

OF THE AMERICAN BAR ASSOCIATION:

HE first and most pleasant duty which falls upon me at this time is the acknowledgment of my deep appreciation of the very high honor of the invitation to address you at your annual meeting.

I understand it is a law of this Association, established by its founders, that these invitations are not under any circumstances to be declined; and that it has been decreed that this particular law is a command proceeding from a sovereign power, and that ignorance of the law is no excuse. At the same time it must be confessed that obedience to your mandate is not an easy task. Our professional duties are laborious and exacting. Judges, as well as lawyers, are busy men, and time for preparation is limited.

Another difficulty, which increases from year to year, is the choice of a subject. We are told that Augustus dealt the final blow to the Responsa Prudentum, the "answers of the learned in the law."

The probable cause was that the subjects were exhausted. I need hardly remind you that the answers of the learned in the law during the quarter of a century since this Association began its invaluable work, in the addresses of its presidents, the annual addresses, and the papers read, have so far covered the whole field of jurisprudence that the last three annual responses of the jurisconsults were devoted to the elucidation of a single important topic of national concern. It is, therefore, with much hesitancy that I shall invite your attention to some observations on Law and Reasonableness.

The essence and end of law are no doubt truthfully expressed in the maxims:

"Law is the perfection of reason.'

Reason is the soul of the law; and when the reason of any particular law ceases, so does the law itself."

The reason and spirit of cases make law, not the letter of particular precedents."

"Reason is the life of the law; the common law itself is nothing else but reason."

It is also undoubtedly true that the great body of the law is founded upon the dictates of right reason, natural justice, and common sense.

But, notwithstanding all this, it is an historical fact that the growth and expansion of the law from primitive custom to the present time has been a continuous

struggle between the rigid rules of positive law and the standard of reasonableness and common sense of society in its upward march to a higher civilization; and the struggle still continues. All through the centuries of the law's development in those two great systems of jurisprudence which have been adopted by the civilized world, the English law and the Civil law, there has been a constant effort to bring existing rules into harmony with advancing civilization.

The phenomenon which always presents itself in progressive societies may be thus described: On the one hand, there is a body of legal rules which by nature are stable and enduring; on the other hand, there is a society with ever-changing social necessities and opinions. From the very nature of these conditions, which are permanent, there is the inevitable result that the old rules of law cease to conform to the new facts of life; that they are not adapted to the ever-varying views of society; and that consequently they come, in part at least, to be regarded as narrow, unreasonable, and out of touch with progress and enlightened public sentiment.

To keep the rules of positive law as nearly as possible abreast of social wants and public opinion, is the difficult problem which always has and always will confront progressive nations. That gulf can never be entirely bridged. A stationary body and

a moving body cannot be kept together. We can only by unceasing effort narrow the chasm. Sometimes the spirit and temper of society are far in advance of legal rules; at other times they nearly meet. Upon the expedition with which the breach between law and social progress is lessened, or upon keeping them close together, depend, in large measure, the welfare of society and the happiness of the people. In progressive societies, says Maine, "it may be laid down that social necessities and social opinions are always more or less in advance of law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed."

Such being the position of the law in its relation to progressive societies, what have the lawyers done to help relieve the situation? Where have they stood in this long struggle between an unreasonable past and a reasonable present, between a body of rigid legal rules and an advancing civilization? Are they justly open to the charge of riveting the chains which bind the community to customs and usages it has outgrown by their devotion to technicalities, legal forms, and precedents? Have they stood with Selden when he exclaimed, "Equity is a roguish

thing"? Have they been unmindful of the fact that they are largely responsible for the existing condition of the law at every stage of social progress, and that upon them devolves the duty, in great measure, of keeping it in harmony with national growth? Have they failed to realize that the law is made for society, and not society for the law; and that it should be adapted, as far as possible, to meet the "great, complex, ever-unfolding exigencies" of life and government?

Let us first see how some of the great lawyers have answered these inquiries.

It was Coke who said: "The principles of natural rights are perfect and immutable, but the condition of human law is ever changing, and there is nothing in it which can stand forever. Human laws are born, live, and die."

It was Hale who declared: "We must remember that laws were not made for their own sakes, but for the sake of those who were to be guided by them. . . . He that thinks a state can be exactly steered by the same laws in every kind as it was two or three hundred years ago may as well imagine that the clothes that fitted him when a child should serve him when he was grown a man. The matter changeth, the custom, the contracts, the commerce, the dispositions, educations, and tempers of men and societies change in a long tract of time, and so must