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While I am speaking of contract I may add that the progress from tort to assumpsit seems to me better told than it has been before. Perhaps there is some perpetuation of what seems to me the confusion between the fraud that is wrought if a man keeps an executed consideration and will not perform his promise, and the misfortune that may be caused by not keeping a promise for which no consideration has been given. The very meaning of the doctrine of consideration is that if a man relies upon a promise made without it, he does so at his peril. Unless action on the faith of the promise is the conventional inducement for the promise, it has no effect. By conventional inducement I mean, of course, that which is contemplated, as the ground for the promise, by the bargain, whatever may be the motive in fact. Unless my memory deceives me, the false doctrine sometimes has been treated as if it were the main ground out of which assumpsit grew.
If the development of ideas and their struggle for life are the interests of the day, the interest of the future, the final and most important question in the law is that of their worth. I mean their worth in a more far-reaching sense than that of expressing the de facto will of the community for the time. On this as yet no one has much to say. To answer it we should have in the first place to establish the ideals upon which our judgments of worth depend; and the statement of such ideals by different classes would differ, at least in form. But suppose that we had agreed that the end of law was, for instance, the sur
vival of a certain type of man, still we should have made very little way toward the founding of a scientific code. Statistics would leave the effect of the criminal law open to doubt. Who can prove that the doctrine of master and servant, or the theory of consideration, helps to attain the ideal assumed? The attitude of the State toward marriage and divorce is governed more by church and tradition than by facts. Wherever we turn we find that what are called good laws are apt to be called so because men see that they promote a result that they fancy desirable, and do not see the bill that has to be paid in reactions that are relatively obscure. One fancies that one could invent a different code under which men would have been as well off as they are now, if they had
, happened to adopt it. But that if is a very great one. The tree has grown as we know it. The prac
. tical question is what is to be the next organic step. No doubt the history of the law encourages scepticism when one sees how a rule or a doctrine has grown up, or when one notices the naïveté with which social prejudices are taken for eternal principles. But it also leads to an unconvinced conservatism. For it points out that almost the only thing that can be assumed as certainly to be wished is that men should know the rules by which the game will be played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts. Legislation gives notice at least if it makes a change. And after all, those of us who believe with Mr. Lester Ward, the sociologist, in the superiority of the artificial to the natural, may see in what has been done some ground for believing that mankind yet may take its own destiny consciously and intelligently in hand.
Mr. Holdsworth is telling us a profoundly interesting story. It is one of the most important chapters in the greatest human document — the tale of what men have most believed and most wanted. It is told with learning and scientific instinct, and the book is to be recommended equally to philosophers who can understand it and to practical students of the law. Readers of M. Tarde will see that author's laws of imitation illustrated by the most striking example, and if they doubt how far it can be said that the principles of any system are eternal, will realize that imitation of the past, until we have a clear reason for change, no more needs justification than appetite. It is a form of the inevitable to be accepted until we have a clear vision of what different thing we want.
LAW AND THE COURT
SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL ASSOCIATION OF NEW YORK ON FEBRUARY
MR. CHAIRMAN AND GENTLEMEN:
VANITY is the most philosophical of those feelings that we are taught to despise. For vanity recognizes that if a man is in a minority of one we lock him up, and therefore longs for an assurance from others that one's work has not been in vain. If a man's ambition is the thirst for a power that comes not from office but from within, he never can be sure that any happiness is not a fool's paradise he never can be sure that he sits on that other bench reserved for the masters of those who know. Then too, at least until one draws near to seventy, one is less likely to hear the trumpets than the rolling fire of the front. I have passed that age, but I still am on the firing line, and it is only in rare moments like this that there comes a pause and for half an hour one feels a trembling hope. They are the rewards of a lifetime's work.
But let me turn to more palpable realities — to that other visible Court to which for ten now accomplished years it has been my opportunity to be
* From Speeches (1913), Little, Brown & Co.
long. We are very quiet there, but it is the quiet of a storm centre, as we all know. Science has taught the world scepticism and has made it legitimate to put everything to the test of proof. Many beautiful and noble reverences are impaired, but in these days no one can complain if any institution, system, or belief is called on to justify its continuance in life. Of course we are not excepted and have not escaped. Doubts are expressed that go to our very being. Not only are we told that when Marshall pronounced an Act of Congress unconstitutional he usurped a power that the Constitution did not give, but we are told that we are the representatives of a class — a tool of the money power. I get letters, not always anonymous, intimating that we are corrupt. Well, gentlemen, I admit that it makes my heart ache. It is very painful, when one spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound, to know that many see sinister motives and would be glad of evidence that one was consciously bad. But we must take such things philosophically and try to see what we can learn from hatred and distrust and whether behind them there may not be some germ of inarticulate truth.
The attacks upon the Court are merely an expression of the unrest that seems to wonder vaguely whether law and order pay. When the ignorant are taught to doubt they do not know what they safely may believe. And it seems to me that at this time we need education in the obvious more than investi