LECTURE XI. OUR LAW. BLACKSTONE AND BENTHAM AS TYPES AND IT XI. is natural for some minds to revere the past, to Lecture accept the present, and consciously or unconsciously to resist agitation and change. It is equally natural for other minds to question the wisdom of the past, to refuse to accept its lessons or results as final, to be discontented with them, and to welcome novelty as the means of effecting improvement. This mental classification obtains in the profession of the law, those who advocate change, which they call reform; and those who resist it, being content with what is, rather than to run the risks that almost inevitably accompany innovation. It has been as The contrue in this country as it has immemorially been of the bar. true in England and elsewhere, that lawyers, as the effect of their studies and position in society, have naturally been attached to what is, and averse to experiments. De Tocqueville noticed this, and servatism XI. Lecture he declared that the profession of the law in the United States was one of the great conservative and conserving forces of the Republic. Voltaire, speaking of lawyers as a class, characterized them as "the conservators of ancient barbarous usages." Rather strongly put, doubtless; but the history of the law plainly shows that the criticism is not wholly unjust. Any legal form, doctrine, or institution sanctioned by antiquity and precedent, no matter how inadequate, archaic, or unjust it may in the course of time have become, usually finds a body of defenders in the legal profession. They are not only suspicious of changes, but contemplate them with anxiety and dread. The exceptional force of established usages and precedent with all English-speaking peoples, is intensified in the English and American lawyer, and is so inveterate that radical changes are generally unwelcome, and many necessary ameliorations in the law have been forced upon the lawyers from the outside, and have been effected only after stubborn resistance on their part. Even Bacon, who strongly felt the necessity of amending the English law,' declared that "new laws are like the apothe"caries' drugs; though they remedy the disease, yet "they trouble the body.' "This conservatism has its undoubted compensations; but its immediate effect is to obstruct and delay changes after the necessity is apparent to the general observation and judgment. The final result is, however, that every step forward is, when taken, wisely taken; and with the The com pensations of conservatisin. 1 See ante Lecture X. 2 Reading upon the Statute of Uses, Bacon's Works, vol. iii., p. 304, (Montagu's Ed., American reprint). XI. single exception of the adoption in many of the Lecture States of the principle of an elective judiciary,' I do not recall any great structural changes in the law that have proved precipitate or unwise, or which had to be undone. I see signs more or less ominous of threatened changes, chief among which are those that menace the sacredness of contracts and the full enjoyment of private property.2 Happy will it be for us if in this respect we shall be as fortunate in the future as in the past. 66 opposing perma Because of this tendency in our profession to conservatism, it is well that there are some minds that incline in the opposite direction, and boldly call upon the Past to vindicate and support itself. The unfettered action of these contending forces and the ceaseless struggle thus engendered produce in the long run better results than the exclusive dominance and sway of either would give. Coleridge Coleridge in a thoughtful passage observes: "It is the chief on the "of many blessings derived from the insular char- powers of acter and circumstances of our country, that our neuce and "social institutions have formed themselves out of sion in "our proper needs and interests; that, long and "fierce as the birth-struggle and growing pains "have been, the antagonist powers have been of "our own system and have been allowed to work 66 out their final balance with less disturbance from "external forces than was possible in the con"tinental States. . . . Now, in every country of "civilized men, or acknowledging the rights of property, and by means of determined boun 66 1 See ante Lecture IV., p. 119. 2 See ante Lecture VII. progres the state. Lecture XI. Changes in the law 66 "daries and common laws united into one people or nation, the two antagonist powers or opposite "interests of the state, under which all other state "interests are comprised, are those of permanence "and progression." 1 This lecture and the next will exemplify these truths in connection with the evolution of laws and legal institutions. The conservative would never make the needful amendments in the law. The radical would err in the opposite direction of rash or unwise action. Changes in the law of any proinevitable. gressive society are, from the very purposes of law and from the very nature of society, absolutely necessary. True wisdom consists in the adaptation of law to the current state and true needs of the social organism. It has been well said that "Juris"prudence itself has become a study of the living "growth of human society through all its stages, "and it is no longer possible for law to be dealt "with as a collection of rules imposed on society, "as it were, by accident, nor for the resemblances "and differences of the laws of different societies "to be regarded as casual. Whatever has "ceased to change is dead. The essence of stu'pidity (it was said by a great Frenchman) is the 66 1 Coleridge, "Church and State," p. 19. Mr. Morley, commenting on what he calls Stuart Mill's "famous pair of essays on Bentham and Coleridge," says: "I can vividly remember how the 'Coleridge' first awoke in many of us, who were then youths at Oxford, that sense of truth having many mansions and that desire and power of sympathy with the past, with the positive bases of the social fabric and with the value of Permanence in States, which form the reputable side of all conservatisms." Critical Miscellanies by John Morley, London, 1886, paper on "The Life of George Eliot," vol. iii., p. 131. XI. Progress is life. "demand for final opinions. As Maine himself Lecture "said, the principle of progress, which is the same "thing as the law of healthy life, is a principle the law of "of 'destruction tending to construction.' So healthy true is this that it may confidently be affirmed that in a living and active society all law, whatever its form, is in its very nature mutable and temporary, except those principles of justice and right that are rooted in the moral convictions of enlightened men. These and these alone endure, and it is along these lines that the development of our substantive law and jurisprudence must proceed. The subject of this and of the following lecture is, shortly stated, "Our Law, Blackstone and Bentham as Types or Exponents of its Conservative and Radical Forces, and the nature and influence of their respective labors." I select Blackstone rather than Eldon as the typi 1 Pollock, "Oxford Lectures," No. VI., on Sir Henry Maine and his Work. Sir Henry Maine has presented this subject with characteristic elegance and ability. With respect to progressive societies, he lays it down" that social necessities and social opinion are always more or less in advance of law. We may come indefinitely near closing the gap, 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 closed. The instrumentalities by which law is brought into harmony with society seem to me to be three in number, Legal Fictions, Equity, and Legislation." "Ancient Law," chap. ii. How rapid and great are the changes which the law undergoes in active communities like those of England and America will be seen by comparing the state of the law as it existed in Blackstone's time and its improved condition as it exists to-day in both countries. The final lecture of the course is largely devoted to setting forth and illustrating these changes. (Post Lecture XIII.) In short, in little more than a century a large part of Blackstone is obsolete: at all events the Commentaries have become a very incomplete mirror of existing law. |