University of Nebraska College of Law - Yearbook (Lincoln, NE)

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Latin regime which resorts to revolution instead ot a writ of Quo Wfarranto. A century of opposition to the power of courts over unconstitutional legislation has left the doctrine firmly intrenched in our polity. But where the constitution is constructed and recon- structed by lawyers and on legal theories, where questions of the highest economic and social import have to be passed upon by the courts in determining private controversies, the strain upon the law and upon the machinery of its administration is necessarily very great. It restrains, not individuals alone, but a whole people. And the people so restrained is apt to be jealous of the visible agents of the restraint, and to charge every departure from the social or eth- ical demands of the moment to warping of the law by crafty lawyers. But I speak of respect for In-zu, not of respect for Ia'zuyc'r.t. For it lawyers do not respect the law, who will? Respect for the law must begin with us. The bar has maintained a wonderful standard in this country when we consider how zealously we have wrought to turn the profession into a mere trade. XVhen we reflect that counsel is an oficer of the court, charged with the duty of assisting the court in the administration of justice, it seems difficult to con- ceive that counsel are hired by the year as part of the administrative staff of organizations that are everyday litigants to assist them in evasions of the law. WVe have gained much in some ways in unify- ing the professiong but in degrading the honorable position of counselor at law to that of a hired servant, we have lost quite as much as we gained. I do not question that all large enterprises must have their regular attorneys, employed for their business alone. On the other hand, to have the counsel who appears in court and conducts arguments and tries causes appear in the livery of a liti- gant is a distinct misfortune. I do not for a moment advocate any scheme so chimerical as division of the profession in America. But I do say that the commercial standard must be discarded and the professional standard restored, or we shall ourselves have dealt a sad blow at public respect for law. Today the growing point of law is in legislation. Judicial law- making is sterile. The growth of the future will take place through deliberate, conscious enactment, not by chance application of anal- ogies as causes arise. But the province of legislation in legal mat- ters is greatly misconceived. Laws are looked on as a sort of elixir of life for the body politic. Every one has his legislative pink pills or boluses or invigorating nervous essences to prescribe. The stat- ute-books teem with new laws on matters where the substantive 79

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quire that View of litigation from attendance on our courts regard the law as a set of arbitrary, artificial shackles upon legitimate enter-V prise, to be evaded as best ,ne may. Nor should we be surprised that laborers, who sit upon juries and, under the rules of the game, are exhorted by counsel to return verdicts on impulse and sympathy and prejudice, while the umpire-judge submits abstract, technical, colorless written instructions, unintelligible to the lay mind,-I say we should not be surprised that they too, when courts declare statutes they regard as of the highest. importance invalid for conflict with dogmas they have been taught to hold obsolete, should look upon law as a body of arbitrary restrictions, to be avoided under the rules of the game, if possibleg if not, then as best they may. I do not say that all of the current disrespect for law is due to the causes I have suggested. Wfhere the people make the laws, it may be that lack of respect for what they make and unmake at will is inevitable. It may be that an imperative stage of law requires authority to make its rules effective. It is true also, as I have said, that there will always be dissatisfaction with law and distrust of lawyers. justice, which is the end of the law, is the ideal compro- mise between the activities of each and of all in a crowded world. The law seeks to harmonize these activities and to adjust the rela- tions of every man with his fellows so as to accord with the moral sense of the community. Wfhen the community is at one in its ideas of justice, this task is not so difficult. NVhen the community is divided -and diversified, and groups, and classes, and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult. In truth, it is impossible that legal and ethical ideas should be in entire accord in such a society. The individual looks at cases one by one, and measures them by his individual sense of right and wrong. The lawyer must look at cases in gross, and must measure them by an artificial stand- ard. I-Ie must apply the ethics of the community as laid down in the law, not his own. And this divergence between the ethical and the legal, as each individual sees it, makes him say with Luther, good jurist-, bad Christian. In the United States, political jealousy affords a special reason for public distrust of the lawyer. None of us would agree to the ,BRING Trl BEAR HLLTHE Fnwf-R5 nr: YD'-IR MIND, NDT THFIT YDLI MHY 51-UNE, BLIT THFIT vmrurz mnv TRIUMPH Hun YDUR r:nu5E PRcx5PfR. vs,

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principles of the common law were abundantly sufficient. Only the lawyer can legislate effectively in purely legal matters. He alone knows the old law, the mischief, and the practicable remedy. He, at least, can see that to enact new laws declaring what was com- mon-law already is confusing rather than elucidating the obvious. He alone can deal with the problem of today, how to CLd7l1'l.71'ZiSf67' the law to meet the demands of the world that is. Covenants, says Hobbes, without the sword avail nothing. New laws are Eptsneeded, but rather a more efficient and effectual machinery for enforcing what we have. lTo make the law respected, we must pro- vide laws that can be obeyed and can be enforced, must provide adequate machinery to enforce them, and the bar must devote its energies to the impartial administration of them to great and small alike. This is an honorable work, and, like all great work, it must be done, not for applause or for reward but for its own sake. lOut o it, as in so many other crises in our legal history, will arise once more, unimpaired in its essential lines, that 'fliving temple of jus- tice, that immemorial and yet freshly-growing fabric of our common law of which, as Sir Frederick Pollock has put it so well, the least of us is proud, who may point to so much as one stone thereof and say, the work of my hands is there. ig Z f?i-- 5, x 35. v.-V, 'gy-'7,'f. ,. 3 a ohcxgmqiitgalffhillgi Nvsqvka 'l Tl - 4.4. , qi , N'1Is1Xi4?4 ' AU'ii1i':' - J i v - , Lxvvlg f r- if K- l 1,5 st t fst'i?ll9i -7 fi .i ris it swift Qt get 'sw ei- Kr- 5 f wffff-f nf .w-. Nl --5 Qs1l5JL , xghlff All ' ' bg. 'l , N. 'llllll A W 80