THE LEGAL PROFESSION AS A CONSERVA

TIVE FORCE IN OUR REPUBLIC*

Mr. President and Gentlemen of the Law School:

There is a great difference between the ideal and the actual in every profession. Very few men in any profession realize their own ideals. But not the less, we must all have ideals and must seek to reach them, if we would ever attain to anything better than the very commonplace work which occupies the attention of most men in all professions. And there are a few men, who, if they do not reach their own ideals, at least make themselves examples of the very highest success and power. There are such men in the ministry. Who can fail to think of the great man who for fifty years filled the pulpit of this church-Leonard Bacon? There are such men in the law; and while, perhaps, our minds, in searching for them, would not naturally turn at once to the bar of this city, I can not but recall my early impressions as a student in the college, and later in this Law School, and the admiration which I felt for Baldwin, Kimberly, Ingersoll, Blackman, Dutton, and others who have passed away, as well as for several eminent lawyers who still live to adorn the profession of their choice.

*Delivered before the graduating class at the sixty-eighth anniversary of Yale Law School, June 28th, 1892.

I have never ceased to regard the law as "one of the first and noblest of human sciences-a science," if I may slightly change the expression of Burke, "which does more to quicken and invigorate the understanding" than any other. I believe that the study of law is admirably fitted to equip a man intellectually even for the ministry of the Gospel, a profession in popular conception as far as possible removed from the law; and that no training will better fit a speaker for his work than the careful study of the methods by which the successful advocate carries conviction to the minds of a court and jury. Moreover, no study is more valuable than the law to the man who is to engage in business under the complicated system of modern life; while to the future legislator and statesman it is absolutely indispensable. I wish, therefore, that it were common for young men to pursue the systematic study of law, even though they do not intend to practice law as a profession. With high hopes for the educational development of the young state in which I live, I have been greatly cheered by the presence in our Law School, of many young men who do not intend to follow the law as a profession, but are seeking in its study that culture and knowledge which will be of service to them in almost any possible pursuit in which they may engage. It is not, however, the study of law, to which I invite your attention to-day.

I propose to speak of the legal profession as a conservative force in our republic. I shall try to show that it is such a force, shall point out some ways in which it may be more useful than at present, and finally shall call attention to some facts which

emphasize the special need of such a force at the present time.

Our system of government is unquestionably excellent. Under it we have liberty without license and order without oppression. It may not be perfect; but, perfect or imperfect, it is so good that we wish to preserve it. The division of power between the nation and the states, and between the states and the smaller political units that compose the states; the division of the government into executive, legislative, and judicial branches; the freedom and equality of the people practically guarantied by the Constitution; these are all so excellent that we would not willingly change them. The experience of more than a century has proved the wisdom of the fathers who established this government. The accumulated blessings of a century of free government are ours. Whatever advances we may now make must be made in a conservative spirit that shall preserve what has already been secured. A true conservative spirit is not opposed to reform when needed; but it recognizes the fact that mere change is not reform-only change for the better is reform-and that this should be sought within existing institutions and not by destroying them. It proves all things; but it holds. fast that which is good.

No profession in our country is, or by reason of its nature ought to be, more conservative than the law. Every lawyer is a sworn minister of justice; and "justice," as Webster said, "is the great interest of man on earth. It is the ligament which holds civilized beings and beings and civilized nations together. Wherever her temple stands and as long as it is honored, there is a foundation for social security, gen

eral happiness, and the improvement and progress of our race." The legal profession is devoted to the administration of justice under existing laws. It does not ask what the law ought to be. It merely asks what the law is and what is right under the law as it is. Rarely does it happen to a lawyer, as it did to Erskine in his arguments on the Rights of British Juries and in defence of Stockdale, to anticipate legislation by presenting to the court a justice higher than the law; and few lawyers, if they attempted to do so, would expect or deserve the success which attended Erskine's bold experiment. Courts can decide what is law, but they can not make laws. Where, therefore, the laws are good, the conservatism of the bar as represented in the courts, is invaluable. No real interest can be assailed that the law will not protect if it be appealed to. No new law can be made which violates the fundamental principles of government, that the courts will not at once pronounce unconstitutional. Passion may clamor, as it often does, for ex post facto laws, for laws which involve a violation of the obligation of contracts, or for laws which impair freedom of thought or speech or religion; but the courts throw all such laws out as fast as an abnormal legislature can pass them. And the higher we ascend in our appeal to the courts, the more stable, independent, and conservative do the courts become, so that the man who really wants nothing but what is just, finds the courts a refuge from even unfriendly legislation.

The student of law learns at the very beginning of his studies that law is the highest wisdom of organized society, expressed as a rule of conduct, commanding what is right and prohibiting what is

wrong. It is grounded on certain first principles existing in the nature and fitness of things. These principles have been derived from reason and experience, from the customs of our ancestors, from the civil law, and from the golden rule of Christian morality. "On this basis, our courts have erected the noble fabric of jurisprudence; they have adjusted the various parts with the nicest symmetry; and a deviation from any fundamental principle deranges the whole superstructure." Under a system thus perfected, laws may change but law does not change. Uniformity of practice, the faithful following of precedent, a regard for the "whole system," these, no matter how much individual laws may change, insure that "permanent, uniform rule in the administration of justice which is the ultimate object of government." The symmetry, perfection, and existence of the whole legal structure depend upon the conservation of existing institutions. The ideal court has but one standard for every case it tries that is justice as expressed in the law. It is bound to a uniformity of interpretation and is controlled in its principles of interpretation by its obligation to unnumbered precedents from the beginning of our national life and even from the establishment of justice. It deals, therefore, with its suitors as if they were unknown-mere abstract representations of principles. Its decisions come like the answer to an algebraic problem without partiality, even as the unknown quantities in the problem are subjected to the operation of undeviating mathematical principles in order to determine their value. If there is any departure from this absolute impartiality and impersonality in the administration of justice, it is no