I am very deeply gratified by the greeting that your president has given
me and by your response to it. My only strength lies in your confidence.
We stand now in a peculiar case. Our first thought, I suppose, as
lawyers, is of international law, of those bonds of right and principle
which draw the nations together and hold the community of the world to
some standards of action. We know that we see in international law, as
it were, the moral processes by which law itself came into existence. I
know that as a lawyer I have myself at times felt that there was no real
comparison between the law of a nation and the law of nations, because
the latter lacked the sanction that gave the former strength and
validity. And yet, if you look into the matter more closely, you will
find that the two have the same foundations, and that those foundations
are more evident and conspicuous in our day than they have ever been
before.
The opinion of the world is the mistress of the world; and the processes
of international law are the slow processes by which opinion works its
will. What impresses me is the constant thought that that is the
tribunal at the bar of which we all sit. I would call your attention,
incidentally, to the circumstance that it does not observe the ordinary
rules of evidence; which has sometimes suggested to me that the ordinary
rules of evidence had shown some signs of growing antique. Everything,
rumor included, is heard in this court, and the standard of judgment is
not so much the character of the testimony as the character of the
witness. The motives are disclosed, the purposes are conjectured, and
that opinion is finally accepted which seems to be, not the best founded
in law, perhaps, but the best founded in integrity of character and of
morals. That is the process which is slowly working its will upon the
world; and what we should be watchful of is not so much jealous
interests as sound principles of action. The disinterested course is
always the biggest course to pursue not only, but it is in the long run
the most profitable course to pursue. If you can establish your
character, you can establish your credit.
What I wanted to suggest to this association, in bidding them very
hearty welcome to the city, is whether we sufficiently apply these same
ideas to the body of municipal law which we seek to administer.
Citations seem to play so much larger a role now than principle. There
was a time when the thoughtful eye of the judge rested upon the changes
of social circumstances and almost palpably saw the law arise out of
human life. Have we got to a time when the only way to change law is by
statute? The changing of law by statute seems to me like mending a
garment with a patch, whereas law should grow by the life that is in it,
not by the life that is outside of it.
I once said to a lawyer with whom I was discussing some question of
precedent, and in whose presence I was venturing to doubt the rational
validity, at any rate, of the particular precedents he cited, "After
all, isn't our object justice?" And he said, "God forbid! We should be
very much confused if we made that our standard. Our standard is to find
out what the rule has been and how the rule that has been applies to the
case that is." I should hate to think that the law was based entirely
upon "has beens." I should hate to think that the law did not derive its
impulse from looking forward rather than from looking backward, or,
rather, that it did not derive its instruction from looking about and
seeing what the circumstances of man actually are and what the impulses
of justice necessarily are.
Understand me, gentlemen, I am not venturing in this presence to impeach
the law. For the present, by the force of circumstances, I am in part
the embodiment of the law, and it would be very awkward to disavow
myself. But I do wish to make this intimation, that in this time of
world change, in this time when we are going to find out just how, in
what particulars, and to what extent the real facts of human life and
the real moral judgments of mankind prevail, it is worth while looking
inside our municipal law and seeing whether the judgments of the law are
made square with the moral judgments of mankind. For I believe that we
are custodians, not of commands, but of a spirit. We are custodians of
the spirit of righteousness, of the spirit of equal-handed justice, of
the spirit of hope which believes in the perfectibility of the law with
the perfectibility of human life itself.
Public life, like private life, would be very dull and dry if it were
not for this belief in the essential beauty of the human spirit and the
belief that the human spirit could be translated into action and into
ordinance. Not entire. You cannot go any faster than you can advance the
average moral judgments of the mass, but you can go at least as fast as
that, and you can see to it that you do not lag behind the average moral
judgments of the mass. I have in my life dealt with all sorts and
conditions of men, and I have found that the flame of moral judgment
burned just as bright in the man of humble life and limited experience
as in the scholar and the man of affairs. And I would like his voice
always to be heard, not as a witness, not as speaking in his own case,
but as if he were the voice of men in general, in our courts of justice,
as well as the voice of the lawyers, remembering what the law has been.
My hope is that, being stirred to the depths by the extraordinary
circumstances of the time in which we live, we may recover from those
depths something of a renewal of that vision of the law with which men
may be supposed to have started out in the old days of the oracles, who
communed with the intimations of divinity.