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XIV

ADDRESS BEFORE THE COMMERCIAL LAW LEAGUE OF AMERICA*

IT

T IS a pleasure to meet members of an organization composed not only of lawyers but also of laymen. I assume that you are dealing largely with the administration of the law in one of its most important aspects, that is, in the collection of commercial accounts. Most of us lawyers know something about that kind of business, but some of us are not engaged in what I might term "quantity production," but deal with fewer and larger packages. One branch of such activities is as honorable as the other, when honorably pursued, and provided we avoid a conception expressed by a student who defined the law as being the "means by which we obtain the lawful possession of the property belonging to another." But I do not intend to enter upon the field of legal ethics. I learned to practice law forty years ago according to natural instinct, when we had no formal code of ethics. Then came ethical formulations of local bar associations, the commandments of the American Bar Association and some of us became timorous and introspective. Let us hope that our professional life is not to lose its spontaniety and become an ethical crossword puzzle.

Close contact between lawyers and laymen having a

* Delivered at a dinner on December 9, 1924. Reprinted from Commercial Law League Journal for January 1925.

common aim enables them to be very useful in bringing the law and its administration into a useful relation to the needs of our social and business life. In the formulation by publicists of a system of jurisprudence there is generally a tendency to base it on some abstract concept. This happens where despotisms promulgate inexorable decrees. The merit of our system of common law is that it may from time to time be molded so as to be a useful instrument in procuring justice under concrete conditions and customs of national life. Every lawyer knows that in his everyday practice a knowledge of the facts is more important than finespun legal analysis; and we must generally learn those facts from the laymen. And so in dealing with the matters with which the commercial lawyer is occupied, you have a real advantage in having members who are laymen and who bring you close to earth.

Please do not understand me as decrying associations composed of lawyers alone. They have been of infinite use in this country in elevating the standards of the profession, in improving legal education, in advancing the science of the law and its administration and in creating understanding and good fellowship among members of the bar. They are constantly seeking to make improvements and this must always continue if the common law is to perform its traditional function of making it a practical rule of action for the administration of justice. Agitation for changes merely indicates an effort to preserve the spirit of the common law by expanding it and adjusting it to changing conditions. In this there is always a struggle between ultra-conservative and extreme progressive tendencies. Adherence through habit to antiquated practice, on the one hand, and on the

other a demand that such practice shall be abandoned, is inevitable. The time will never come when the common law and its administration will be entirely satisfactory to everybody; and it ought never to be static. The complicated affairs of man, particularly in an era of economic and industrial development, will always outrun the ability of law-makers and the people to adjust old principles to new conditions.

The enormous development of our business life has involved the extension of credits to remote and sometimes inaccessible places, and business-men encounter difficulties in having accounts collected. Any lawyer of experience knows how hard it is sometimes to find out in a hurry the name of a competent and honest lawyer in a distant place. The only one available may represent adverse interests and through that circumstance or some other, the ends of justice may be defeated. This League goes far toward avoiding such a situation. Your President last year happily expressed it that your 8500 members in the most remote places in the United States, Canada and Mexico, are engaged in

"correlating the work of the commercial lawyer, solving his problems, supplying the mechanism for communication between attorneys in one part of the country and those in other parts of the country;"

all for the purpose of making easier "the more complicated relations that arise through the transfer and transmission of business from one part of the United States to another." He also said that your purpose was to bring into "closer unison and better understanding in the trade organizations, the commercial bar and the bench interested in the administration of the commercial

law." Such purposes as these are not only lofty in aspiration but useful in practice, and the Commercial Law League is the one professional body that I know of that addresses itself with systematic thoroughness to this most useful work.

But your usefulness brings a corresponding responsibility. With your leaven of lay membership you probably are peculiarly sensitive to the continuance of some of the archaic absurdities of our law. I cannot go into details; and if I mention some for illustration, I would not be understood as excluding others. And first I mention our antiquated rules of evidence. We tolerate tiresome squabbles at trials and on appeal concerning exceptions to rulings on evidence which generally do not affect the result. In London last summer 3000 American lawyers had the opportunity to witness the English courts at the height of their trial activities. One of the things that was most striking was the slight attention devoted to discussion upon questions of evidence. The rules were liberally applied, were well understood by the barristers and by the court, and little time was wasted in futile efforts to exclude proper evidence or to introduce that which was inadmissible. Objections and exceptions were few and reversals for error rare. fact is that the tendency in England to let witnesses tell their stories in their own way is very marked, and we in this country could profitably abandon many of the technical rules of evidence which are daily applied in our courts, even to the extent of permitting in proper cases, a little hearsay. I think you will find most judges of experience would go far towards liberalizing the rules of evidence. Then in England pleadings have been greatly simplified. A very large proportion, perhaps

The

more than half, of the reported cases in England arise upon what are called declaratory judgments, by which questions of law, such, for instance, as the interpretation of a provision of a contract, may be determined by by the court before there is a breach and before damages have been suffered. Jury trials are much more expedi

tious than with us.

The judge directs the deliberations

of the jury, aiding it in the unaccustomed process of dealing with complicated states of fact. In criminal cases the presumption of innocence is not given an undue significance and the administration of the criminal law is more expeditious and more efficient.

Now these are a few of the particulars in which we might profit by observing how at the home of the common law its administration has been developed. It has been only by progressive struggle and development for a thousand years that these results have been brought about; and such struggles are inevitable if the common law is to retain the confidence of the people as an instrumentality of producing prompt and even-handed justice. There is something of a tendency, particularly among ultra-conservative lawyers in this country to regard antiquated rules of the common law and outworn forms of procedure as a fetish, to hold them sacrosanct and to exaggerate their importance. Disinterested and highminded lawyers and judges and the American Bar Association, with state and local associations, may devise and propose law reform, but unless there is aroused a public opinion affecting votes, the ordinary legislator is hard to move to enact reforms. The remedy does not lie with the lawyers alone, but with the people at large. The law is their possession and if they would have it preserved and improved, they must stimulate those in

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