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It cannot be doubted that the great body of the profession will always be found aligned upon the side of morality, order, justice and right, and that their influence will be actively exerted in moulding public opinion in behalf of these interests. Can there be nobler and finer service to the public ?
“In this and like communities public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who moulds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible to be executed."
THE UNCERTAINTY OF THE LAW.
THE GEORGIA BAR ASSOCIATION,
AUGUST 3RD, 1887.
By HON. THOS. M. COOLEY, LL. D.
All nations have their proverbs concerning the uncertainty of the law; proverbs that are supposed to be pithy expressions of what is common thought among the people.
Dramatists and other authors weave these into their productions, and they pass in new forms from age to age. One of them reminds us. of what is quite too true, that law
- is past depth To those that without heed do plunge into it;" and another, with equal truth, that suitors are
-catched, unknotted, law-like nets
In which, when once they are embrangled,
The more they stir the more they ’re tangled.” Most often they relate to the administration of the law, as when “Crowner's quest law” is ridiculed, and when it is said that even Omniscience cannot foretell the verdict of a petty jury; or, as it is set to rhyme in Hudibras,
“Do not your juries give their verdict
As if they felt the cause, not heard it,
Run all on one side, as they 're packed'?” Sometimes the uncertainty becomes a jocose certainty, as where justice is depicted as swallowing the oyster and giving a shell to each
of the litigants; or a certainty of a more serious character, as when the law is said to
-bind the poor man in his fetters
And let the rich go revel in his crimes,” and to be always found
“Still for the strong too weak, the weak too strong."
If Justice Story had not spoken in extravagant terms concerning the difficulty of mastering the law, its uncertainty may well be excused, for he has said of it that “The law is a science of such vast extent and intricacy, of such severe logic and nice dependencies, that it has always tasked the highest minds to reach even its ordinary boundaries."
But this I must be permitted to call a rhetorical exaggeration rather than a plain statement of facts, for if it were otherwise, the citizens of a free country in which the administration of justice is very largely in the hands of laymen, might very properly speak with derision of "Old Father Antic"—the law-and think the judicial settlement of mutual accounts by weighing one account book against the other, to be quite worthy of being made part of a system which, though established for the government of the every-day conduct and business of the people, is nevertheless impossible of comprehension by the most of them, and only imperfectly known to the few.
It is probably not often that any person deliberately asks himself the question whether there is any substantial foundation for the reproaches thus heaped upon the law. The general public takes it for granted that they are at least to some extent deserved, and even lawyers and judges do not hesitate to give color to the imputation by making the uncertainty of the law a theme for jokes and raillery.
I shall affirm and endeavor to show by this paper that there is no substantial foundation whatever for these reproaches, these gibes and jeers. It is not true in any sense that the law is uncertain ; it is in fact so far from being true that, on the contrary, the law will be found on investigation to have more of the elements of certainty about it, and to be more worthy of trust than anything else, even in physical nature, or in the realm of mind or of morals, that concerns to the same extent the every-day life of mankind.
I shall not delay at this time to make comparison of the law as to certainty with the expected events in the material world, which, though they are counted on to take place in regular order, are nevertheless presenting to our eyes an endless succession of unlooked for phases, so that it may justly be said, it is the unexpected that happens. Summer and winter come and go, but each differs from the corresponding seasons which preceded it in important particulars which give it a character of its own. Science endeavors to foretell storms and calms, heat and cold, but we seldom fail of reminder that the wind bloweth where it listeth, and man cannot tell whence it cometh or whither it goeth; the expected breeze becomes a tornado or a cyclone, and the earthquake, without being expected at all, may suddenly, with no premonition, shake a continent and devastate innumerable hon.es. As a prophet of natural phenomera, science has mastery in a narrow field; a few things it may determine with absolute certainty; such, on the one hand, as the motions of the planets, and on the other the constituents of certain substances, the predisposing causes to certain diseases, etc. ; but when scientific knowledge is to be put to practical use, we soon find ourselves, even as to such matters, launched upon a sea of speculation where theory antagonizes theory, and where the most ignorant, if his assurance is ample, is as likely to secure an abundant following as the most learned and competent. Nor is the following necessarily confined to the ignorant; the most absurd and preposterous assertions in psychology have seemed to find converts as readily among grave senators and in the learned professions as anywhere. We may all smile at the colored preacher who demonstrates from the Bible that it is the sun, not the earth, that moves; but in any accidental gathering of intelligent people, there will be found a large percentage who would not dare enter upon any new undertaking on Friday, or sit down at table with thirteen for company, or, if they were agriculturists, to plant their foot crops except in a particular quarter of the moon; and each one would defend his position upon the results of observation and experience. The general fact is that we discover by observation what we were predisposed to look for; and in the world of matter, new investigations are perpetually confounding those which preceded them. lawyer still quotes Littleton's Tenures and Coke's Institutes as authority, but there is not a contemporaneous book on the natural history of plants or of animals, or on physics, that has so well stood the test of time, or that is now regarded with the same respect, or is appealed to as a guide with like confidence. And what is here said is as true in the world of mind as in that of matter. In theology, where, if any. where, it would seem there ought to be indisputable truths, we find that the certainties of one sect are likely to be manifest absurdities to all others, and the sect which anchors itself 10 an unchangeable creed in one century, drags the anchor so far away in the next that scarcely are even the headlands of its old moorings discernible in the dim distance.
But enumeration here might be endless, and in fact is of but little moment. We perceive that uncertainty is all about us; as to life and health ; as to social and family relations; as to business arrangements and anticipations. The seed time and harvest we are told shall never fail; and they come indeed with more or less of regularity, but they often come with unexpected and disappointing accompaniments, so that the promise, though fulfilled to the letter, falls far short of making good: the anticipation. In short, in whatever direction we turn, we readily perceive that the law, as regards certainty, is not likely to suffer by being brought into comparison with the phenomena, either material or mental, which are all about us and which, to a large extent, control our every day life.
What is law ? If we call for definition it will be readily given, and we shall be told that, taken collectively, it embraces the rules of action formulated by some sovereign expression of State will, whereby the rights of citizens are established, and their privileges and duties defined and prescribed. This is a narrow and technical definition, but it will answer our immediate purpose.
The Commonwealth of Georgia became a State of the American Union as one of the original thirteen. Its people formed for them. selyes a constitution while the war of independence was in progress, and in the subsequent adoption of the Federal Constitution they were left to the control of their own laws in nearly all that concerned the property rights of citizens, their domestic relations, their duties to the State and their relative duties to each other. They accepted the common law with modifications suited to their circumstances; and from that time to the present, law, Federal and State, with multiform commands and inhibitions, has been at all times over, about and upon the people, and no citizen of Georgia has for a moment been at liberty to act in disregard of its restraints, or otherwise than as the law permitted.
We all recognize the fact that human society can have only a precarious existence without law; if it could begin without law, it must of necessity at once become a prey to disorder and violence, until the rule of the strongest should be established. If instead of no law at all, there was law which was uncertain in its commands and restraints, this might in a degree be better than no law; but the uncertainty must