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all this means and what we are to do about it. Prediction is no less dangerous than definition, and it may be too soon to speak with assurance with respect to a process of development upon which we have no more than entered. Yet the history of law is full of suggestion as to the significance and the outcome of the present movement. For it shows that progress in law has taken the form of continual recognition of a wider circle of interests and continual securing of more interests. Primitive law considered but one interest, the social interest in peace and order. The strict law widened the circle of secured interests from the narrow field of peace and public order to a broader field of general security, developed chiefly in the form of individual security against aggression and general security against arbitrary magisterial action. The stage of equity or natural law widens the circle of recognized interests still further by adding the social interest in the general morals and indirectly, through enforcing duties of good faith simply as moral duties, the social interest in the security of transactions. The maturity of law, while recognizing the social interest in the general morals, endeavors to hold fast to the social interest in the general security, and it widens the field of the latter by developing security of acquisitions and security of transactions as the basis of modern economic society. But this process of continual widening of the field of recognized interests has always put strain upon legal institutions during the periods of transition. And this has been true especially in periods of growth following periods of fixation and stability. Hence we may be well assured, when we see a reversion for a time to lawless justice, that a new stage of legal development is once more widening the field of interests recognized and secured by law. Indeed it seems reasonably clear that the significant interest for the present and for the immediate future is to be the social interest in the individual life—the claim of every individual to a full moral and social life, to a human life, and the interest of society in recognizing and securing it. What jurist and judge and legislator must do for a season is to re-examine the rules and principles and doctrines, which were defined so sharply and worked out so thoroughly in all their logical implications in the last century and to reshape them to accord with the exigencies of this newly recognized social interest in the individual life.

This task of valuing new interests, balancing them against old ones and re-shaping legal doctrines accordingly is primarily a scientific work, calling for more science and more research than has ever been demanded in the past. For every increase in the area of the field of interests secured by law makes the problem of balancing and harmonizing more complex. But the remedy, if the existing law fails to secure new interests which clamor for recognition, is not to throw over law and set up a new dynasty of personal sovereigns. It is rather for lawyers to face the problems presented by the rise of new interests resolutely and intelligently. In a similar transition stage in Anglo-American law, when James I sought to decide causes in person and asked whether he had not reason as well as his judges, Coke answered:

judem and eft it

“That true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England and causes which concern the life, or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognizance of it.”.

And so it is with administration of justice today. No one can do the delicate work of valuing and balancing a multitude of conflicting interests offhand. The magic words "be it enacted” cannot supply the want of scientific preparation for a critical, scientific task. Our only permanent reliance can be in thorough-going study of the interests to be secured and of the possible modes of making them effective through law, and a steadfast belief that justice is still the greatest interest of man on earth. Whether we will or not, we must have recourse to lawyers and a legal fixation and systematization must follow our crude experiments with lawless justice as they followed the extravagancies of the stage of equity or natural law. Hence, if law and lawyers for a time are under a cloud, it is but a passing cloud. Our ambitious schemes of social reform call, not for less law, but for more law. The call of the time is not for less training and less specialization on the part of those who have to do with the administration of justice, but for more.

One of the living masters of the common law has told us of the realm of the jurist's fancy where “Moses and Manu sit enthroned side by side, guiding the dawning sense of judgment and righteousness in the two master races of the earth * * * * and the bigotry of a Justinian and the crimes of a Bonaparte are forgotten because at their bidding the rough places of the ways of justice were made smooth.” Our fathers were concerned that their way of justice should somehow reach its goal rather than that it should be smooth. They thought of the litigant as a pedestrian, as a licensee upon the way rather than an invitee, as one taking the risk of visible dangers and possessed of ample leisure to deliberate upon the accidents of the road; and they held it enough that, if he survived those accidents, he might some day attain justice, even if at great expense and after many shrewd knocks. Today an impatient generation seeks justice with automobiles and motorcycles and clamors for a paved and level road—a road that leads speedily and smoothly somewhere; if it be to justice, so much the better. And so the technicalities of the nineteenth-century lawyer and the anti-social obstructions of the nineteenth-century judge, who was content to follow patiently a circuitous and uneven road, so it led ultimately to justice—these things too, it may be, shall be forgotten as the twentieth-century lawyer learns to lay out for us a straight and level, and smooth and secure highway, which also shall lead to justice.




The title assigned to my paper by the Executive Committee is much broader in range than the paper itself will be. If I were to tell all I know about the practice and the practices in the Appellate Courts it would fill a book. If I were to tell all I do not know about these things it would fill an encyclopaedic set. . Besides, I am not in the mental attitude of the negro preacher who announced that he was about to deliver a sermon in which he proposed “to explain the unexplainable, to discover the undiscoverable, and unscrew the inscrutable.”

The committee has asked me to discuss certain specific proposed modifications in appellate practice, and for the most part, I will endeavor to confine myself to that.

The general bent of one's mind is a material fact to be considered in construing what one says. So let me at the outset label myself.

I stand for form as contrasted with reform. I believe in evolution and not in revolution. I am a conservative in precept, even though I may have some of the personal habits of the Bolsheviki. So I hope that what I have to say will not be rejected as the cant of a reformer.

Another thing: I am not here to "cuss the court.” Not that I have not had equal cause to do so with any other member of the bar who may be inclined to speak up; but as to that, I have already done my cussing, in accordance with the rules of the game and the ethics of the bar. The outrages which the courts have perpetrated against me and mine are barred by statute of limitations—are forgiven

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