Page:The Green Bag (1889–1914), Volume 17.pdf/22

 A SCIENTIFIC SCHOOL OF LEGAL THOUGHT which it is in terms provided that where the statute fails the law merchant shall gov ern. Losing sight of this fact, or not giving sufficient importance to it, the codifiers could incorporate such a piece of a priori law into this important statute as a whole article on acceptance of bills for honor. It will perhaps be said that though our merchants and bankers have never adopted the English custom of acceptance of that sort, they may do so, and it is desirable that they should. That is the most that could pos sibly be said; and that on its face is un sound — it is the ground always taken for a priori law. It is not for one set of men to say what another set should do. If on the other hand it be said that no one is obliged to adopt -the practice, then the answer is that the statute is an idle word. The law relating to negotiable instruments, of all laws, should follow business, and not seek to direct it. The objection here raised is not to codi fication itself; founded on sound theory, to wit, that it must keep close to life, and not expect to last forever except in so far as it may in the nature of things be permanent, codification of some subjects may be useful enough to justify it. The result of this prolonged examination of grounds for complaint is that we have much seeming and not a little real departure from sound theory; but even the latter seldom if ever of purpose. Generally it has arisen, as in the case of the loss of the injunc tion in matters of crime, because for a long period an arm of the law has found no occa sion for use. It can safely be affirmed that the law has never for any considerable period, if at all, professed to deny that it should be obedient to the idea that men should be free to do whatever is reason able. As a matter of fact, however, every ancient — or modern — rule of law which has been kept alive after the conditions under which it was laid down have essentially disappeared, has become from the time of the change an a priori rule, and so out of

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touch with sound theory. The rule may still be workable; we have many such a case, but we should at best tolerate rules of the kind only till the proper time comes to bury them decently, or turn them over to the historian. Of this, however, later on. How to get rid of such rules, if at all, may not be easily seen. In the case of some of them there is but a survival of what is now nothing more than legal cant, and the judges have but to give up the cant. Why should any judge longer say that pos session is necessary to a suit for trespass or conversion, and then take the truth out of his own mouth by saying that wherever it is necessary, a possession in law, which is no possession at all, will be considered to exist? The way is now quite clear for any judge with but a small amount of courage to say that if the plaintiff shows a right and an infringement thereof he shall recover. This would despatch business, by cutting off debate and delay over irrelevant ques tions, and what is much more, it would tend to cause the people to return to that respect for the law which they have long and not unnaturally been losing. They would then understand the law. Is it not time to show the people, upon, suitable occasions, that their own laws are not secrets beyond the power of all but experts to understand? Of course there will be much which only experts can fully comprehend, just as — for the very same reason that — there is much in the daily pursuits of men which only men trained to the particular business can comprehend; but that the people should not be able to understand a rule of law because of some ancient and now useless formula, — jargon to the uninitiated, — should be as much a reproach to those who keep up the farce as it is a danger to the State. I have thus far been talking with or to laymen, the people; not, and I wish to say this in the plainest words, — not by the way, assuredly not because it would sound commonplace to lawyers; I have been talk ing with and to laymen because of what