Page:The Green Bag (1889–1914), Volume 17.pdf/542

 THE AMERICAN LAWYER corporated in the opinion of Mr. Justice Bigelow in the Brattle Square case, an opinion involving the rule against perpetui ties as applicable to an executory devise, and of which an associate of Chief Justice Shaw said even Shaw could not have writ ten it. Of this opinion it has been said that in it "the law assumes the beauty and pre cision of the exact sciences." As long as there is a belief in immortality, as long as there is physical infirmity, as long as justice dwells on earth, so long will flourish the three learned professions, for so long must soul, body, and estate be min istered unto; and not the least is our pro fession dedicated to law and consecrated to justice. Law is permanent but ever changing. As a city grows, its streets and byways multiply, but its original highways remain, and the law of the road is applicable to the old and the new ways, subject to the modifi cation which increasing use and utilities make inevitable. The reasonableness of the law is applied common sense, and common sense has been admirably denned as "an instinctive knowledge of the true relation of things." In a eulogy of Chief Justice Shaw, Ben jamin F. Thomas, an able lawyer and his associate upon the Bench, cited the case of Commonwealth v. Temple (14 Gray, 69), as one of the great opinions of the chief justice whose primacy in the judiciary of Massa chusetts was never disputed. The opinion is brief. It is of interest to the lawyer as illustrative of the application of common sense to legal principles. It was in the infancy of horse railroads. A corporation was chartered to construct a railroad. A section of the statute provided for the punishment of any person wilfully and maliciously obstructing the passing of cars on its tracks. The defendant, with a heavily-loaded team, was driving on the public street in front of a horse-car. Re quested to turn aside, he did not, but con tinued thereon for some rods before turning

off. For this seemingly trivial act, the de fendant was indicted and convicted, in spite of his contention that the exercise of his right to use the way as before was not malice, and that the right of the corpora tion was subordinate to the existing rights of travelers. The opinion admirably states the great merit of the common law in "that it is founded upon a comparatively few broad general principles of justice, fitness, and ex pediency, the correctness of which is gen erally acknowledged and which at first are few and simple, but which carried out in their practical details and adapted to ex tremely complicated facts, give rise to many and often perplexing questions; yet these original principles remain fixed and are gen erally comprehensive enough to adapt them selves to new institutions and conditions of society, new modes of commerce, new usages and practices, as the progress of society in the advancement of civilization may re quire." The right of each traveler on the highway must be exercised with a due regard to the rights of others. The teamster was bound to turn out because the car could not. Thus our customary law grows with the growth of society. Judge-made law keeps step with invention. The Reports are, in truth, the chronicles of the time. The busi ness, the crime, the habits of life of each generation are recorded in their pages. In them we trace our growth. They are full of human nature, not always at its best, but often in its abnormal development. The physician treats the maimed and diseased; the clergyman's work is among sinners, and the lawyer deals greatly with that which is new or abnormal in business or conduct. Lord Mansfield tells us that "the law does not consist of particular cases, but of gen eral principles which are illustrated and explained by those cases." But its prac tice does consist of particular cases. Special cases increase with the general complexities attendant upon the growth and develop ment of society.