ANNUAL ADDRESS

BY

JAMES C. CARTER.

OF NEW YORK.

PROVINCES OF THE WRITTEN AND THE UNWRITTEN LAW.

Mr. President and Gentlemen of the Virginia State Bar Association :

When I was invited to address this Association, which so well represents the Bar of this ancient Commonwealth, upon the occasion of its annual meeting, I was somewhat perplexed to determine what particular topic, if any, should form the theme of my discourse. I might have sought to amuse, without taxing your attention, by some slender chain of discursive allusion to the trials, the labors, the satisfactions, the disappointments and the humors which diversify our professional lives; or I might have attempted a discussion of some question of greater moment upon which all lawyers ought to hold opinions.

It finally seemed to me that in speaking, as I was to speak, to a Bar always and still distinguished for learning, skill and eloquence, pre-eminently illustrious for its contributions in the past to statesmanship and legislation, I should most fitly evince my appreciation of the high honor which has been paid to me by accepting the latter suggestion.

At every step in our professional lives, and from the beginning of our preparatory studies, we find ourselves under the necessity, in seeking to ascertain the law, of prosecuting our inquiries in two quite different directions. On the one hand we are told that the legislative body of the State is the only agency which is clothed with the authority

of making laws; and the natural inference from this is that if, upon a question arising in any particular case the statute book is silent, there is no law by which it can rightfully be decided. But we find, upon the other hand, that in far the greater number of cases the statute book is silent, and yet the judicial tribunals are in some manner able to find laws, or rules, by which all controversies may be determined.

To some minds this apparent incongruity has seemed a great imperfection in jurisprudence, and, looking chiefly to the supposed necessity, or desirability, that the people at large should know, and know beforehand, the laws by which their actions are to be governed, and have a participation in making them, they have insisted that this imperfection should be forthwith remedied, and that all our laws should be reduced by the Legislature to the form of statutes.

Others, on the contrary, looking to what they conceive to be the difficulty, if not the impossibility, of this task, and the obvious unfitness of our ordinary legislators to frame a complete system of jurisprudence, would confine the action of the Legislature to the cases in which it seems necessary that the law should be expressed in writing, and in which no difficulties are presented with which men of ordinary intelligence and learning cannot cope.

The especial champions of written law are indeed obliged to admit that all law cannot be reduced to writing; for, after it is written, it must still be interpreted in order to be applied, and such interpretation necessarily involves a resort to unwritten rules. We may indeed enact rules of interpretation; but these must themselves be interpreted; and thus those most opposed to unwritten law find themselves unable to wholly dispense with its aid. And so also those who would restrict the area over which statutory law should be extended fully admit that a large part of human affairs can and should be submitted to the dominion of written rules.

I cannot help thinking that much of the contention upon this subject has been misdirected; and that inasmuch as both parties admit that our law must continue to be in part written, and in part unwritten, the principal effort should be aimed to elucidate the precise advantages and disadvantages which respectively belong to these different modes of making, or declaring, law. It may be that such an inquiry may result in a conclusion that there are certain parts of the legal system of a State which can be best dealt with by written laws; and that others are of a nature which can be successfully treated only by allowing the courts to deal with them unfettered by statutory enactments. It is my

purpose to offer some suggestions in this direction; and, if my theme is worthy of a name, it may be styled "The Provinces of the Written and the Unwritten Law."

There are some obscurities which should first be cleared away in order that the real nature of the problem may be well understood. What is this thing which we call "the law," and about which we debate whether it should be written or left unwritten? Is it something which exists only when men create it, and as men create it, or has it existed from all eternity, and from time to time revealed itself to satisfy the aspirations, or the needs of the human race? Or is it in part the one, and in part the other?

Undoubtedly, in a very large sense the term law embraces every rule which society enforces upon its members, and properly includes all those statutes, more or less arbitrary in their nature, which men are constantly engaged in making, and as constantly in changing, for the good order, peace and comfort of the State. These are political regulations, and constitute but a small part of what is really comprehended under the word law. Nor do they make up that department or realm of law which principally engages the attention of lawyers, and is held in a sort of veneration by men. What we have chiefly in mind when we speak of the law is that body of rules for the regulation of the conduct of men in their ordinary transactions with each other, which is enforced by the State. These rules make up by far the larger part of our jurisprudence; and it is in relation to these that I start with the inquiry, what is this thing which we call "the law?" Upon subjecting these rules to scrutiny, we at once perceive they are affected with a moral character,— that they are, or ought to be, just. The judge, in the performance of his function of declaring the law, seeks for that rule which is dictated by what is called justice. The office of the legislator in making the law is not essentially different. He is at liberty, morally speaking, to make that rule only which is in conformity with justice. And what is this justice which sits enthroned behind all human enactments and judicial decrees? The answers are as various as the theories of morals. Some tell us that it is what is agreeable to reason; others, that it is what tends to secure the greatest happiness to the greatest number; others, that it is what a Moral Sense originally implanted in us prescribes. It is here that the ultimate identity of Law and Ethics asserts itself, and it is as difficult to perceive and state the original foundation of the one as of the other. We may push back our inquiries as far as our feeble powers

sustain us; but we are soon lost among the kindred Infinities of the True, the Beautiful, and the Good. The masters of human thought, after ages of endeavor, are able to carry us but a single step in advance; but the steps are nevertheless gradually taken, and we thus approach, by slow and almost imperceptible stages, towards that knowledge of abstract and absolute justice which human reason will never reach, but after which it forever aspires. We may in despair abandon the search into this hidden reality; but let us never forget that it is a reality, or become insensible to its transcendant importance. Some ability to understand and apply it is given to all; and we share the possession in proportion to the earnestness and fidelity with which we cultivate the higher faculties of our nature, and seek to hold converse with the spirit of justice. Poor, indeed, will be the law-giver or the judge who does not at every step draw inspiration from this fountain, and acknowledge that he is not a maker, but a seeker, among divine sources, for pre-existing truth. The Bible legend, that the laws which the children of Israel were to obey were proclaimed amid the thunders of Sinai before they were written on tables of stone, was not a device to secure obedience, but an expression of truth, which has been re-echoed by the law-givers and jurists of every age. Demosthenes, filled with this lofty conception, gives fine expression to it in one of his orations. "The object and end of laws," says he, "is to ascertain what is just, honorable, and expedient; and when this is discovered, it is declared as a general ordinance, equal and impartial to all. This is the origin of law. It is the invention and gift of the gods, the resolution of wise men, the general conviction of the State; and hence it behooves every individual in society to live in conformity with it."*

The brilliant fancy of Cicero, whenever touched by this theme, rises into sublimity. With him law is the voice of reason and conscience everywhere summoning men to the performance of what is right, and commanding them to abstain from fraud and wrong—"not one thing at Rome and another at Athens, one thing now and another hereafter," but the same in all places and at all times; not something which springs into existence for the first time when it is written, but which existed before it was written, its origin being coeval with the Divine Intelligence. "Therefore," says he, "the true and fundamental law-whose

*Orat. I, Contra Aristogit.

voice is to command and to forbid-is the right reason of Supreme Jove."*

The law of which I am thus speaking, and which is the subject of these raptuous descriptions, is abstract law-perfect justice. We never behold it set down in words. Our most carefully elaborated propositions will at some point exhibit their human imperfections.

this subtle essence

"Guest of million painted forms,

Which in turn its glory warms,"

animates a multitude of formulas, but is grasped and held by none. What may be called justice in the concrete-that which is actually administered among men-is so much of this absolute justice as human society is able and fitted at the particular period to comprehend and apply. This is one thing with one people, and another with another. It is one thing in one state of civilization, and another in another. It is exhibited in every degree of rudeness or refinement, from the nearly arbitrary decisions of a Turkish Cadi to the enlightened judgments of Eldon or Marshall. It grows and becomes refined pari passu with the moral and intellectual progress of a people, and in its turn reacts upon, and accelerates, this progress. All systems of law, therefore, are marked by the peculiar traits which distinguish the character of the nation by which they are framed. No standard of justice can be upheld in any nation which its people cannot comprehend and be willing to enforce. None will satisfy it which is not fairly on a level with its existing State of moral and intellectual progress.

*Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a fraude deterreat, quae tamen neque probos frustra jubet aut vetat nec improbos jubendo aut vetando movet. Huic legi nec obrogari fas est neque derogari ex hac aliquid licet neque tota abrogari potest, nec vero aut per senatum aut per populum solvi hac lege possumus, neque est quaerendus explanator aut interpres ejus alius, nec erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex et sempiterna et immutabilis continebit unusquisque erit communis quasi magister et imperator omnium deus: ille legis hujus inventor, disceptator, lator, cui qui non parebit, ipse se fugiet ac naturam hominis aspernatus hoc ipso licet maximas poenas, etiam si caetera supplicia quae putantur, effugerit." (De Republica, Lib III. Cap. XXXII. ¿ 33).

"Erat enim ratio perfecta a rerum natura et ad recte faciendum impellens et a delicto avocans, quae non tum denique incipit lex esse, quum scripta est, sed ɩum, quum orta est: orta autem est simul cum mente divina. Quam ob rem lex vera atque princeps apta ad jubendum et ad vetandum ratio est recta summi Jovis." (De Legibus, Lib. II. Cap. IV. ? 10.)