National Republican., 1885-06-13

Tho address delivered by Dr. Francis
Wharton at tho ommeneoment exercises
OF the Columbian College, the full text Of
which ia given below, is regarded with
great interest by the bar aud law students,
no less from the fact of Mr.. Wharton's
descent from n famous legal family than
from his own fame as an author Of legal
lore.
The lawyer Is from the nature of things n
law maker. The bench Is rightmlly regarded
ng the immediate power by which the com.
mon law II framed. The bench, however Is
IN several respects the organ Of tho bar and OF
law relormors more or less associated with the
bar. Lawyers, by exhibiting 20 tho bench the
illogical character or bad effects Of particular
preCedcns, cause the OyCrruling OF modifying
Of these prcccdeuts But law reform thus
operating through the bar is no work OF radi.
Cal destruction. II Is simply the adaptation OF
the law OF the past 10 the conditions OF the
present And in performing this task all good
lawyers nrC law reformcrs, aud eminchtly Il
this the case In two periods Of lawyers
life his EARLIER days, before he Is absorbed
IN practice, and his later days, when he has
retired from practice sufficiently to enable
him to give time 20 the consideration Of law
rs n general rule OF action instead Of law as
ruling concrete case. To lawyers Of the first
class-lawyer. preparing for Practice now
address myself, proposing Ia suggest certain
law reforms they may aid In ctcctiug. 10 was
said by Disracli that the blunders of young
men are better for the country than the pru-
dCuCc of the old. II for blundeTs We substitute
enlhusnsm ] think this is true and Il Is emi
nently truo that by the enthusiasm Of young
men have some of the most important adapta.
tons ot law tn public conscience and need been
wrought II may not be Improper. therefore,
for me, In addressing those ON whom this
work of law.moldiug aud adaptation will
fall, to notice some OF tho general principles
by which they should bo guided IN this i'm
portant task. Aud these principles are a. fol-
lows:
Laws to be lasting and beneficial, must rise
upward from the people to the law.maker, not
doscend downward from the lsw.maker to the
people No law can be permanently operative
or beneficial that Is not decluraory OF existing
conditions. Adaptation Of precedcnis to new
cases must be in submission of these tOsts, aud
largely by the fundamentally Of well-ordered
bar.
rhc English common law, taking It as n
whole, Is full Of illustrations Of the elasticity
with which law, when effective adapts itself
to the conscience and need OF the times. can
now take up but single instance OF this
that Of the modification of the legal view OF
causation In sympathy with popular cOndi.
spiritual causation was exaggerated. and
that OF physical c9usation undcrvalucd.
Indictments were held good at COM
causing waxen etfges to melt before slow
fire. On the other hand while killing by an
air gun might have been attributed 10 magic,
IL would never nave Decu attributed 10 q pro-
jectile propelled by a human hand. Even
uausaton through chnin OF negligent agents
was disCreditcd That this as well Hs belief In
magical causaton, Is incidental TO an early
stage IN civilization, is illustrated by several
stories in the arabian Nights" In one ofthese
an old gentleman, who was a hunchback, was
dining out, and through the negligence of his
hosts cook was helped to piece of fish in
which there was dangerous bone. This he
swallowed. was choked, and died His host
was alarmed, the law being as aiterward in
England that he with whom dead body is
found Is prirna facle chargeable with the
death, and the body OF the hunchback was
trundled OF surreptitiOusly TO a neighbors
door. The neighbOr. No. |, coming out aud
stumbling over the body, stealthily passed 1t
on to the door of neighbor No. ., who in the
same way transferred the unwelcome deposit
10 neighbor No. g. Now, though in the same
volume we have numerous cases OF injuries
Inflicted by magic, It is to be noticed that in
the hunchback's case there appears To have
been no notion that II wrong could be imputed
buck through series of innocent agents to
the author of the original negligence or that
the death could be chargcable to any other
than the person with whom the body was last
found. The conditions of society We're such,
W. in all primitive times, that while spiritual
CausntiOn was assig1led scope unduly great,
physical causation was assigned scope un.
duly small. The same condition of things OK.
i,tGd IN early English jurisprudence. A witch
could be convicted OF killing or wOunding by
magic; but if by chain of successive agents.
one nrgligcntly acting on another, a wrong
Wus done, only the last agent was held culpa
Die. The first departure from this rule as TO
negligence was in the famous squib case
scott VS.. Shepherd, ., w. Black 1927 decided
iys771.
IN this case A threw a squib at h, who tossed
II on 10 C., who then flung it, 1t being about to
explode at u marked place where II struck
and hurt ID. Now, the question of the liability
Of e was properly held to depend upon
whether he had tossed the squib on convul.
siyely, TO avoid 1t exploding on his person, a.
negligently, so az TO make him the starting
pUiut OF u new line Of culpability he being
liable In the latter case but not in the former.
This distinction is now in submission to the
common.sense view of the community in the
present conditions of civilization, formulated
i'll the rllo that Caisal relationship, in cases of
negligence, may he broken by tho interposi.
tiOn of an intelligent agent giving new turn
to the current but that II is not broken by the
interpositOn Of AN irresponsible person, whose
interpositon the original starter of the wrong
ought to have expected or of u person acting
unConsciously, or in fright, under the same
conditions such a rule was not even con-
Ueiyed of in the hunchback's case II was
certainly not expressed in the squiD case, yet
1t exists now as one Of the emanations of the
civilization of our day. The same may be said
oi the expansion Of the limits of malicious
causation In old times II was held that there
could he no conviction OF killing unless the
death and the wounding occurred in the same
county, and 1t was also held, down TO the last
few years, Ihat TO make Co.principalship in 4
crime there must be actual presence at the spot
graphs, and telephones, by dissOlying the old
Huitations as TO space, have, without legsla-
T!op, soroguted th!S Law. An explosive pnck-
age sent nom Sew York 10 San FrnuciscO
makes tho uunder i!a6io. according to the now
prevalen, opinion, Ia either Jurisdiction, ulId
!; has been lGIaiy prop'I!yheld IN Nevada thnt
co AocempliGo, Who ON mountain peak,
dlpeoted MA sseoc.alcs, teu miles of In an.
other county how 10 rob II coach, Is a princi
pal Ia the crime And so IL Is with lesser
otcnses: A letter containing ial ~ pretense,
paaaeb from country to country in the same
way as does an electric spark through
an Insulated wire, aud from the very
ract of such Insulation the author Of
the letter in tho eye OF the present
law, is regarded ~ talking face to face with
tie sendse, and Ia subject ~ process IN either
country. The facilities OF recent days for the
insulated tr6nsmissiOn of Intelligence, and
even Of goods from country to country, la,
law distinctions between local and transltoTy
actions, and Is now leading 10 the abandOu
ment of the old common law rule that crime
must be tried In the place whore the accused
was at the time present. SO 1t is that common
law Jurisprudence conforms itself quietly and
iustinctively, In thsas IN other relations, 10 the
popular conception of what Is right and Is re
quired by tile conditions OF the times.
The features of deClaratoTinOss, and OF re-
spOnsiveuess 10 popular conscience and genius
which are incident to all permanent and bene
hcial laws are singularly conspicuous in the
constitution Of the United states, II may bt
reCollectCd that from Burke sprang the
maxim that no law is effective unless il is de
Clarutory, and that Burke and Fox, ut timI
when their sentiments on the RTenUh revolu
tion widely diyergcd, united IN saying that Il
was prlorl impossible that any one of tht
constitutions adopted by FRANCE during the
revolution could succeed, Mr.. Burke neateC
thOm with The greatest contempt ~ the spCcu
lAtiuTs of cOuCtited theorists, and Mr.. Fox
as SIR Robert Adair tells us, refused even tC
read them, on the ground that they were a
unreal IA bubbles, Why was II, then, tha
these eminent statesmen should, while thu,
speaking, have accepted the constitution o
the United states rs a monument of pOltiCa
wisdom II is simply because they regarded
the French constitutions rs papers cOneeiyot
and imposed on the people by doCtrinairt
philosophers, while tho Constitution Of the
United States sprang from the genius and con
science of the people themselves, nodded by