New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-08-22
IDEAL AND ACTUAL IN LAW.
ADDRESS BY JAMES c. CARTER BEFORE THE
BAR ASSOCIATION.
A RESOLUTION ADOPTED URGING THE SPEEDY
PASSAGE OF AN ACT TO RELIEVE THE
NATIONAL SUPREME COURT.


Saratoga, n. Y, Aug 21.-At the meeting this morn
ing of the American Bar Association number OF new
members were elected. James C. Carter delivered
most admirable address the Ideal and the Actual
in the Law which listened to attentivey BY the
$50 persons present and frequently interrupted by
applause.
Mr.. Carter spoke in part follows:
If we examine ourselves closely shall find that
associated with much tlankfulncss there Is yet feel
ing tnat we are not individually nor collectively 1s
profession all that ought TO be. NotwlthstandInS
The eXtTavagen manifestations OF the Ideal tendency
it is hignly useful atirbutc OF nature. ii con
tributes the true nobility OF the Individual man, and
It's activity marks spiritual ana progressive a.
e rsI nG the r,at Atsesen Of the
world, and the great lawyers as we'll have been
idealsts: All great reforners have been ldcaists.
solou Of Greece, uniting the fire and fancy Of the
poet with the practical instincts OF the statesman
and lurst seized upon period ~ creek sSce'y ~iie d
v&ncng industrial and commercial era, formed con
eyp,iNh % Sate ~ Hvm @ I rednced II 70
system in his laws and created the Athenan Com
monwcaIth The trainers Of our National Constitution
were idcaljsts. No men Of the mere mattcr0l-iact
type could have GTasped the conception OF dividing
sovereignty INTO parts. and awarding some 70 niaS
distinct Governments, and others 10 one al embracing
Government. Marshall was an ideallst "hcn set'Ul-
out in his thought the conception OF American ma
tOnalty more clearly than the trainers OF the Consul
tuition had done. he that their work was tlreaWhcd
with defeat and supplemented 1t win tne Ia. p.a
in pursuance of it, IN fac, a. well as III Hae' to
II we should ask the body of lawyers the question
what law really vas the maG PITY woc Citc P' Iy H.
supreme power in 4 state commanding what is hight
ard prohibiting what Is wTOng.' And Austin tc
most celebrated Of modern English writer's upon tbs
science Of jurisprudence adopts TIE MAN element "a
this definition by asserting that law l. command
proceeding from superior to an Inferior ana ehoFceu
cannot help thinning that this is Fundamental oll Gt;
error. There would be some support 10 tils dci-
ritlon II by law only statutory law were intended.
although even hero would not think IT free from lust
criticism bat Austin docs not limit IT, lie intends
il as a definition Of all law. unwrittci n we'll rs
written But how does he make it apply 10 that vast
body Of our law % which We know nothing except E
SAYING. in substance. that the sovereign adopts As law
it TO he obcycd But where IS the evidence Of this
adoption and command II tie fact actually cNs IS
he pointed ont which proves Il. nor can any otlc
to.m OF adoption or commnnd be SHOWN As'n, II
law be a command addressed tiOm Il SOVEREIGN 10 q
sul cc and has force because 1t Is cO'nmnnd. II must
proceed from the free will and power OF the sovereign
the genesis Of law by the hypothesis Of a command
Is wholly Legitimate There IS no occasion for any
tiop, y, matter q fact. and the solution of the
question lies like that Of any other similar problem
in a scrutiny Of the actual facts. That The judge
cannot make the law Is accepted from the start i
IS sreed that me tine 1e 9nsi he e9eno" i'" t
search Finally rule Is dedrcod which IS declared
70 be taG ., one ,c % 'hg IN 5 ali l a~ ,Trs SS
are nla!n and pllpaAlc are % that the whole
proces conlt I'm sorc 5G'F tr To- ta o ,ue, rnc @
mat n Is facility assumed that the sense Of justice
the I'm all these who engage In the s~'rchLti,
Is 70 say, that they have common standard of
Justice from which they argue with and cndcavor
TO persuade each oher l4 tha the reo OF tnc
search IS the habits. Gus oms. business ana manners
Of the people. and these previously declared rue'
which have sprung ONT OF previous similar nl" ,i
which IS the main hodv o( our law IS not Command
body q commGn1s but cons,iS Of ruiz snTln PRIME.
hav- hccn framed in The % The application Of
that standard. through long period to the itnnsac-
The social standard Of justice EXISTS IN the habits
customs aad thought, 81 ne people ana al" I'M Is
,uch n period Is he selection Of person for
Judge who hest comrrrhend- those habits. customs
the nOaOn Of law too nearly with that Of power.
peak indeed Of The sword Of Justice. but his sword
is not known. Il I, borrowed from the arsenal q
dn HccE amilton in one q hi; Ges, papers.
o2Gd how grn pr s,Ts . c 1T .rm upon upon
the pr,'ula;e that law is command, in The mce ~
tc universal md n.e.s.,rZ maxim that every one Is
Arriing that statute law slightly differs from
unwrlttcn laws. he said:
We all know. that when statute Is passed which
Gonhics WI the opinion, c"s,"s' Sa - tbe
community, It j., difficult and often wholly impossl-
a iS +" are re 'V a5'oaiely fa i' ''''''''
VII legislation seeh, t. accomplish IN ne realm o.
the law only what IL seeks 10 the domain Of business
and finance. Neither law nor practical morality can
ever Transcend universal custom. foly may
be wrong in Ncwyork. hu' II IS right among "a" Turks.
And I'm this find further confederation Of me main
proposition which makes custom the origin Of law.
II the foregoing Views are well founded, am no"
justified In stating the conclusion 10 %hlch they al
Those are that law ! not body OF commands IN
posed upon society from without. either ~ an IN
dividual sovereign or superior or by solvent SOW
crcSn body, constituted by representatives. OF society
itself II exists at all times one Of tho elements OF
society. fprinefng directly from habit and custom.
IT is therefore. the unconscious creation oi s9'ey or
tona instances that judicial tribunals or icsiSau'e
cnactmcnts are needed. =, -.
II is the unconscious resolve % society that all rs
m as
the offices Of the law j. to ascertain the tuth IN mat
crs Of fact; but how often are it, efforts wholly sue
fun Our own boastcd trial by jury which ahirn'
that all grades 81 capacity above dwelling mlocy arc
ale fitted 10 the exalted Office Of sitting truth from
error viii excite the dcr.sOn Of future times Ccnu
ne, ago our ancestors recorded with every form OF
olcunity Lclr resolve that Justice should be neither
high and pure but how far removed we sin are rom
It, rcalizatoni Justice Is now, In mulliindes OF IN
most to denial and there have been wanting mort
fyng examples In which it has been believed to nave
Upon occasions Ike the present, which seem appro-
pirate for the purpose Of taking noe Oh Inc t'lnS'
the place Il should hold and the Offices IT should Dis
charge In society, let MS ask ourselves WHETHER IN to
particulars have thus indicated, we are not Justly
chargeabo with neglect, and resolve 10 do something
10 repair IT, Let rs not boast mat our profession
deals with The highest Of sciences aud yet remain I'M
able 10 explain Of what that science consists Let MS
not make claim 10 be masters Of the law while We
and the real methods By which il IS brought into lfc
and action Let us do something through our inhn-
cnce IN the Of local education 10 establish there
for the first stage I'm professional training better pro
vision for the study Of the science OF jursp71rnce
Let us make this science the subject Of our prlva"
studies. Bv such efforts. and by such only. can we
rise above the vocation Of aiding our clients by
advice in the chamber or action I'm the forum, ana
qualify ourseve3 for that other and larger office OF
leading and guiding society In its cndcavors for The
Reform Of the Law.
After Mr Carriers address reports Of the stand
ing Committee were read judicial admins
traton and remedial procedure. on awarding a
gold medal and forms of vcrdlcts in criminal pro
cedurc.
The committee the award OF "A gold medal recon
mend that there be standing committee, consisting
Of the president AID all former presidcnt' OF the as
ISOLATION. VIII, n shall meet annually on the dD pc
fore the first session Of the assoclaon to make the
award OF gold medal to such person IN the country
a. NAV be deemed 10 have mcrtcd 10 by services IN
advancing the science OF jurisprudence or the admin
stFstion Of Justice