Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-02-11

cOnceit Of its trainers. 1t is beyond
human ken to compress INTO Gom la
sentences rules fit to meet the kaleido-
scopic changes of the ever advancing
needs of human wit. The most unsatis.
factory. the most uncertain. the most
the public statutes OF the statute of
frauds 1t has been well said that while
every line may be worth a subsidy, every
pauper law. absolute. arbitrary. resting
upon no principles. assisted bv no analo-
gies. after seventy-six years of judicial con-
struction are still a terror to the tax-pay..
ers of towns tangled in the meshes of
their uncertainties Unaided by fixed
principles applicable to their construc-
ton even judicial opinions have so
cashed that the statute is indeed pau
per law.
To attempt by statute to amalgamate
the systems Of the common law and oil OIL
as an entire science is to invite disaster
upon the breakers of uncertainty The
one is the complement, of the other The
two unit. Around the growth and de-
velopment of each are centuries of his
tory. The very contest of equity for eX-
istence gave 1t life and bone and blood
the riches of the civil law. Narrow
would be the analysis that finds the orr
sin OF the common law as an entirety in
the laws. the customs and the precedents
OF early England. The learning of that
day borrowed with a lavish hand from
the ripe learning of ancient home. Per
maps OH d ldTCeIly ttldH ii DOTTOWlIlS
Bracton and Coke did not deign to trans
fer to the body of English law many Il
broad principle of the civil law. and. not
with n due of the
more exclusively Anglo-SaxOn in our law
than in our language. The Norman
softened the roughness Of our mother
tongue with the grace and beauty of the
French, itself the provincial descendant
OF the stately eloquence that lives TO-DAY
in the classics of imperial Rome. Not
rN,,1x pphf wit !, tan.
ing of the civil law. and out of the flu
sion of the two came what with char
| acteristic pride we are pleased to term
the common law of England
To look only to the history of the An
glo-SaXon for the origin of the common
law is to be blind to our cosmopolitan an
of the common law. that. unaided by act
| of parliament or of legislature. it has
had an inward power of growth and de-
velopment sufficiently expansive to meet
Il widening civilization. Statutes are iron
bonds; principles are muscles that expand
| for the work demanded.
| To. the civi, law we owe much of the
vitality of the rules of principal and
| agent, of sales. of partnership. of con-
| tracts. of carriers. OF Dailments. OF
fraud. and of insurance. Without il. the
| science of equity would be lifeless. Upon
| it rest the cardinal principles of maritime
law. the law of wills. and 'ne law OF
nations.
The common law that dared to reach
| out and seize the best of the civil law
ought not to fear today to learn even at
the feet of Rome. The. study and mas
| terry of the civil law should be insisted
upon that the student may come to the
| bar imbued with a broad and catholic
spirit. The practitioner. round-should-
cred with the burdens of a client who
sleeps while the attorney walks the floor,
| should come to the argument of his
cause. in his right hand the principles of
the common law. in his left the analogies
of the civil. The court. always conserva-
lively progressive. will be ever anxious
| to receive the truth and to declare the
law wisely and well. The great masters,
| like Story. have never hesitated to be
| taught the truth from every source. BY
the united effort of bench and bar. the
hand that threatens the stability of law
and the perpetuity of our institutions can
| be stayed An undue conservatism in
vitcs destruction. The letter killeth. the
spirit giveth life. As a profession We are
the devoteeS of truth. With our present
system. truth is secure behind walls that
for centuries have safely guarded life.
liberty. and pursuit of happiness. Let
| us be slow to open the gates to the re
former, who would forget the learning of
the fathers in the conceits of the nine
tenth century.
substance. The outward form not al
ways the inward spirit. While codiiica-
ton and sudden change would endanger
the science Of principles that we call the
that our common law methods of proce-
dure are but poorly adapted to the rapid
bu u;I3,;;, methods , of the day They are
some. In 1920. Inc people ordained in
their constitution that right and justice
shall be administered freely and without
| sale. completely and without denial.
promptly and without delay"
That justice is administered freely
and without sale has been the pride Of
our State from the adoption of the con
stitution to the present hour. The breadth
of scandal has never been raised to even
charge corruption against a single men,
a n fhp fUn tn1 t,.t En< H.
ored the judicial annals of our State. The
bar. the people, and the bench itself have
demanded and still demand that the
flee shall be assumed by men. without
| fear and without reproach.' Nay. more
they demand that judges shall be honest
oath. but from conscience that loves
truth for truths own sake.
1t is not true that justice is admins
tered promptly and without delay" It's
delays are a grievous burden Methods
of procedure instituted in the days of the
stage coach and weekly mails are poorly
having at their command the telephone. 4
the telegraph. the railway, and the me-
chanical appliances that tend to annihi-
machine revolutionized the mechanical
practice of law, but our methods of pro
cedure still cling to the days of the
| slow moving pen.
| When the merchant. after making his
will, went TO Boston twice year to pur-
| chase his goodsit was fitting that a court
| to compel him to make payment for his
goods should be open but twice a year
| That was prOmptness in 1920. May | sug-
| gest that we lag behind other states in
our system of nsi prius courts. 1t had
| its origin in the early history OF
| the mother country. when travel
| ling from circuit to circuit was
la burden. In the newer states
| and under the new procedure act of Eng
| land the courts of law are always open
under rules somewhat analogous to our
present procedure in equity. In equity
we had the good fortune to build and
| institute in 1881 comprehensive system
| of procedure at time when the business
| methods and necessities of the day I'M
| consciously influenced the drafting of the
bill. We have been equally fortunate in
| having upon the bench judges who have.
SO studied the practice. of equity that
| they have supplemented the statute with
equity rules calculated to furnish equit-
Equity travels by rail. while law still
uses the stage coach. l
can see no reason why writs should |
not be made returnable on the first Tues |
day or every month in like manner as |
blllS IN equity. reasonable time should
| be allowed. say IA days. within which the
defendant should be allowed to file specI-
hcations of defence with has affidavit that
he intends to defend in good faith Upon
the filing of such affidavit the action to
De entered at the nisi prius term then N
session or then next to convene. IL no |
affidavit is so filed. default should be en- |
tered and execution entered after assess |
ment of damages by the clerk This