JAMES C. CARTER portunist in any of the relations of life, nor could he be an opportunist in the manage ment of a lawsuit, or in an argument in court. What he believed to be right was for him the only right. What he believed to be just was for him the only justice. What he believed to be the law was for him the only possible law for the case in hand. He would not "stoop to conquer," nor would he yield to win. Mr. Carter was a passionate admirer of the system of jurisprudence known as the "common law." He had a fine scorn and contempt for all attempts to fetter the un written law by statutory definitions or codi fications. He regarded the system of "judgemade" law as the ideal system. Strange to say, however, he had little respect for the doctrine of stare decisis, and did not seem to appreciate that this doctrine was the essenial backbone of the common-law system, and that without a strict and somewhat rigid adherence to precedents, the science of jurisprudence would cease to exist and each judge would become a law unto himself — "A cadi sitting in the gates and doing justice as to him might seem best." The flexibility of the common law, instead of being for him an objection and a ground for criticism —• as with the Benthamites — was its greatest, its crowning merit. Of course, I do not mean to be under stood as saying that he avowedly repudiated the doctrine of stare decisis. On the con trary, he recognized and asserted it as a necessary feature of a jurisprudence founded upon "unwritten law." He was, however, inclined to subordinate the importance of adherence to precedent to the importance of arriving at rules of law founded upon abstract justice, and accomplishing concrete justice in the particular case before the court. He himself, although a profound student of the common law, cared little for cases as such. His arguments were largely based upon his views as to what should be the law rather than upon what the judges had
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theretofore declared the law to be. He would sometimes contemptuously toss aside an authority as clearly wrong and contrary to justice and reason. This characteristic of his arguments in court was in one sense an element of strength, and in another sense an element of weakness. It added to the vigor and persuasiveness of his oral forensic eloquence, but it detracted from the value of his argument when con sidered by judges in the quiet of their studies — when they realized the force of the decided cases which they must overrule in order to reach the conclusion which he had so persuasively presented. No one has ever surpassed Mr. Carter in luminous, vigorous, and even passionate defense of the unwritten law as an instru ment for obtaining substantial justice and a scientific jurisprudence, and in opposition to what he regarded as unwise and danger ous attempts to trammel and hamper the law by legislative enactments. To him more than to any other one man, is due the defeat of the attempt to adopt a Civil Code in the state of New York, which undertook to put into rigid statutory form the common law of that state and which he believed would be a step backwards, and not a step forwards, in the history of our jurisprudence. His views on this general subject were very fully expressed in the address which he delivered before the Virginia State Bar Association, in 1889 — an address which shows Mr. Carter at his best in its wonder ful command of language, its happy and forceful use of apt quotations, its trenchant and vigorous argumentation, and its high idealism in thought and tone. Whether one agree or disagree with his views on the gen eral subject, one cannot but be lost in ad miration at the power, the learning, and the persuasive earnestness of his presentation of the subject. The exalted view which Mr. Carter took of the object and function of jurisprudence is well set forth in this address before the Vir ginia State Bar Association, where he says:
