170
THE GREEN BAG
SOME MODERN TENDENCIES BY ROBERT C. SMITH, K.C. 1 CANNOT find words to express the pleas ure I feel in being present with you to-day, and the pleasure I have felt in attending the meetings of the Bar Association of Nebraska. It is not always possibe to analyze one's moods and feelings so as to assign a definite cause to each of the elements in a cumulative sentiment, whether it be of satisfaction or of sorrow. If I am wrong in my history — and it will not be the first time — I am sure you, sir, will correct me, but I understand that when an illustrious general named George Washington was making great history upon a portion of this continent in a war with my national ancestors — if I may so call them — the State of Nebraska, as a State, maintained a strict neutrality, even according to the revised standards of the Hague Convention. But that is certainly not the reason of my pleasure in being here. Nor does the rapid develop ment and present greatness of your State altogether account for my feelings. My delight is undoubtedly due in part to the fact that I am among lawyers. In Port land, a few months ago, some one said: "For once I have heard lawyers, as a class well spoken of." "And where was this?" he was asked. "At the meetings of the Bar Association," he replied. As a class, I fear we have not suffered the woe that is decreed "when all men speak well of you." Though I am among lawyers, and enjoy the spirit of confraternity that always exists among them, I am not without some em barrassment. We read that wise men came from the East. We are not told that they came to criticize and rectify every thing in the West. Still it is one of a lawyer's functions of give advice. Samson shorn of his locks could not have felt more absolutely helpless than I feel, finding myself in a jurisdiction where I am not even qualified to give advice or to dispense
opinions — and this without any dalliance with Delilah. If it were left to some of my learned friends, I have no doubt they would dismiss the reference to the wise men by the observation that conclusive evidence of their wisdom is found in the fact that they left the East. Disqualified — or, perhaps more correctly unqualified — as I am in this baliwick, I still feel a certain community of spirit and community of interest with you all. Law is the distinguishing factor of civilization, and though its methods may vary in different systems, its aims are substantially the same in all. I was brought up as a civilian, and very naturally exult in the superiority of the civil law, as a philosophical system, over the common law as admini stered in such countries as the United States and England. Do not be alarmed. In a discursive address such as this, I shall not attempt any comparison of the systems. In a very general way I may say that the civil law begins by fixing principles in the abstract, and when the custom of citing cases crept in it was rather by way of illustrating the application of the principles, than as authority. Perhaps the original and fundamental postulate of the common law is the same, for it assumes that some where there exist principles appropriate to the decision of every case if the judges and lawyers only knew them, and they are sought for in the mass of previous judg ments which we call jurisprudence. Those of you who were fortunate enough to attend the last meeting of the American Bar Association no doubt enjoyed the learned 'address of the British Ambassador upon "The Influence of Historical Environment upon the Development of the Common Law." This development of the common law has always appeared to me to be one of the most remarkable things in human
