In the moral sciences, there is no method or procedure which entirely supplants subjective reason." 31 We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without.None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read.
I have no quarrel, therefore, with the doctrine that judges ought to be in sympathy with the spirit of their times.Alas! assent to such a generality does not carry us far upon the road to truth.In every court there are likely to be as many estimates of the "Zeitgeist" as there are judges on its bench.Of the power of favor or prejudice in any sordid or vulgar or evil sense, I have found no trace, not even the faintest, among the judges whom I have known.But every day there is borne in on me a new conviction of the inescapable relation between the truth without us and the truth within.The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place.No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties."Our beliefs and opinions," says James Harvey Robinson, 32 "like our standards of conduct come to us insensibly as products of our companionship with our fellow men, not as results of our personal experience and the inferences we individually make from our own observations.We are constantly misled by our extraordinary faculty of 'rationalizing'--that is, of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong.We are abjectly credulous by nature, and instinctively accept the verdicts of the group.We are suggestible not merely when under the spell of an excited mob or a fervent revival, but we are ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the mature results of our own reasoning." This was written, not of judges specially, but of men and women of all classes.The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual disliltes and prepossessions.It will help to broaden the group to which his subconscious loyalties are due.Never will these loyalties be utterly extinguished while human nature is what it is.We may wonder sometimes how from the play of all these forces of individualism, there can come anything coherent, anything but chaos and the void.Those are the moments in which we exaggerate the elements of difference.In the end there emerges something which has a composite shape and truth and order.It has been said that "History, like mathematics, is obliged to assume that eccentricities more or less balance each other, so that something remains constant at last." 33 The like is true of the work of courts.The eccentricities of judges balance one another.One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.The same thing is true of the work of juries.
I do not mean to suggest that the product in either case does not betray the flaws inherent in its origin.The flaws are there as in every human institution.Because they are not only there but visible, we have faith that they will be corrected.There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute.We ought not to expect more of it when embodied in the judgments of the courts.The tide rises and falls, but the sands of error crumble.
The work of a judge is in one sense enduring and in another sense ephemeral.
What is good in it endures.What is erroneous is pretty sure to perish.
The good remains the foundation on which new structures will be built.
The bad will be rejected and cast off in the laboratory of the years.Little by little the old doctrine is undermined.Often the encroachments are so gradual that their significance is at first obscured.Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew.The process, with all its silent yet inevitable power, has been described by Mr.Henderson with singular felicity: 34 "When an adherent of a systematic faith is brought continuously in touch with influences and exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging clearly into consciousness.In the meantime the formulas of the old faith are retained and repeated by force of habit, until one day the realization comes that conduct and sympathies and fundamental desires have become so inconsistent with the logical framework that it must be discarded.Then begins the task of building up and rationalizing a new faith."Ever in the making, as law develops through the centuries, is this new faith which silently and steadily effaces our mistakes and eccentricities.
I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors.They may work a little confusion for a time.In the end, they will be modified or corrected or their teachings ignored.The future takes care of such things.In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.
The future, gentlemen, is yours.We have been called to do our parts in an ageless process.Long after I am dead and gone, and my little part in it is forgotten, you will be here to do your share, and to carry the torch forward.I know that the flame will burn bright while the torch is in your keeping.
