In each of these two cases there was no statute. The rule enforced was simply the old-fashioned law of public and private nuisance as it has been developed at the hands of the courts for centuries. The third case is Rideout v. Knox,' decided in 1889. Here a man built upon his own land a high fence, the height being designed merely to annoy a neighbor-in short, what is termed a spite fence. The public was in no way injured, but injury did result to that neighbor against whom the fence was built. There was and still is in Massachusetts a statute to the effect that if a person builds a fence more than 6 feet high for the mere purpose of annoying someone else, then his fence is a private nuisance. In this case the person who was injured did not try to get an indictment; and, indeed, he could not have got that, for this was not a public nuisance. He did not try to get an injunction. He simply waited for damages to accrue, and then brought his action for damages. The only point necessary to mention now is that the statute was held valid. Thus we find an example of a third remedy and also of a third sort of nuisance to use the hospitable word which covers all these instances and many others. The fourth and last case is Stone v. Heath,' decided in 1901. There a man had upon his land a mass of decaying vegetable matter, which threatened to contaminate a public water supply. By and by the public through its board of health began to abate the nuisance by destroying the mass of vegetable matter. Here the parties to the litigation were placed in a different attitude from the parties to the cases summarized heretofore. In this instance the man who went to court was the man who was perpetrating the nuisance the owner of the decaying vegetables. This owner went to court and prayed an injunction against the board of health. He did not succeed, for he was told that under a statute the board of health had received power to destroy such decaying vegetable matter as was really causing a serious danger to the health of the community. This case, then, calls attention to the fourth remedy against a nuisance; that is to say, the remedy of abating a nuisance without the intervention of a court. These last two cases arose under statutes. In one instance the nuisance was a new one defined by a statute. In the other instance the nuisance was not made one by a statute, for decaying vegetable matter in such a place had been deemed a nuisance always; but what was created by statute was simply the board of health. There have now been enumerated four remedies, to run over them againindictment, injunction, damages, and abatement. These four remedies are given by society for the somewhat hazy sort of wrong, the nuisance. And what a hazy sort of wrong it is, for the word nuisance means absolutely nothing but annoyance. How can anyone define annoyance? In those four cases what do you suppose that those four wrongdoers would wish to say? You can easily imagine, and you can easily imagine what would be the answer of society. The first man would say, "Here is my slaughterhouse, my own slaughterhouse, my very own; and society is interfering with my slaughterhouse and with me." The second man would say, "Here is my bell, which I enjoy ringing, and society is interfering with my bell and with me." The third man would say, "Here is my spite fence, and great satisfaction do I get out of it, and society is interfering with my spite fence and with me." The fourth man would say, "Here are my own decaying vegetables, and society is interfering with them and with me." 1 Massachusetts Reports, vol. 148, p. 368. Thus, these four men, a sort of male quartette, would be singing four slightly different parts. It may well be imagined that they would then say in unison, "You are interfering with the right of property, and that is a serious thing; and you are interfering with personal liberty, and that is still more serious." When the male quartette should finish that unison, it may well be imagined that society would stand up and sing in chorus, "Yes, yes; we are interfering with the right of property, and that is a serious thing; and we are interfering with personal liberty, and that is still more serious. Yet the right of property and the right of liberty, odd as it may seem, were created by society for the purposes of society; are recognized and enforced by society for the sake of the general welfare, and are restricted now and always in the light of the public interest which caused the creation of the right of property and the right of personal liberty." Then the male quartette would say, "But how do you define this power of society to limit property and personal liberty?" Then society, speaking through the law-for the law is no more no less than the voice of society, and if one does not approve the law one must complain not to the lawyers but to societysociety, I repeat, would say, in something like a chorus, "There is a general principle underlying this restriction. It has two features. In the first place, society can not complain unless there is substantial damage; and, in the second place, society can not complain if what is being done is carried on in a proper place and in a reasonable way." Then that male quartette would say again in unison, "What indefinite language this is. What is substantial damage? How do you draw the line as to the substantialness of the damage? Besides, what are proper places and reasonable ways for the carrying on of business? Where do you draw the line there?" Then society would have to say, We can not draw a definite line for the present time, and still less can we draw a definite line for the future." Then that male quartette would say, “Oh, think of the danger of doing injustice to us." Then society would have a right to say, "Gentlemen, we have hedged you about with the best protection that we know. The drawing of those lines will sometimes be in the hands of 12 men of your neighborhood who have no peculiar interest in the matter; and if there be not a case for a jury, for the reason that the case may be a suit for an injunction in a court of chancery, then you will have the protection of having these puzzling problems as to damage and propriety and reasonableness passed upon by a skilled judge, who is not interested in the matter and who is the mouthpiece, the responsible mouthpiece, of the people of that same neighborhood at that same time. What more could society do for you four people who are protesting against these limitations upon your rights of liberty and of property? The limitations are not new in principle, although they may appear new in application to your case. The procedure is not new. The machinery of the judge and jury, and also of the judge without a jury, must be conceded to have existed for centuries, and must be conceded to have taken care of matters even more important than these." Sometimes it is worth while to stop a moment and to notice the larger aspects of homely law. This rather unattractive law of nuisance is part of the necessary protection of society in its highest interest-its health and its morality-against the thoughtlessness, the unskillfulness, and the selfishness of the individual; and clearly society has provided sensible rules and has done its best to prevent them from being used oppressively. And now it is time to return to that quartette of objectors, who for a moment have been taking breath. Surely they will now complain again; and they must be expected to use an abusive epithet; for they must be admitted to be in the last ditch. They will say, obviously enough: "Oh, this is socialism." No, it is not, and no good can come from calling it so, for if this be socialism, then socialism is as old as those words of society which we call the law of nuisance and as old as society itself. The law of nuisance, in truth, is only one of at least five methods in which society has created and retained and developed powers which enable the world, as time passes, to be a place fit for men. Men must live, and must live here and now, and must live here in the next generation also. There must be rules to enable them to live comfortably and morally. There must be machinery whereby from time to time the needs of to-day are met. You have been taken close to the wheels of the humble humanizing machine called the law of nuisance, and you have seen that this machine is capable of so modifying the privileges of property owners as to harmonize the advantages of private property and of personal liberty with the welfare of all. There is not room to inspect with similar care all methods whereby society, through the law, achieves this end. There are, as I have said, at least five ways-and indeed there are morein which the law-that is to say, society-without any revolution at all, and without any need of socialistic dogma, does so limit property and liberty as to achieve the necessary welfare of the time. To each of these five ways is attached a requirement of reasonableness; and it is thus that the rules, though permanent in essence, carry with them an ability to adapt themselves to current circumstances. One of them is taxation, which takes from individual wealth more and more as society needs more and more for the development of new institutions. Another is the doctrine of eminent domain, by which society, with compensation to be sure, takes from the owner property which may be dear to him, and takes it simply because society needs it for higher purposes of its own. Another is the ascertaining and limiting of the callings "affected with a public use," as the old phrase runs, for society has long said, and to-day is still more emphatically saying, that there are some callings which are either so dangerous or so useful that society has the right and the duty of regulating them. Another is that elastic force termed the police power, whereby society so controls the individual as to secure health, quiet, morals, and the like. The law of nuisance is merely a fifth member of the masterful group of public powers essential for the proper development of mankind; and the essential doctrines of the law of nuisance, as you discovered from the decided cases which were summarized, are merely that an individual may not use his property or his liberty in such a way as to do substantial damage to his neighbors or to the community and that he must conduct his business, however useful it may be, in a way that is reasonable, having in mind the circumstances of the current time. Thus we are reminded again of that male quartette. Clearly those objectors would wish now to ask one last question, and that is, "Where will this development of doctrine stop?" I trust that the chorus of society will be truthful in this matter and will say frankly, "We do not know." And now, just as our predecessors have shown themselves worthy of being trusted with those five great powers and more, and just as we of this generation have not gone to an unreasonable extreme, so we may well believe that our successors will also use fairly the same powers-powers which we did not create but which we inherit-and that our successors will apply wisely, with occasional mistakes, doubtless, the same doctrines. If we appreciate our own shortcomings, we think-indeed we know-that our successors will be as wise as we, and that they will not go too far, and that they too will apply fairly to the needs of their place and time all the humanizing and civilizing powers which have existed so long. However, the proper appraisal of such hopes may appropriately be left to the future; for all that has been demanded by the needs of this discussion has been to explain on the humble basis of the law of nuisance that law is a science which gathers, classifies, and construes the doctrines deemed by society necessary for the constantly changing and increasing demands of mankind; that it is not an exact science; that it is not even as exact as the so-called natural sciences; and that it is conspicuous for the difficulties with which it is surrounded and the importance of the problems with which it is concerned. By this time it may be apparent that it is not inappropriate to classify law as a science and as a science of consequence. Why, then, is it that lawyers are not called scientists? One reason may be found by perceiving the many aspects of a lawyer's intellectual work. In so far as he may happen to be part of the body to which society has delegated the task of making law, he is a creator or at least an inventor, and a creator or inventor of rules having the quality of elasticity and of growth. In so far as he is not a creator or inventor of rules, but a mere observer and classifier of them, he is a scientific person, intrusted with the delicate function of ascertaining and stating rules having that same useful and perplexing quality. In so far as he is neither a part author of rules nor a mere gatherer of them, but a person charged with the task of applying them to facts, he deals with an art. His work being so various, he does not call himself by a title which indicates only a part of his activity, but by the title which indicates the whole of it-a lawyer. Yet the chief reason why lawyers are not called scientists is undoubtedly found in that aspect of the law which this discussion has emphasized—namely, that law deals with rules made by men, all of these rules being subject to repeal or amendment, and some of them being stated in terms of such elasticity as to enable them to satisfy new circumstances and new ideals without necessity for changing the rules themselves. A science collecting such rules is vastly different from mathematical and natural sciences, and hence the person versed in such a science differs much in his mode of thought from persons usually termed scientists. Yet I must not evade a series of questions whereby some metaphysician might wish to cross-examine me and to prove that human law is a natural science. Is it not clear that human law--a system regulating the actions of men among themselves-is as essential to the welfare of mankind as are the so-called laws of nature? Yes. Is it not, then, a law of nature that there shall be human laws? Yes. Are not the very changeableness and elasticity of human laws dictated by natural necessity? Yes. Are not human laws, then, laws of nature? No; not in any very useful sense; for, though that there shall be a system of human law is certainly demanded by nature, the details of that system are determined not by nature but by men. Yet are not the details required by the circumstances with which the men are surrounded? To follow this line of thought is to discuss the freedom of the will; and that way madness lies. A physicist assumes that the law of gravitation is the same in North America and in South America, and that it is the same now as when the pyramids were built; but no lawyer would say that the laws of even the most refined of the ancients—the Egyptians, the Hebrews, the Greeks—were identical with one another, or are identical with the laws of any modern country. For purposes of classification, therefore, whatever a metaphysician may say, a lawyer perceives that the laws of human law are different from the laws of nature. Thus we are again brought face to face with the fact, and the reason of it, that when the investigator compares the everyday law of the United States with the everyday law of Latin America what he is prepared to find is diversity. The CHAIRMAN. Ladies and gentlemen, the first paper of the morning is by an eminent member of the St. Louis bar, who has a national reputation, Mr. Frederick N. Judson, who will speak on "Recent law reforms in the United States of America," and I take great pleasure in introducing him. RECENT LAW REFORMS IN THE UNITED STATES OF AMERICA. By FREDERICK NEWTON JUDSON, Member of the Bar in St. Louis, Mo. The popular as well as the professional discussion of law reform in the United States of America relates, not to the substantive, but to the adjective side of the law; that is, to the adequacy of the judicial procedure in the United States in the practical administration of justice. It is no exaggeration to say that the judicial procedure in the United States is now on trial before the bar of the public opinion of the country and even of the civilized world. The public arraignment of our judicial procedure has appeared not only in the popular press, but in our American and State Bar Associations, and a former President of the United States, himself an experienced jurist, has declared that the most conspicuous failure of our American civilization is in the administration of justice, both civil and criminal. This arraignment of our judicial procedure has been declared in the platforms of our political parties and is the most frequent subject of discussion in our bar associations. On the substantive side of the law, the complex form of our Government, with the dual sovereignties of the States and Nation, in the adaptation of the law to the demands of commercial intercourse, has demanded progressive steps toward uniformity in our State regulations, particularly on commercial subjects. A very effective agency in the progress of uniformity in legislation has been the organization and service of the Commission on Uniform State Laws affiliated with the American Bar Association. Thus, the negotiable instrument law drafted by this conference is now in force in 40 States, Territories and possessions and the District of Columbia; the warehouse receipts act in 24 four; the stock transfer in 5; the bill of lading act in 9; the foreign wills act in 6. The labors of this conference have thus been very effective in promoting the uniformity of legislation, particularly in commercial matters, and in thus adapting our law to the demands of a commercial age. On the other hand, in our legal procedure the delay and inadequacy in the practical administration of justice have been the subject of extended investigation in our bar associations and have been impressively contrasted with the promptness and efficiency of other judicial systems both under the common and the civil law. We have followed the example of England, the country from which we inherited our common law, in abolishing in many States the ancient common-law forms of procedure, but we are now beginning to recognize what has long been recognized in England-that any statutory code of procedure which undertakes to regulate all the delays of practice in courts of justice is liable itself to become the subject of technical construction, thus leading to the miscarriage of justice. Some of the most technical decisions which have startled our courts in recent years have been rendered in States that have long had the so-called reform procedure on their statute books. 68436-17-VOL VII- -38 |