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APPENDIX.

ANNUAL ADDRESS OF THE PRESIDENT.

BY GEORGE DONWORTH, OF SEATTLE.

Gentlemen of the Association:

The Bar of Washington is to be congratulated upon the auspicious circumstances under which we meet on this occasion. Since the Association last met, the first decade in the history of this state has been completed. A political community whose constitution and laws have been, in the highest measure, the work of lawyers, and whose marked success and advancement in times of depression as well as in times of prosperity are largely attributable to the public spirit and ability of its Bench and Bar, is certainly an object of the highest congratulation on the part of such an Association as this. As we look back upon ten years of effort, we may say with truth, that in this commonwealth since its birth, life, liberty and property have been wisely and safely protected, and that laws have been so enacted and so interpreted and applied as to guarantee to every citizen that measure of liberty which is consistent with the proper safety of the state, and to foster the development of the great resources which nature has so lavishly placed within the grasp of our people.

It has been my pleasure, on several occasions, to witness the gathering of the Washington pioneers, an association of men and women, gray-haired and venerable, to whose perseverance, indomitable energy and dauntless courage were due the first coming of civilization to these shores and the subduing of the forest and desert to become the responsive servants of the hand and mind of

man.

These pioneers were a rugged, manly people and we honor

them for the great work which they have done and for the great qualities of brain and brawn without which that work could not have been accomplished. The annual gathering of these advance guards of civilization, whose numbers are rapidly dwindling, never fails to suggest the thought that we, too, are pioneers — the pioneers of the greater commonwealth which is to come after us and whose success, advancement and permanent prosperity depend upon our doing. If it be said of us of the present day that we have fitly continued the noble work begun by the men and women of forty and fifty years ago, we shall have received a commendation that is indeed great.

We begin the second decade with few idlers within the confines of our state. In shop and mill, on the farm and in the mine, in the arts and in the professions, all are at work. Due reward follows effort in every department of labor. Prosperity prevails over the length and breadth of Washington. Under such circumstances, we may confidently trust that the Evergreen State will continue its onward advancement, becoming, before many years, one of the leaders in the great family of the Union.

It has been the custom at previous meetings of the Association for the President, in his annual address, to discuss some recent legislation or some tendency or movement of a legal character, which to his mind is worthy of public comment. In compliance with this time-honored custom, I desire to present some views concerning a tendency which appears to me to be gaining ground in the decisions of all courts, and which I believe is introducing an element of uncertainty into the law that would better be avoided. I refer to the inclination noticeable in very many published cases, towards the rendering of a decision based upon the court's idea of the right of the matter rather than upon the law of the case; in other words, towards trying to do justice or bring about a right result, regardless of the effect of the case, when viewed as a prec. edent, upon the general state of the law. It is true that courts are established to promote the administration of justice and no higher end can be accomplished than so to administer judicial powers that right will be done in every legal proceeding. But centuries of experience have shown that the attainment of abstract justice in all cases is impossible, and that the adherence to fixed

rules and established precedents is the method best calculated to reach a just conclusion in the vast majority of cases. In a despotic government, where all power, legislative, executive and judicial, is vested in the monarch and exercised by him directly or through ministers or so called judges, precedent is not regarded, because the theory is such that the magistrate should not be hampered by any rules whatever in announcing the apparent justice of the particular case. He applies the moral law, as he sees it, to the facts before him. Anglo-Saxon jurisprudence, however, is founded on an entirely opposite theory. With us the question is not, what is good morals, but what is the law. True, we believe that the law has been so framed that it is in accord with moral principles, but we assume that morality or justice will, in the long run, be best subserved by adhering to the law, though in a particular case, law and good morals seem to drift apart. To ascertain the law, recourse is had to the decisions in similar cases, and the theory at least is, that the case at bar will be decided in the same way that other cases of like nature have been decided before. A sytem of laws founded, as ours is, on the following of precedent, is in itself an admission of the frailty of the human mind, and of the difficulty of arriving at a just result in each particular case. If the human mind were infallible, if it could always be trusted clearly to see the justice of the case and apply it, the investigation of precedent would be of no value. No doubt the original reason why precedent acquired that controlling force which it has always had in Ango-Saxon jurisprudence is that a decision once made becomes public property and the people at large are presumed to adopt it and conform their future conduct to it, so that it is incorporated into the customs of the country. Precedent and custom, working together, have been the ground work of our law. When Tennyson spoke of

"The lawless science of our law,

That codeless myriad of precedent,
That wilderness of single instances,"

he was doubtless influenced by the definition of the common law given by Bentham, not an impartial critic, who called it "chaos tempered by Fisher's Digest."

Whatever may be or may have been the difficulty of ascertaining the precedents applicable to the particular case in hand, the En

glish courts have followed the rule of stare decisis much more steadily than is now the practise in America, and it is established there that the House of Lords will not over-rule a case decided by it, but will adhere to the law as once announced until an act of par. liament decrees otherwise. The opposite tendency here is shown by the fact that a change in the personnel of the bench of the Supreme Court may, (as in the legal tender cases and in other cases which I will mention later) effect a change in the construction of the Federal Constitution, which if the membership had remained the same, could have been brought about only by the concurrent action of two-thirds of both houses of Congress and the legislatures of three-fourths of the states.

The difficulties of the legal profession are increased by a habit of the courts of ignoring a former decision in deciding a later case involving the same point, making no reference to the earlier case either by way of distinguishing or overruling it. For several years the profession may be left in doubt as to what authority the case so disregarded is entitled to recieve, and after the lapse of years, the same court may tell us that the former case was entirely overruled, and had not been regarded as law for several years, or may, on the other hand, refer to it as having been recognized as law ever since its rendition and inform us that it was in no wise modified or overruled by later decisions. No doubt it surprises a judge when he leaves the bench and resumes his practice at the Bar to find how much harder it is to discover the law as a lawyer than as a judge. A story is told of a judge who sat in one of the city courts of New York during the Tweed regime. A political friend of the judge was one of the parties in a cause tried before him. The attorney for the opposite party asked a question of a witness and the judge quickly informed the attorney that no such question could be asked in his court. The lawyer assuming that the objection was to the form of the question, re-framed and propounded it again, meeting with the same objection on the part of the judge. Seeing that the subject matter of the question was what the judge objected to, the discomfited advocate addressed the court in support of the admissibility of the testimony. After the argument had proceeded some time, the court interrupted him with the remark, "Very well, young man, you may go ahead and ask

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