American Judge and Judicial Philosopher
Learned Hand, fully Billings Learned Hand
American Judge and Judicial Philosopher
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.
The mid-day sun is too much for most eyes; one is dazzled even with its reflection. Be careful that too broad and high an aim does not paralyze your effort and clog your springs of action.
What seems fair enough against a squalid huckster of bad liquor may take on a different face, if used by government determined to suppress political opposition under the guise of sedition.
Like John Stuart Mill, he would often begin by stating the other side better than its advocate had stated it himself.
The public needs the equivalent of Chevrolets as well as Cadillacs.
What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart.
My vote is one of the most unimportant acts of my life; if I were to acquaint myself with the matters on which it ought really to depend, if I were to try to get a judgment on which I was willing to risk affairs of even the smallest moment, I should be doing nothing else, and that seems a fatuous conclusion to a fatuous undertaking.
The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.
When I hear so much impatient and irritable complaint, so much readiness to replace what we have by guardians for us all, those supermen, evoked somewhere from the clouds, whom none have seen and none are ready to name, I lapse into a dream... I see children playing on the grass... they are restive and quarrelsome; they cannot agree to any common plan; their play annoys them; it goes poorly. And one says, let us make Jack the master; Jack knows all about it; Jack will tell us what each is to do and we shall all agree. But Jack is like all the rest; Helen is discontented with her part and Henry with his, and soon they fall again into their old state. No, the children must learn to play by themselves; there is no Jack the master. And in the end slowly and with infinite disappointment they do learn a little; they learn to forbear, to reckon with anther, accept a little where they wanted much, to live and let live, to yield when they must yield; perhaps, we may hope, not to take all they can. But the condition is that they shall be willing at least to listen to one another, to get the habit of pooling their wishes. Somehow or other they must do this, if the play is to go on; maybe it will not, but there is no Jack, in or out of the box, who can come to straighten the game.
For, when all is said, as my friend George Rublee likes to put it, the only success is to be a success as a person; and it is still not too late for that.
No doubt one may quote history to support any cause, as the devil quotes scripture; but modern history is not a very satisfactory side-arm in political polemics; it grows less and less so.
They taught me, not by precept, but by example, that nothing is more commendable, and more fair, than that a man should lay aside all else, and seek truth; not to preach what he might find; and surely not to try to make his views prevail; but, like Lessing, to find his satisfaction in the search itself.
While I should be the last to say that the making of a profit was not in itself a pleasure, I hope I should also be one of those to agree that there were other pleasures than making a profit
Here I am an old man in a long nightgown making muffled noises at people who may be no worse than I am.
Often the convictions of one generation are the rejects of the next. That does not deny the possibility that, as time goes on, we shall accumulate some body of valid conclusions. But it does mean that we can achieve only by accumulation that wisdom is to be gained only as we stand upon the shoulders of those who have gone before. Just as in science, we cannot advance except as we take over what we inherit, and in statecraft no generation can safely start at scratch, so personal, basic beliefs must be slowly built from our experience, but also from a study of the experience and conclusions of others.
This is the most miserable of cases, but we must dispose of it as though it had been presented by actual lawyers.
With the courage which only comes of justified self-confidence, he dared to rest his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments. Few lawyers are willing to do this; it is the mark of the most distinguished talent.
How long shall we blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some change.
Over and over again courts have said that there is nothing sinister in so arranging one's affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.
Thou shalt not ration justice.
Words are not pebbles in alien juxtaposition.
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.
Proceed. You have my biased attention.
To be pulled in many opposite ways at once results negatively, but it is not the same thing as to feel no impulse at all. An ass between two bales of hay is said to have died of starvation, but not from indifference.
Yet the whole structure of the common law is an obvious denial of this theory; it stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.