THE LAW: Call to Greatness

Can the bubbling lava of this decade’s news be captured by human understanding and shaped into summary that makes plain sense? Can all the vast perplexities, defeats and triumphs of this time—cold war, Korea, emergent nationalism, threat of mutual nuclear destruction, democracy, prosperity, Hungary, Suez—be reduced to some essential theme? It was done last week in the span of 90 minutes in a space 290 ft. long, 68 ft. wide and 90 ft. high, on precisely the right occasion and in the right place for this achievement.

The occasion: a pilgrimage of 3,000 members of the American Bar Association to the A.B.A. convention in London, where lie the roots of English-speaking law. The place: Westminster Hall, 858 years old, turbulent cradle of English order, serene shrine of English liberty. The theme: the rule of law.

The Pageant Unfolds. Into the north end of Westminster Hall the American lawyers thronged for the welcoming ceremonies, many bearing their light meters and cameras, a few doffing ten-gallon hats as they entered, most of them sharp-eyed, serious men, substantial in their communities, practical men who had not forgotten how to be stirred by a great occasion which ennobled their vocation with high purpose.

As conventioners will, they sat and chatted about last night’s parties and this morning’s hangovers. Then suddenly they fell quiet. From the south end of the hall, the legal pageant of Britain began to emerge and debouch onto the stone steps that formed a stage—judges of the High Court of Justice in ermine-trimmed scarlet; Lords of Court of Appeal in black knee breeches and gold-braided gowns; Lord Goddard, 80 years old, Lord Chief Justice, wearing an extra S-shaped band of gold braid. Trainbearers, bearers of the standard and the mace, each entered and took an appointed place. Lord Kilmuir, the Lord High Chancellor, draped amid flowing robes, impassive under a full-bottomed wig, came last.

After the preliminary speech by U.S. Chief Justice Earl Warren in a morning coat, the major themes of the joint conference were laid down in major speeches by Britain’s Lord Kilmuir (who, as David Maxwell Fyfe, was British Home Secretary from 1951-54) and U.S. Attorney General Herbert Brownell Jr.

The Timeless Longing. Kilmuir spoke of the hard-fought past that had led to the “free legal and political systems which are the heritage and pride not only of our two nations but of the Western world, and of all those countries of Asia and Africa that have been nurtured in the noble and fruitful ways of the common law.” He went on to evoke and delineate “a doctrine which we both share with a wider community even than that of the common law … I refer to the doctrine of the law of nature.”

Quoting Lord Bryce. he said: “The law of nature represented to the Romans that which is conformable to reason, to the best side of human nature, to an elevated morality, to practical good sense, to general convenience. It is simple and rational, as opposed to that which is artificial or arbitrary. It is universal, as opposed to that which is local or national. It is superior to all other law because it belongs to mankind as mankind, and is the expression of the purpose of the Deity or of the highest reason of man.”*

Then Kilmuir applied his text: “What we are seeing now in some parts of the world is, I am convinced, a spontaneous expression of that timeless longing, inseparable from the human condition, for justice, for the acceptance and fulfillment of the requirements of natural law, which recognizes that man is born to die and has but a little time to fulfill himself and to care for those to whom he is bound by ties of kinship and love.

“That the young in those countries, blinkered and intellectually constricted from birth, should nevertheless express these needs is, in my belief, yet another manifestation of the workings of the law of nature or, as it became known in medieval times, the law of God.”

When he finished, the Americans first were completely hushed, then they burst into applause.

From Torts to Contracts. In reply, U.S. Attorney General Herbert Brownell, in his Nebraska-with-patina-by-Yale accent, set his eye toward the future. “Together,” he said, “we are committed with the other free peoples to the goal of a worldwide application of principles of justice under law—an inspiration that all men and institutions will be governed by a reasoned law and not by the whim or caprice of any man or group who is not thus restrained.” His was a stirring and eloquent call “for men and peoples skilled in the law” to develop a law of nations (see box) where the emphasis “must shift from torts to contracts,” and “where nations as well as individuals are subject to justice under law.”*

Brownell’s plain words, which he plainly linked with President Eisenhower’s prestige and power, were worthy of Westminster Hall. Just outside the hall there had been the Star Chamber, and it was there that Chief Justice of the Common Pleas Sir Edward Coke (rhymes with book) defied King James I in 1608. “The common law,” Coke cried out, “protecteth the King!” King James shouted back: “A traitorous speech! The King protecteth the law, and not the law the King!” James shook his fist furiously, but Coke stood his ground for the enduring greatness of England. Quod Rex non debet esse sub homine, sed sub Deo et Lege, Coke argued fiercely, meaning that the King himself should be under no man, but under God and the law. Now, in July 1957, the U.S. was issuing another call to greatness. The U.S. was proposing that nations should submit themselves to nothing less than a system of world law based upon the concepts that Lord Kilmuir had so cogently defined.

The Great Tree. Out from Westminster Hall into the mild English summer day streamed the American lawyers, standing about New Palace Yard (called “new” to distinguish William Rufus’ building from Edward the Confessor’s old palace that once stood near by), excitedly discussing the speeches they had heard. Then they dispersed to a week of other meetings, other speeches, other trips to see sights that were variants upon the struggle for rule of law: the Tower of London, where Sir Thomas More, great lawyer and judge, was imprisoned by Henry VIII before his head was cut off, parboiled, and impaled upon a pole on London Bridge for several months for all to see; the Inns of Court, in which were trained not only centuries of English jurists but also six signers of the Declaration of Independence—Edward Rutledge, Thomas Heyward Jr., Thomas Lynch Jr., Arthur Middleton, Thomas M’Kean and William Paca; and finally the sweeping green of Runnymede Meadow, 20 miles west of London, where the embattled barons prevailed upon King John to sign Magna Carta in 1215 (“To no one will we sell, to no one will we deny, or delay, right or justice”), where the great tree of the rule of law, as understood by English-speaking peoples, was planted.

There the youthful-appearing (45) new president of the A.B.A., Charles S. Rhynne of Washington D.C., added his piece to that of his seniors: “What do we mean by freedom under law? We mean acknowledgment of the fact that there are moral limitations on civil power. We mean that human beings have rights, as human beings, which are superior to what may be thought to be the rights of the state or of society. It is the truth exemplified in the Magna Carta and in the American Declaration of Independence and Bill of Rights.”

The Wondrous Seedbed. Thus, in one epic week, the members of the A.B.A. paid honor not so much to the seedbed of human liberty (for that lies in each human heart and not in legal systems or in history) but rather to the seedbed of the rule of law, which makes liberty possible in social practice and which holds out promise to all men.

“Our laws are not static, any more than society or human nature is static,” said Britain’s Lord Kilmuir as he set forth the proposition that underlay the panorama. “The roots, well grounded in history and watered by wisdom, are constantly putting out fresh branches and leaves for the comfort of mankind.”

* Not to be confused with the “natural law” of Rousseau and others, which holds roughly that natural law is to be found closest to the “state of nature,” i.e., in primitive societies, leading to the belief that civilized institutions have corrupted the natural goodness of man and that virtue can best be restored by “artificial or arbitrary” systems derived from man’s primitive appetites. Communism and socialism are among the descendants of Rousseau.

* Sharp observers noted that in his plea for the growth of an organic law of nations, Brownell did not once mention the United Nations.