Since I wrote this discourse I have come on a very good example of the
way in which tradition not only overrides rational policy, but overrides
it after first having been misunderstood and having been given a new and
broader scope than it had when it had a meaning. It is the settled law
of England that a material alteration of a written contract by a party
avoids it as against him. The doctrine is contrary to the general
tendency of the law. We do not tell a jury that if a man ever has lied
in one particular he is to be presumed to lie in all. Even if a man has
tried to defraud, it seems no sufficient reason for preventing him
from proving the truth. Objections of like nature in general go to the
weight, not to the admissibility, of evidence. Moreover, this rule is
irrespective of fraud, and is not confined to evidence. It is not merely
that you cannot use the writing, but that the contract is at an end.
What does this mean? The existence of a written contract depends on
the fact that the offerer and offeree have interchanged their written
expressions, not on the continued existence of those expressions. But in
the case of a bond, the primitive notion was different. The contract was
inseparable from the parchment. If a stranger destroyed it, or tore off
the seal, or altered it, the obligee count not recover, however free
from fault, because the defendant's contract, that is, the actual
tangible bond which he had sealed, could not be produced in the form in
which it bound him. About a hundred years ago Lord Kenyon undertook to
use his reason on the tradition, as he sometimes did to the detriment of
the law, and, not understanding it, said he could see no reason why what
was true of a bond should not be true of other contracts. His decision
happened to be right, as it concerned a promissory note, where again the
common law regarded the contract as inseparable from the paper on which
it was written, but the reasoning was general, and soon was extended to
other written contracts, and various absurd and unreal grounds of policy
were invented to account for the enlarged rule.
I trust that no one will understand me to be speaking with disrespect
of the law, because I criticise it so freely. I venerate the law, and
especially our system of law, as one of the vastest products of the
human mind. No one knows better than I do the countless number of
great intellects that have spent themselves in making some addition or
improvement, the greatest of which is trifling when compared with the
mighty whole. It has the final title to respect that it exists, that
it is not a Hegelian dream, but a part of the lives of men. But one may
criticise even what one reveres. Law is the business to which my life is
devoted, and I should show less than devotion if I did not do what in me
lies to improve it, and, when I perceive what seems to me the ideal of
its future, if I hesitated to point it out and to press toward it with
all my heart.
Public-domain text, read in full here on John Shaqi.
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