Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/14

terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort toward improvement; for in any closely reasoned problem, whether legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression.^[1] As a matter of fact, however, the above mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions.

That this is so may appear in some measure from the discussion to follow.

1. In this connection, the words of one of the great masters of the common law are significant. In his notable Preliminary Treatise on Evidence (1898), p. 190, Professor James Bradley Thayer said:
   "As our law develops it becomes more and more important to give definiteness to its phraseology; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas, discriminations, and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation that clearness of thought will not help us powerfully in grasping it. If terms in common legal use are used exactly, it is well to know it; if they are used inexactly, it is well to know that, and to remark just how they are used."
   Perhaps the most characteristic feature of this author's great constructive contribution to the law of evidence is his constant insistence on the need for clarifying our legal terminology, and making careful "discriminations" between conceptions and terms that are constantly being treated as if they were one and the same. See, e.g., Ibid., pp. vii, 183, 189–190, 278, 306, 351, 355, 390–393. How great the influence of those discriminations has been is well known to all students of the law of evidence.
   The comparatively recent remarks of Professor John Chipman Gray, in his Nature and Sources of the Law (1909), Pref. p. viii, are also to the point:
   "The student of Jurisprudence is at times troubled by the thought that he is dealing not with things, but with words, that he is busy with the shape and size of counters in a game of logomachy, but when he fully realizes how these words have been passed and are still being passed as money, not only by fools and on fools, but by and on some of the acutest minds, he feels that there is work worthy of being done, if only it can be done worthily."
   No less significant and suggestive is the recent and charactistic utterance of one of the greatest jurists of our time, Mr. Justice Holmes. In Hyde v. United States (1911), 225 U. S., 347, 391, the learned judge very aptly remarked: "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis."
   See also, Field, J., in Morgan v. Louisiana (1876), 93 U. S., 217, 223, and Peckham. J. in Phoenix Ins. Co. v. Tennessee (1895), 161 U. S., 174, 177, 178.