第26章

The rule applies to cases where neither tender nor actual damage is established or pretended.The law has shaped its judgments upon the fictitious assumption that a surety, who has probably lain awake at nights for fear that payment may some day be demanded, has in truth been smarting under the repressed desire to force an unwelcome payment on a reluctant or capricious creditor.The extended period has gone by; the surety has made no move, has not even troubled himself to inquire; yet he is held to be released on the theory that were it not for the extension, of which he knew nothing, and by which his conduct could not have been controlled, he would have come forward voluntarily with a tender of the debt.Such rules are survivals of the days when commercial dealings were simpler, when surety companies were unknown, when sureties were commonly generous friends whose confidence had been abused, and when the main effort of the courts seems to have been to find some plausible excuse for letting them out of their engagements.Already I see some signs of a change of spirit in decisions of recent dates.12 I think we may well ask ourselves whether courts are not under a duty to go farther, and place this branch of the law upon a basis more consistent with the realities of business experience and the moralities of life.

It is another rule of the common law that a parol agreement, though subsequently made, is ineffective to vary or discharge a contract under seal.13 In days when seals counted for a good deal, there may have been some reason in this recognition of a mystical solemnity.In our day, when the perfunctory initials "L.S." have replaced the heraldic devices, the law is conscious of its own absurdity when it preserves the rubrics of a vanished era.14 Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule, to riddle it with exceptions and by distinctions reduce it to a shadow.15 A recent case suggests that timidity, and not reverence, has postponed the hour of dissolution.16 The law will have cause for gratitude to the deliverer who will strike the fatal blow.

I have drawn illustrations from the field of substantive law.The law of evidence and generally the whole subject of procedure supply fields where change may properly be made with a freedom even greater.The considerations of policy that dictate adherence to existing rules where substantive rights are involved, apply with diminished force when it is a question of the law of remedies.Let me take an illustration from the law of evidence.

A man is prosecuted for rape.His defense is that the woman consented.

He may show that her reputation for chastity is bad.He may not show specific, even though repeated, acts of unchastity with another man or other men.17 The one thing that any sensible trier of the facts would wish to know above all others in estimating the truth of his defense is held by an inflexible rule to be something that must be excluded from the consideration of the jury.Even though the woman takes the stand herself, the defendant is not greatly helped, for though he may then cross-examine her about other acts, he is concluded by her answer.Undoubtedly a judge should exercise a certain discretion in the admission of such evidence, should exclude it if too remote, and should be prompt by granting a continuance or otherwise to obviate any hardship resulting from surprise.That is not the effect of the present rule.The evidence is excluded altogether and always.Some courts, indeed, have taken a different view, but their number unfortunately is small.Here, as in many other branches of the law of evidence, we see an exaggerated reliance upon general reputation as a test for the ascertainment of the character of litigants or witnesses.Such a faith is a survival of more simple times.

It was justified in days when men lived in small communities.Perhaps it has some justification even now in rural districts.In the life of great cities, it has made evidence of character a farce.Here, as in many other branches of adjective law, a spirit of realism should bring about a harmony between present rules and present needs.