In the teaching of this school and at Cambridge it is in no danger of being undervalued.Mr.Bigelow here and Mr.Ames and Mr.Thayer there have made important contributions which will not be forgotten, and in England the recent history of early English law by Sir Frederick Pollock and Mr.Maitland has lent the subject an almost deceptive charm.We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present.I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them.As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made.In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost.We learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect.
There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name.I mean the study of what is called jurisprudence.Jurisprudence, as I look at it, is simply law in its most generalized part.Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions.One mark of a great lawyer is that he sees the application of the broadest rules.There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn.
The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant.The same state of mind is shown in all our common digests and textbooks.Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law.
If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy.Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth.I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes.I have illustrated their importance already.If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen's Criminal Law on the subject of possession, and then turning to Pollock and Wright's enlightened book.Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one.The trouble with Austin was that he did not know enough English law.But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock.Sir Frederick Pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models.
The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books.At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law.I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse--the purpose for which Lord Coke recommended Bracton.If that is all that is wanted, the title De Regulis Juris Antiqui can be read in an hour.Iassume that, if it is well to study the Roman Law, it is well to study it as a working system.That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must explained.If any one doubts me, let him read Keller's Der Romische Civil Process und die Actionen, a treatise on the praetor's edict, Muirhead's most interesting Historical Introduction to the Private Law of Rome, and, to give him the best chance, Sohn's admirable Institutes.
No.The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself.The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence;next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.
