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physical science, unless you have a body of learned teachers; and you cannot have a learned faculty of law unless, like other faculties, they give their lives to their work. The main secret of teaching law, as of all teaching, is what Socrates declared to be the secret of eloquence, understanding your subject; and that requires, as regards any one of the great heads of our law, in the present stage of our science, an enormous and absorbing amount of labor. Consider how vast the material of our law is, and what the subject-matter is which is to be explored, studied, understood, classified, and taught in our schools of law. It lies chiefly in an immense mass of judicial decisions. These, during several centuries, have spelled out in particular instances, and applied to a vast and perpetually shifting variety of situations, certain inherited principles, formulas, and customs, and certain rules and maxims of good sense and of an ever-developing sense of justice. It lies partly, also, in a quantity of legislation.

What does it mean to ascertain and to master, upon any particular topic, the common law? It means to ascertain and master, in that particular part of it, the true outcome of this body of material. In an old subject, like the law of real property, such an inquiry goes far back. In a new one, like constitutional law, not so far; but still, even in that we must search for more than a century, and if we would have à just understanding of some fundamental matters, it means much remoter and collateral investigation. As regards a great part of our law it is not comprehensible, in the sense in which a legal scholar must comprehend his subject, unless something be known, nay, much, of the great volume of English decisions that run back six hundred years to the days of Edward the First, when English legal reporting begins. That is the period which is fixed, in the two noble volumes of "The History of the English Law" just published by the English professors, Sir Frederick Pollock of Oxford and Mr. Maitland of Cambridge, as the end of their labors; viz., the time when legal reporting begins. In giving the reasons for dealing with this as a separate period, they say "so continuous has been our English legal life during the last six centuries, that the law of the later Middle Ages has never been forgotten among us. It has never passed utterly outside the cognisance of our courts and our practising lawyers." Such is the long tradition that finds expression in the law of this very day, and of this place in which we sit. The volumes just mentioned, ending thus six centuries ago, themselves throw light on much

which concerns our own daily practice in the courts; and they indicate the value and importance of much remoter investigation. You remember, perhaps, that the judicial records of England carry us back to the reign of Richard the First in 1194, seven centuries ago, and that there are scattered memorials of earlier judicial proceedings for another century, gathered for the first time by one of the most learned of our brethren in this association, Prof. Melville M. Bigelow.

Much of this vast mass of matter is unprinted, and much is in a foreign tongue. The old records are in Latin. As to the Reports, for the first two hundred and fifty years after reporting begins, it is all in the Anglo-French of the Year-Books, and mostly in an ill-edited and often inaccurate form. To all these sources of difficulty must be added the generally brief and often very uninstructive shape of the report itself. A few of the earlier Year-Books have been edited in thorough and scholarly fashion, accompanied by a translation and illustrations from the manuscript records. But most of them are in a condition which makes research very difficult. The learned historians just quoted have said that "the first and indispensable preliminary to a better legal history than we have of the later Middle Ages is a new, a complete, a tolerable edition of the Year-Books. They should be our glory, for no other country has anything like them; they are our disgrace, for no other country would have so neglected them." The glory and disgrace are ours also, for English law is ours. Efforts on both sides of the water to accomplish this result have as yet failed; but they should succeed, and they will suceeed. I wish that my voice might reach some one that would help in securing that important result. It would bring down the blessing of legal scholars now and hereafter. After the Year-Books, come three centuries and a half of reported cases in England; and one of these centuries, more or less, includes the multitudinous reports of our own country and of the English colonies, which continue to pour in upon us daily in so copious and ever-increasing a flood.

Now, will it be said, perhaps, that in bringing forward for study all this mass of material, past, present, and daily increasing at so vast a rate, I am recommending an impossibility and an absurdity? No, I am not; I speak as one who has seen it tried. It is not only practicable, but a necessary preliminary for first-rate work. One or two things must be observed here. Of course no one man can thus explore all our law. But some single thing or several con

nected things he may; and every man who proposes really to understand any topic, to put himself in a position to explain it to others, or to restate it with exactness, must search out that one topic through all its development. Such an investigation calls for much time, patience, and labor, but it brings an abundant harvest in the illumination of every corner of the subject. Another thing is to be noticed. Not all our law runs back through all this period. This great living trunk of the common law sends out shoots all along its length. Some subjects, like the law of real property, crimes, pleading, and the jury go very far back; others, like the learning of Perpetuities or the Statute of Frauds, not so very far; and others still, like our American Constitutional Law, the learning of the Factors' Acts, of injuries to fellow-servants and other parts of the law of torts, are modern, and perhaps very recent. But be the subject old or new, or much or little, every man in his own field of study must explore this mass of material, — viz., all the decided cases relating to it. — if he would thoroughly understand his subject.

Before I pass on, let me say, as if in a parenthesis, a word or two more about the Year-Books. These great repositories of our medieval law have been the subject of many cheap and foolish observations, as to their mustiness and mouldiness; but never, so far as I know, from persons who had any considerable acquaintance with them. It has dwarfed and hurt our law that research has usually stopped short about three centuries back; as to what went before, has been the fashion to accept Coke as the epitome, or to take the summaries in the Abridgments. Back of Coke, these ill-printed, unedited, untranslated folios, the Year-Books, have stood like a wall, repelling for most men any further search. But not all scholars have been deterred; and those who have gone through these volumes have found a rich reward. Amidst their quaint and antiquated learning is found the key to many a modern anomaly; and the reader observes with delight the vigorous growth of the law from age to age by just the same processes which work in it to-day in our latest reports. There, as well as here, together with much that is petty and narrow, one remarks not only welldigested learning and thoughtful conservatism giving its reasons, but also growth, the vigor of original thought, liberal ideas, and the breaking out of what we call the modern spirit.

Coming back to the task of the student of our law, it spreads far beyond what I have yet set forth; it has been wisely said that

if a man would know any one thing, he must know more than one. And so our system of law must be compared with others; its characteristics only come out when this is done. As to the examination of medieval and modern continental law, we have hardly made a beginning. When we trace our law far back, the only possible comparison with anything long-lived and continuous is with the Roman law. If any one would remind himself of the flood of light that may come from such comparisons, let him recall the brilliant work of Pollock's predecessor at Oxford, Sir Henry Maine, in his great book on Ancient Law. That is the best use of the Roman law for us, as a mirror to reflect light upon our own, a tool to unlock its secrets. And so the recent learned historians of our law have used it. In writing of the English system of writs and forms of action, for instance, they put meaning into the whole matter in pointing out that all this, beginning in the middle of the twelfth century, finds a parallel in Rome" at a remote stage of Roman history. We call it distinctively English; but it is also in a certain sense very Roman. While the other nations of Western Europe were beginning to adopt as their own the ultimate results of Roman legal history, England was unconsciously reproducing that history. "

Of the value of such comparative studies, and their immense power to lift the different subjects of our law into a clear and animating light, no competent person who has once profited by them. can ever doubt. But, again, observe what this means. It means adding to the wide and difficult researches already marked out another great field of investigation. If it be said that our teacher of English law may profit by the labor of others, and has only to read his "Ancient Law," and his "History of English Law," I reply that the field is still largely unexplored; and, furthermore, that, for the scholar, such books are helps and guides for his own research, and not substitutes for it.

So much for this head of what I have to say. Over these vast fields the competent teacher of law must carefully and minutely explore the history and development of his subject. I set down first this thorough historical and chronological exploration, because in this lie hidden the explanation of what is most troublesome in our law, and because in this is found the stimulus that most feeds the enthusiasm and enriches the thought and the instruction of the teacher. The dullest topics kindle when touched with the light of historical research, and the most recondite and technical

fall into the order of common experience and rational thought. Sir Henry Maine's book, like that of Darwin in a different sphere, at about the same time, created an epoch. Such books have made it impossible for the law student ever again to be content with the sort of food that fed his fathers, with that "disorderly mass of crabbed pedantry," for instance, as our recent historians of the law have justly called it, "that Coke poured forth as institutes of English law." Never again can he receive the spirit of bondage that once bent itself to teach or to study the law through such a medium.1

And now comes another labor for the legal scholar. After such researches as I have indicated, in any part of the law, the outcome of it is certain to be the necessity of restating the subject in hand. When things have once been thus explored and traced, many a hitherto unobserved relationship of ideas come to light, many an old one vanishes, many a new explanation of current doctrines is suggested and many a disentangling of confused topics, many a clearing away of ambiguities, of false theories, of out worn and unintelligible phraseology. There is no such dissolver and rationalizer of technicality as this. A new order arises. And so when the work of exploration has been gone over, there comes the time for producing and publishing the results of it. Admirable work of this sort, and a good bulk of it, has already been done, work that is certain to be of inestimable value to our profession. In some instances it is but little known as yet; in others, it appears already in our handbooks on both sides of the ocean, and in the decisions of the courts.


The publishing of these results by competent persons is one of the chief benefits which we may expect from the thorough and scientific teaching of law at the universities. In no respect can more be done to aid our courts in their great and diffcult task. There are many useful handbooks for office use and reference, and some excellent ones. But the number of really good English law treatises good, I mean, when measured by a high standard is very few indeed. They improve; and yet, to a great extent to-day, the writers and publishers of lawbooks are abusing the confidence of the profession, and practising upon its necessities.

' In saying of Coke what is just quoted, it will be observed that he is dealt with as a writer of institutes of the law. Of course that great name stands for much else in our law and our constitutional history,—for much which is great and good and never to be forgotten.

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