the path of the law-第6章
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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。
Perhaps I have said enough to show the part which the study of history
necessarily plays in the intelligent study of the law as it is today。
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 discoursethe
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。 I
assume 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 sever
