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LEARNING AND SCIENCE *
SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL
ASSOCIATION IN HONOR OF PROFESSOR
C. C. LANGDELL, JUNE 25, 1895
MR. PRESIDENT AND GENTLEMEN OF THE ASSOCIA
As most of those here have graduated from the Law School within the last twenty-five years, I know that I am in the presence of very learned men. I
For my own part, lately my thoughts have been turned to
“old, unhappy, far-off things, And battles long ago";
and when once the ghosts of the dead fifers of thirty years since begin to play in my head, the laws are silent. And yet as I look around me, I think to myself, like Correggio, “I too am, or at least have been, a pedagogue." And as such I will venture a a reflection.
Learning, my learned brethren, is a very good thing. I should be the last to undervalue it, having done my share of quotation from the Year Books. But it is liable to lead us astray. The law, so far as it depends on learning, is indeed, as it has been called, the government of the living by the dead. To a very considerable extent no doubt it is inevitable that the living should be so governed. The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There is, too, a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.
* From Speeches (1913), Little, Brown, & Co.
I hope that the time is coming when this thought will bear fruit. An ideal system of law should draw its postulates and its legislative justification from science. As it is now, we rely upon tradition, or vague sentiment, or the fact that we never thought of any other way of doing things, as our only warrant for rules which we enforce with as much confidence as if they embodied revealed wisdom. Who here can give reasons of any different kind for believing that half the criminal law does not do more harm than good? Our forms of contract, instead of being made once for all, like a yacht, on lines of least resistance, are accidental relics of early notions, concerning which the learned dispute. How much has reason had to do in deciding how far, if at all, it is expedient for the State to meddle with the domestic relations? And so I might go on through the whole law.
The Italians have begun to work upon the notion that the foundations of the law ought to be scientific, and, if our civilization does not collapse, I feel pretty sure that the regiment or division that follows us
will carry that flag. Our own word seems the last always; yet the change of emphasis from an argument in Plowden to one in the time of Lord Ellenborough, or even from that to one in our own day, is as marked as the difference between Cowley's poetry and Shelley's. Other changes as great will happen. And so the eternal procession moves on, we in the front for the moment; and, stretching away against the unattainable sky, the black spearheads of the army that has been passing in unbroken line already for near a thousand years.
Ar the present day executors and administrators hold the assets of the estate in a fiduciary capacity. Their rights and liabilities in respect of the fund in their hands, are very like those of trustees. But this way of regarding them is somewhat modern. I wish to call attention to several changes in the law which have taken place at different times and without reference to each other, for the purpose of suggesting that they are witnesses of an older condition of things in which the executor received his testator's assets in his own right. As usually is the case with regard to a collection of doctrines of which one seeks to show that they point to a more general but forgotten principle, there can be found a plausible separate explanation for each or for most of them, which some, no doubt, will regard as the last word to be said upon the matter.
I have shown elsewhere that originally the only person liable to be sued for the debts of the deceased, if they were disputed and had not passed to judgment in the debtor's lifetime, was the heir. In Glanvill's
* Harvard Law Review, Vol. IX, 42. (1895.)
1 Early English Equity, I Law Quart. Rev. 165. The Common Law, 348. Bracton 407b, 61, 98a, 1012, 113b. The article referred to in the Law Quarterly Review shows the origin and early functions of the executor. It is not necessary to go into them here.
time, if the effects of the ancestor were not sufficient for the payment of his debts the heir was bound to make up the deficiency out of his own property.? In the case of debts to the king, this liability continued as late as Edward III., royalty like religion being a conservator of archaisms. The unlimited liability was not peculiar to England. While it continued we may conjecture with some confidence that a judgment against the heir was not confined to the property which came to him from his ancestor, and that such property belonged to him outright. At a later date, M. Viollet tells us, the French customary law borrowed the benefit of inventory from the Roman law of Justinian. The same process had taken place in England before Bracton wrote. But in the earliest sources it looks as if the limitation of liability was worked out by a limitation of the amount of the judgment, not by confining the judgment to a particular fund."
2 “Si vero non sufficiunt res defuncti ad debita persolvenda, tunc quidem haeres ejus defectum ipsum de suo tenetur adimplere: ita dico si habuerit aetatem haeres ipse.” Glanvill, Lib. 7, C. 8. Regiam Majestatem, Book 2, C. 39, $ 3.
2 Rot. Parl. 240, pl. 35. St. 3 Ed. I., C. 19. 4 Ass. Jerus., Bourgeois, C. cxciii. 2 Beugnot, 130. Paul Viollet, Hist. du Droit Franç., 2d ed. 829.
5 Viollet, op. cit. The Common Law, 347, 348. “Haeres autem defuncti tenebitur ad debita preadecessoris sui acquietanda eatenus quatenus ad ipsum pervenerit, sci. de haereditate defuncti, et non ultra," etc. Bracton, 61 Q. “Notandum tamen est, quod nullus de antecessoris debito tenetur respondere ultra valorem huius, quod de eius hereditate dignoscitur possidere.” Somma, Lib. 2, C. 22, 5, in 7 Ludewig, Reliq. Manuscript, 308, 309. Grand Coustum. C. 88. Compare also St. Westm. II. (13 Ed. I.), C. 19, as to the liability of the