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date a statute to have a meaning which in the opinion of the court the words did not bear, I suppose that the declaratory act would have no effect upon intervening transactions unless in a place and case where retrospective legislation was allowed. As retrospective legislation it would not work by way of construction except in form.
So in the case of a will. It is true that the testator is a despot, within limits, over his property, but he is required by statute to express his commands in writing, and that means that his words must be sufficient for the purpose when taken in the sense in which they would be used by the normal speaker of English under his circumstances.
I may add that I think we should carry the external principle of construction even further than I have indicated. I do not suppose that you could prove, for purposes of construction as distinguished from avoidance, an oral declaration or even an agreement that words in a dispositive instrument making sense as they stand should have a different meaning from the common one; for instance, that the parties to a contract orally agreed that when they wrote five hundred feet it should mean one hundred inches, or at Bunker Hill Monument should signify Old South Church. On the other hand, when you have the security of a local or class custom or habit of speech, it may be presumed that the writer conforms to the usage of his place or class when that is what a normal person in his situation would do.) But these cases
4 Goode v. Riley, 153 Mass. 585, 586.
are remote from the point of theory upon which I started to speak.
It may be, after all, that the matter is one in which the important thing, the law, is settled, and different people will account for it by such theory as pleases them best, as in the ancient controversy whether the finder of a thing which had been thrown away by the owner got a title in privity by gift, or a new title by abandonment. That he got a title no one denied. But although practical men generally prefer to leave their major premises inarticulate, yet even for practical purposes theory generally turns out the most important thing in the end. I am far from saying that it might not make a difference in the old question to which I have referred.
LAW IN SCIENCE AND SCIENCE IN LAW *
THE law of fashion is a law of life. The crest of the wave of human interest is always moving, and it is enough to know that the depth was greatest in respect of a certain feature or style in literature or music or painting a hundred years ago to be sure that at that point it no longer is so profound. I should draw the conclusion that artists and poets, instead of troubling themselves about the eternal, had better be satisfied if they can stir the feelings of a generation, but that is not my theme. It is more to my point to mention that what I have said about art is true within the limits of the possible in matters of the intellect. What do we mean when we talk about explaining a thing? A hundred years ago men explained any part of the universe by showing its fitness for certain ends, and demonstrating what they conceived to be its final cause according to a providential scheme. In our less theological and more scientific day, we explain an object by tracing the order and process of its growth and development from a starting point assumed as given.
This process of historical explanation has been applied to the matter of our profession, especially of recent years, with great success, and with so much eagerness, and with such a feeling that when you had the true historic dogma you had the last word not only in the present but for the immediate future, that I have felt warranted heretofore in throwing out the caution that continuity with the past is only a necessity and not a duty. As soon as a legislature is able to imagine abolishing the requirement of a consideration for a simple contract, it is at perfect liberty to abolish it, if it thinks it wise to do so, without the slightest regard to continuity with the past. That continuity simply limits the possibilities of our imagination, and settles the terms in which we shall be compelled to think.
* An Address delivered by Mr. Justice Holmes before the New York State Bar Association on January 17, 1899. — Harvard Law Review, Vol. XII., 443.
Historical explanation has two directions or aspects, one practical and the other abstractly scientific. I by no means share that morality which finds in a remoter practice the justification of philosophy and science. I do not believe that we must justify our pursuits by the motive of social well-being. If we
we have satisfied ourselves that our pursuits are good for society, or at least not bad for it, I think that science, like art, may be pursued for the pleasure of the pursuit and of its fruits, as an end in itself. I somewhat sympathize with the Cambridge mathematician's praise of his theorem, “The best of it all is that it can never by any possibility be made of the slightest use to anybody for anything." I think it one of the glories of man that he does not sow seed, and weave cloth, and produce all the other economic means simply to sustain and multiply other sowers and weavers that they in their turn may multiply, and so ad infinitum, but that on the contrary he devotès a certain part of his economic means to uneconomic ends - -ends, too, which he finds in himself and not elsewhere. After the production of 'food and cloth has gone on a certain time, he stops producing and goes to the play, or he paints a picture, or asks unanswerable questions about the universe, and thus delightfully consumes a part of the world's food and clothing, while he idles away the only hours that fully account for themselves.
Thinking in this way, you readily will understand that I do not consider the student of the history of legal doctrine bound to have a practical end in view. It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas. The study pursued for such ends becomes science in the strictest sense. Who could fail to be interested in the transition through the priest's test of truth, the miracle of the ordeal, and the soldier's, the battle of the duel, to the democratic verdict of the jury! Perhaps I might add, in view of the great increase of jurywaived cases, a later transition yet to the commer
1 I do not forget that the church abolished the ordeal.