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INTRODUCTION TO THE GENERAL

SURVEY

BY EUROPEAN AUTHORS IN THE CONTINENTAL

LEGAL HISTORICAL SERIES*

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THE authors whose writings are offered in this volume and Series do not need introduction. They introduce the man who has the honor for a moment to associate his name with theirs. But a few words from a veteran may catch the attention of those who still are in the school of the soldier and have not seen their first fight.

The philosophers teach us that an idea is the first step toward an act. Beliefs, so far as they bear upon the attainment of a wish (as most beliefs do), lead in the first place to a social attitude, and later to combined social action, that is, to law. Hence, ever since it has existed, the law expressed what men most strongly have believed and desired. And, as the beliefs and desires of the Western world have changed and developed a good deal since the days of the Twelve Tables and the Law of the Salian Franks, I thought it dangerously near a platitude to say, a dozen years ago, that the law might be regarded as a great anthropological document. But, as a gentleman prominent at the bar of one of the States professed * Little, Brown & Co., Boston. 1913.

difficulty in understanding what I meant, it is evident that the rudiments need eternal repetition. Any man who is interested in ideas needs only the suggestion that I have made to realize that the history of the law is the embryology of a most important set of ideas, and perhaps more than any other history tells the story of a race.

The trouble with general or literary historical works is that they deal with premises or conclusions that are both unquantified. We readily admit their assumption that such and such a previous fact tended to produce such and such a later one; but how much of the first would be necessary to produce how much of the last, and how much there actually was of either, we are not told. On the other hand, in the history of philosophy and economics we can say with more confidence that we trace cause and effect. The one shows the inward bond between the successive stages of the thought of man; the other the sequence of outward events that have governed his action and (some believe) really have determined his thought. At all events the latter fits the former as the outside of a cathedral fits the inside, — although there are gargoyles and Mephistopheles without and angels and saints within.

There is no place for the history of law in this metaphor; but, in plain prose, it is midway between the other two. As we follow it down from century to century, we see logic at work attempting to develop the concrete cases given in experience into universal rules, and the struggle for life between the attempted generalizations and other competing forms. We watch the metamorphosis of the simple into the complex. We see changes of environment producing new institutions, and new taking the place of old beliefs and wants. We observe the illustrations, as striking here as in poetry or music, of the universal change of emphasis that each century brings along. An argument that would have prevailed in Plowden's time, and perhaps, would have raised a difficulty to be got rid of in Lord Ellenborough's, now would be answered only with a smile.

The most obvious moral of what I have said is that the law will furnish philosophical food to philosophical minds. The surgeon of my regiment in the War of Secession used to divide the world into external and internal men. The distinction is as old as Plato. For I take it that what makes the Banquet immortal is not the divine gossip about Aristophanes and Alcibiades and Socrates, but that it and some of the Dialogues are the first articulate expression that has come down to us of what internal men believe, that ideas are more interesting than things. To the internal men, I need say no more to recommend the theme of this and the following volumes. But the profit is not confined to them. When a man has a working knowledge of his business, he can spend his leisure better than in reading all the reported cases he has time for. They are apt to be only the small change of legal thought. They represent the compromise of the moment between tradition and precedent on the one side and the free conception of the desirable on the other. It is worth while, even with the most mundane ideals, to get as big a grasp of one's subject as one can. And therefore it is worth while to do what we can to enlighten our notions of the desirable and to understand the precedents by which we are constrained. The history of the law stands alongside of sociology and economics as a necessary tool if one is to practise law in a large way.

If what I have said is granted, not much argument is needed to show that a survey of the general development of Continental law is necessary to understand our own. The relationship is too well established to need new proofs, although I believe that there still are standard treatises that ascribe trusts to Rome and ignore the Salman. Indeed, I am not sure that the best way of proving the need of this Series would not be to present a series of Elegant Extracts from text-books and decisions.

I can but envy the felicity of the generation to whom it is made so easy to see their subject as a whole. When I began, the law presented itself as a ragbag of details. The best approach that I found to general views on the historical side was the first volume of Spence's Equitable Jurisdiction, and, on the practical, Walker's American Law. The only philosophy within reach was Austin's Jurisprudence. It was not without anguish that one asked oneself whether the subject was worthy of the interest of an intelligent man. One saw people whom one respected and admired leaving the study because they thought it narrowed the mind; for which they had the authority of Burke. It required blind faith — faith that could not yet find the formula of justification for itself. The works of foreign scholarship were then inaccessible. One had to spend long days of groping, with the inward fear that if one only knew where to look, one would find that one's difficulties and questions were fifty years behind the times. Now, a man can start with the knowledge that he starts fair that the best results of Europe, as well as of this country and England, are before him. And those results are so illuminating that diligence alone is enough to give him an understanding of how the law came to be what it is, of its broadest generalizations, and (so far as any one yet can state them) of the reasons to be offered for continuing it in its present form or for desiring a change.

WASHINGTON, D.C., November 28, 1911.

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