Imágenes de páginas
PDF
EPUB

firmly held by the body of lawyers and law teachers as I think it ought to be. I have therefore thought it a fitting, if not needful, aim to inspire on the part of the profession a more thorough appreciation of it. But while I confess to a desire to set forth its excellences, I am not conscious of any inclination to veil its imperfections.

An attempt, proper in oral discourse — at all events one which falls within the plan of these lectures — has been made at popular, or perhaps it were better to say non-technical, treatment of the subjects discussed, and to invest them with their appropriate literary and historical appanages; but always, it will be found, with a serious purpose in view.

It
may

be that the continuous labors of forty years in the profession — twenty on the bench and twenty at the bar — have inclined me to approach and to consider legal questions too slightly on the theoretical and too much on the practical side. This is a general habit with lawyers under the common-law system; but it is a habit which has been characteristic of such lawyers from the beginning, and to which, more than to all other causes, that system owes its distinctive character, its merits as well as its defects.

As the result of studies, reflections, and experience, I have formed upon many of the topics discussed decided opinions, which I have freely expressed. They represent my matured views and convictions. The legal system of England and America is substantially developed, - as fully, I

mean, as it is practicable to develop a system which must necessarily expand with the life and growth of the active communities which it governs and regulates. The pressing want of our substantive law is an authoritative, scientific, and comprehensive arrangement of its vast and scattered materials, - a work which is yet in its formative stages. What has thus far been projected has made but little real advance, and has not always proceeded on the right plan or principles. My judgment is that, for this purpose, our law must be treated as substantially unique and distinctive, and arranged according to its real character, — arranged, so to speak, from within and not from without. Among many professed legal reformers and

speculative writers it seems to be taken for granted that the Roman law will supply all or most of the needed aid and models. This is a radical mistake. Our laws and jurisprudence must be analyzed and resolved into their constituent principles, and these must be arranged according to their own nature and historical development. The resulting arrangement will necessarily be as unique and distinctive as the materials with which it deals, which cannot be recast except to a limited extent in moulds furnished by the Civil or Continental law. A Roman basilica cannot be transformed into a Gothic cathedral. We cannot sever ourselves from our past in respect of our law any more than in respect of our history. We can no more change

the essential character of our legal system and legal institutions than we can change our language, or the traditions, habits, usages, sentiments, and genius of our people. Such a change would be impossible if attempted, and unwise if it were possible. The English and Roman systems are on many points so different in their conceptions, growth, essential character, and scope, as, in my judgment, to predestinate to certain and signal failure any attempt to remodel ours as a whole after the Roman system or any of its modern European adaptations.

The meagre results in this direction of the labors of Austin and his successors, though men of ability and learning, confirm me in this opinion. At all events, they have not produced any comprehensive and systematic analysis and re-arrangement of the corps or body of our laws in a shape ready or fitted for legislative action. They have supplied us with studies and sketches in abundance, but have only partially furnished working plans and detailed specifications. The necessary work has hardly been begun. I feel constrained to say this, although mindful of the influence and value of their labors in arousing the attention of the profession to the defects in our system of laws and jurisprudence and the necessity of amending and improving it. They have given us, indeed, skeleton forms, but these are practically useless unless clothed with flesh and blood, and made vital by legislative breath, — things seemingly yet far off. What

worth there may be in the views on these subjects, and others scarcely less important, presented in this volume, must be left to the thoughtful consideration of the profession, and above all to time and experience to determine.

J. F. D. New York, January, 1894.

« AnteriorContinuar »