« AnteriorContinuar »
and systematic study of law. When a dozen years ago I emerged, wearied and bewildered, from that rough and fragmentary training of “reading for the bar,” which Professor Dicey so excellently described to us last term, I was advised to turn to Roman law as the best means of impressing some order and proportion of clear ideas on the half-digested mass of facts and formulas which I had acquired. It was from Professor Bryce that I sought counsel as to my reading; his advice was such as it would be bold, if not foolhardy, to give to a man reading for examination purposes; but then I was not going to be examined : and from my following of that advice I date whatever pretensions I may have to competence for taking a philosophical as distinct from a merely empirical view of law and jurisprudence.
It is with no ordinary satisfaction, therefore, that I now embrace the honour of meeting Professor Bryce as a colleague. On the occasions of such meeting, again, another peculiar pleasure awaits me: for they are presided over by the Warden of All Souls as Chairman of the Legal Board of Faculty. I do not know whether it has often happened that two schoolfellows, as nearly as possible of equal standing, should part, one to Oxford and one to Cambridge, and almost lose sight of one another for years; that they should take up the same profession, and their bent should lead them independently to deal with its learning in the same spirit; that they should select for illustration, for different external reasons, the very same subject; that they should use and discuss one an
other's work with perfect freedom, and without the shadow of constraint; and, lastly, that they should find themselves associated at the same University, in conditions the most agreeable and honourable for both, in the promotion and direction of their chosen study. These things, I conceive, would be esteemed an improbable combination in any
well-constructed fiction dealing with modern society. They are however the things, plainly and truly stated, which have happened to Sir William Anson and myself. His presence and companionship ought to dispersethey do disperse—whatever cloud of unfamiliarity might yet hang over my introduction to this University
So much it seemed not unfitting to say, on this peculiar occasion, of my personal privileges and opportunities. According to the common and reasonable usage, the duties and opportunities of my office, or rather of the branch of studies with which my office is concerned, appear most proper to be now the chief matter of our attention. The historical and comparative treatment of jurisprudence is the function particularly assigned to the Corpus Professor; and I do not think it needful to tell you either that historical and comparative jurisprudence exists (I speak of it in the singular, for the two branches converge to one study and one method), or what results it already has to show. The works of my predecessor in this Chair are a sufficient answer to any questions on that score. I understand that a certain sort of clever
young men, anxious to say something new and
surprising, are already going about to disparage Sir Henry Maine's way of research as a thing out of date. I shall not be at the pains of discussing this opinion. Nothing worse can happen to such as are capable of entertaining it than to remain possessed by their own conceit, and they deserve nothing better. If such a fancy is taken up otherwise than as a conscious exercise in paradoxical argument, it must be through total misapprehension of the historical method, of its true scope and significance, and of its place in modern science.
The historical method is not the peculiar property of jurisprudence or any other branch of learning. It is the newest and most powerful instrument, not only of the moral and political sciences, but of a great part of the natural sciences, and its range is daily increasing. The doctrine of evolution is nothing else than the historical method applied to the facts of nature; the historical method is nothing else than the doctrine of evolution applied to human societies and institutions. When Charles Darwin created the philosophy of natural history (for no less title is due to the idea which transformed the knowledge of organic nature from a multitude of particulars into a continuous whole), he was working in the same spirit and towards the same ends as the great publicists who, heeding his field of labour as little as he heeded theirs, had laid in the patient study of historical fact the bases of a solid and rational philosophy of politics and law. Savigny, whom we do not yet know or honour enough, and our own Burke, whom we know
and honour, but cannot honour too much, were Darwinians before Darwin. In some measure the same may be said of the great Frenchman Montesquieu, whose unequal but illuminating genius was lost in a generation of formalists. By such hands was the instrument formed and polished that my predecessor in this Chair has wielded in your presence and before the world : and from his hands I take it in reverence and not without fear, as a common mortal essaying to lift the spear of Achilles. It is a key to unlock ancient riddles, a solvent of apparent contradictions, a touchstone of sophistries, and a potent spell to exorcise those phantoms of superstition, sheeted now in the garb of religion, now of humanity, now (such is their audacity) of the free spirit of science itself, that do yet squeak and gibber in our streets. It is like the magic sword in Mr. George Meredith's delightful tale, whose power was to sever thoughts. One thing, indeed, the historical method will not do; there should be no mistake about this, and none shall be readier than myself to make the admission. Neither the theory of evolution in physics and psychology, nor the historical method in ethics and politics, can solve the ultimate problems of philosophy. But it does not follow that either of them is useless to the student approaching those problems. He may be helped by them to see in more than one way where science ends, and philosophy in the strict sense begins ; he may even be helped to perceive in what forms and within what limits philosophical questions may be reasonably and hopefully stated.
Thus we have to do not with a literary fashion, not with the style of work of this or that writer, but (it cannot be too often repeated) with a method which has transformed and is transforming the face of human knowledge. That such a method should not be fruitful when applied to the special subject-matter of jurisprudence, intimately connected as that is with the historical institutions of civilised mankind and with the history of human nature itself, would be a thing contrary to all rational expectation. It could be accounted for, did it so happen, only by singular incapacity or infelicity on the part of those who undertook the adventure. But it has not so happened: already we have ample fruit, and ample promise of more. Enough, however, of these things in general. If any man is wilfully blind, let us leave him to his blindness. It will now be convenient for us, I think, to consider, not what may be done by historical and comparative jurisprudence in the abstract, but what we as Englishmen, here and now, have special opportunities for making of it, and therefore what, to the best of our power, we ought to make of it.
Let us first notice what a tempting field is offered to the historical student by the laws and legal institutions of England; and for the moment I speak of England alone. We know that English law is the despair of systematic reformers; the very causes which have made it so make it an unrivalled treasurehouse of historical illustration. In our existing polity the latest mechanism of elaborate legislation may be found side by side with relics of a period of legal