Imágenes de páginas



I HAVE read the second article of the Lord Chief Justice, but I see no reason to change the opinions which I have expressed. I will only add a few words of explanation.

I trust that it will be understood that I did not undervalue the moral or even the intellectual advantages of a university education, but that I am speaking of its importance for what I may call a fighting success.

In saying that the main roots of our law are Frankish I mean to deny the notion, which has been held, that they are Roman, rather than accurately to discriminate the particular folk-law to which we are most indebted. I do not think, however, that any of the most important conceptions of private law are of native origin in England.

For further expression of my views I should have to refer to my book on The Common Law and to an article on "Early English Equity” in the Law Quarterly Review. The leading ideas there advanced appear to me to have been followed in the main by the latest and most accomplished historians of English law, Sir F. Pollock and Mr. Maitland.


MENT 1897 *

A UNIVERSITY is a place from which men start for the Eternal City. In the university are pictured the ideals which abide in the City of God. Many roads lead to that haven, and those who are here have traveled by different paths towards the goal. I do not know what better the travelers can do at a gathering like this, where for a moment the university becomes conscious of itself and of its meaning, than to report to those about to start something of their experiences and to give a hint of what is to be expected on the way.

My way has been by the ocean of the law. On that I have learned a part of the great lesson, the lesson not of law but of life. There were few of the charts and lights for which one longed when I began. One found oneself plunged in a thick fog of details — in a black and frozen night, in which were no flowers, no spring, no easy joys. Voices of authority warned that in the crush of that ice any craft might sink. One heard Burke saying that law sharpens the mind by narrowing it. One heard in Thackeray of a lawyer bending all the powers of a great mind to a mean profession. One saw that artists and poets shrank from it as from an alien world. One doubted oneself how it could be worthy of the interest of an intelligent mind. And yet one said to oneself, law is human — it is a part of man, and of one world with all the rest. There must be a drift, if one will go prepared and have patience, which will bring one out to daylight and a worthy end. You all have read or heard the story of Nansen and see the parallel which I use. Most men of the college-bred type in some form or other have to go through that experience of sailing for the ice and letting themselves be frozen in. In the first stage one has companions, cold and black though it be, and if he sticks to it, he finds at last that there is a drift as was foretold. When he has found that he has learned the first part of his lesson, that one is safe in trusting to courage and to time. But he has not yet learned all. So far his trials have been those of his companions. But if he is a man of high ambitions he must leave even his fellowadventurers and go forth into a deeper solitude and greater trials. He must start for the pole. In plain words he must face the loneliness of original work. No one can cut out new paths in company. He does that alone.

* Hitherto unprinted.

When he has done that and has turned misgiving into success he is master of himself and knows the secret of achievement. He has learned the second part of his lesson and is ready for the consummation of the whole. For he has gained another knowledge more fruitful than success. He knows now what he


had divined at the outset, that one part of the universe yields the same teaching as any other if only it is mastered, that the difference between the great way of taking things and the small — between philosophy and gossip is only the difference between realizing the part as a part of a whole and looking at it in its isolation as if it really stood apart. The consummation to which I referred comes when he applies this knowledge to himself. He may put it in the theological form of justification by faith or in the philosophical one of the continuity of the universe. I care not very much for the form if in some way he has learned that he cannot set himself over against the universe as a rival god, to criticize it, or to shake his fist at the skies, but that his meaning is its meaning, his only worth is as a part of it, as a humble instrument of the universal power. It seems to me that this is the key to intellectual salvation, as the key to happiness is to accept a like faith in one's heart, and to be not merely a necessary but a willing instrument in working out the inscrutable end.


WHEN we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court.7 The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these

* An Address delivered by Mr. Justice Holmes, of the Supreme Judicial Court of Massachusetts, at the dedication of the new hall of the Boston University School of Law, on January 8, 1897. Copyrighted by O. W. Holmes, 1897. Harvard Law Review, Vol. X., 457.

« AnteriorContinuar »