第10章

We have too little theory in the law rather than too much, especially on this final branch of study.When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose.In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained.Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way.I refer to statutes of limitation and the law of prescription.The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter.Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation.Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example.Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant.A man is sued for trespass upon land, and justifies under a right of way.He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained.Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired.But if I were the defendant's counsel, Ishould suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser.Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription.But the connection is further back than the first recorded history.It is in the nature of man's mind.A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.The law can ask no better justification than the deepest instincts of man.It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another.If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.

I have been speaking about the study of the law, and I have said next to nothing about what commonly is talked about in that connection--text-books and the case system, and all the machinery with which a student comes most immediately in contact.Nor shall I say anything about them.

Theory is my subject, not practical details.The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode.Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house.The most important improvements of the last twenty-five years are improvements in theory.

It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge.I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men.But the weak and foolish must be left to their folly.The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote.I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults.One of his deductions was, "For lack of imagination, five dollars." The lack is not confined to valets.

The object of ambition, power, generally presents itself nowadays in the form of money alone.Money is the most immediate form, and is a proper object of desire."The fortune," said Rachel, "is the measure of intelligence." That is a good text to waken people out of a fool's paradise.But, as Hegel says, "It is in the end not the appetite, but the opinion, which has to be satisfied." To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas.If you want great examples, read Mr.Leslie Stephen's History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men.Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte.We cannot all be Descartes or Kant, but we all want happiness.And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars.An intellect great enough to win the prize needs other food besides success.The remoter and more general aspects of the law are those which give it universal interest.It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

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