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Vol. IV.- SEPTEMBER, 1895. — No. 13.
THE VOCATION OF THE COMMON LAW.1
TWELVE years ago, before I had formed any definite purpose of seeing with my own eyes and hearing with my own ears how the common law prospers on this side of the ocean, I exhorted those who heard my first lecture at Oxford to embrace all opportunities of greeting with no stranger's welcome those brethren from the West who come to visit our ancient seats of learning in the name of our common tongue and common doctrine. Converting Scripture to the use of the moment in a manner which would have needed no justification or excuse for a mediaeval lawyer, I then made bold to say: “ Benedictus qui venit in nomine legum Angliae.” Since that time I have done what little I could do to
my own precept; little enough, in any case, in comparison with the reward. For within a year I found myself here, and I knew that the blessing had come back to me by this token among others: to wit, that before my acquaintance with my learned friend the Royall Professor was a quarter of an hour old we were deep in the question whether determinable estates in fee simple are known to the common law, and if so, what are the properties
of such an estate.
Now I am here this time at your express bidding. That honor you have been pleased to do me is, as regards myself, one of the most gratifying I have ever received. But I should fail to esteem it at its full worth if I were to take it as confined to my own person,
Oration delivered in Sanders Theatre, Cambridge, on June 25, 1895, before the Harvard Law Association, at the celebration of the completion of the twenty
of Professor C. C. Langdell's service as Dean of the Harvard Law
and did not accept it as a mark of your friendly affection and remembrance addressed in this hour of your festal gathering to the bar and universities of the old country. And, as in private duty bound, I must especially rejoice in the office to which you have called me as being a fresh visible sign of the original bond that links this university, in name and in substance, with my own university of Cambridge in England. Standing on that venerable
. bond as a sufficient authority, I hold myself well entitled, here and now, to wish Harvard and its Law School continuance and increase of all good things, in the name both of the profession at home and of the humanities which you most wisely deem an essential preparation for the study of the law.
It would be an idle task for me to praise the aims or the work of the Harvard Law School in this presence. For, although it would in truth be sincere, praise coming from your guest could not be above the suspicion of partiality for any one who chose to suspect, nor therefore could it carry much weight with any one still standing in need of conviction. Still less would it befit this occasion to enter into a controversial discussion of actual or possible methods of legal instruction. Even if this law school were not past the stage of apologetics, it would be an impertinence not to suppose you better prepared to defend your own system, and better capable of judging the time, season, and manner of any defense than the most sympathetic of strangers.
There is one product of your School, however, that stands apart and can be judged on its independent merits. I mean the Harvard Law Review. Now this review has been in existence only eight years, and within that time its contributions to the history and science of our law have been of the utmost value. This is so far from being controvertible that it can hardly be called matter of opinion at all. No such record of profitable activity has been shown within recent times by any other law school; and although it is not necessary to commit oneself to the correctness of this statement beyond the range of English-speaking countries, I do not know that there would be any great rashness in making it universal.
The singularly full and brilliant number of the Review, published in honor of Dean Langdell's silver wedding with the School, need not fear comparison with the festival collections of essays
produced at any German university. The school that commands the services of such teachers and workers is at all events a living power. Let us pass on to consider in what manner of sphere it works.
The fact of such a meeting as the present implies a greater matter than the merits of even the best law school. Harvard has sent out her sons to practice in the courts of many jurisdictions, and they return to her in no way estranged. Coming from England myself, I am here, as a lawyer, more at home than in Scotland. We are not a congress come together to compare notes of different systems, if haply we may understand one another and profit by an exchange of novel wares; we are not only of one speech but of one rule; we talk freely of our law, the common law. This is one of the things we do so naturally that it seems too simple for discussion. And yet it is among the wonders of history, and may not be wholly without philosophical bearings. If, as a certain school would have it, law be merely the command of a sovereign power, that which the legislature of Massachusetts, or New York, or the United Kingdom, has thought fit to ordain or permit; if law be this, and nothing more, then it would seem that the historical and empirical coincidences between the commands it has pleased our respective political sovereigns to issue deserve much less importance than we have been accustomed to attach to them, and that there is no rational justification for your habit (existing, I believe, in all, or nearly all, the States) of citing English decisions more frequently than those of any other external jurisdiction. If, on the other hand, our traditions, our professional habits of thought, and our judicial practice are not foolishness, it would seem to be because the law is not an affair of bare literal precepts, as the mechanical school would make it, but is the sense of justice taking form in peoples and races. The law of our English-speaking commonwealths, on which the sun never sets, is one law in many varieties, not many laws which happen to resemble one another in several particulars.
Historians and publicists may discuss how far the political separation of these States from the British Crown was beneficial to the mother country and the emancipated family, what drawbacks were incident on either side to the advantages, and how far they were avoidable or not so. Lawyers may join them in regret