ting that the hostilities which at one time actually took place between the United States and the French republic were not prolonged, or not serious enough to bring about an Anglo-American alliance. For in that event we should not only have escaped the war of 1813, and learnt to respect one another as comrades instead of adversaries in arms; not only might some great fraternal victory have anticipated Trafalgar, and the Napoleonic legend have been cut short in its career of mischief; but the exploits of our combined naval strength would have directed the combined intellect of British and American jurists to the definition and improvement of public law. The law of nations would have been enriched with results, possibly of greater intrinsic merit, assuredly of more commanding authority, than any that we have yet seen. But a common enmity — which in this case turned out, as regards the United States, to arise from transitory causes-was not enough to found an alliance within so short a time of the first embittered separation. Anyhow, there is little profit to be had from straying into the dreamland of events that did not happen. And if any one should go so far on this line as to regret not only the manifestly regrettable incidents of our separation, but the fact that the independence of the United States was established, fully, clearly, and absolutely, I do not see how any of us, whether American or English, can be free as a lawyer to go along with him. For without this perfect independence of local sovereignty and jurisdiction it would never have been made known how deep and firm is the organic unity of our legal institutions and science, which the shock of severance and a century of independent, judicial, and legislative activity have left, in all essential features, untouched.

We need no witnesses, least of all in an assembly of lawyers, to prove the persistence of this unity. But on this western side of the ocean it is more conspicuous than on the eastern. The very multifariousness of tribunals and legislatures under a federal constitution drives you back from the varying details of practice in this and that State to seek the fountain-head of principle in the central ideas of the law. To guide and encourage this process is among the functions of the Supreme Court of the United States; we need not attempt to measure it against the high constitutional and political duties assigned to that court, but at all events it is mainly in virtue of this office that the court is not only renowned,

but influential, far beyond the borders of its actual jurisdiction. Even the Supreme Court of the United States, however, must, in the long run, be what the training and temper of the legal profession make it. And if we are to know what the profession, at its best, will be in the coming generation, we still have to look among those who are teaching and learning. If there be any seat of learning where this ideal of the essential unity of the common law, in all its dwelling-places, has been wisely and diligently cherished, it is Harvard; if there be any teacher whose work has been steadfastly directed to this end, it is Mr. Langdell, whose long and excellent service to this School, and not only to this School, we are now happy to celebrate.

Mr. Langdell has insisted, as we all know, on the importance of studying law, at first hand, in the actual authorities. I am not sure whether this is the readiest way to pass examinations; that is as the questions and the examiners may be. I do feel sure it is the best way, if not the only one, to learn law. By pointing out that way Mr. Langdell has done excellently well. But the study he has inculcated by precept and example is not a mere letterworship of authority. No man has been more ready than Mr. Langdell to protest against the treatment of conclusions of law as something to be settled by mere enumeration of decided points.

For the law is not a collection of propositions, but a system founded on principles; and although judicial decisions are in our system the best evidence of the principles, yet not all decisions are acceptable, or ultimately accepted, and principle is the touchstone by which particular decisions have to be tried. Decisions are made, principles live and grow. This conviction is at the root of all Mr. Langdell's work, and makes his criticism not only keen but vital. Others can give us rules; he gives us the method and the power that can test the reason of rules. And therefore, as it seems to me, his work has been of a singularly fruitful kind, and profitable out of proportion to its visible bulk. Probably several of us have dissented, now and again, from this or that opinion of Mr. Langdell's. We may have been unable to concur in his deduction, or we may have thought that his reasoning was correct, but the received authorities were too strongly against him, and that he must be content with standing as the Cato of a vanquished cause. But none of us, I think, has ever failed to learn some

thing, even when he could not follow. For my own part, I have considered and reconsidered much of Mr. Langdell's criticism; I have more than once, on a second or third time of reflection, come round to think with him; at all times, whether going side by side with Mr. Langdell or withstanding him, I have felt, and the feeling has grown upon me with riper acquaintance, that appreciation of his point of view was sure to bring one nearer the heart of the common law.

Now it may be said, and truly, that the range of any one man's work, even the best, is limited. We have to see whether it is typical, one of like examples present and to come. Permanent fruits can be assured only when the stock is multiplied. In the case before us we are encouraged in no small degree by the fact that Mr. Langdell stands eminent, but by no means alone. The same spirit in which he has taught and criticised has been carried by others not only into the literary exposition, but into the judicial development of the law. The name of my friend Mr. Justice Holmes will already be in your minds. In England we can perhaps speak, for the moment, less cheerfully. We are still lamenting the loss of two great judges who most worthily represented this universal and unifying spirit of our law (and I may the more fitly mention them here because you know them), Lord Hannen and Lord Bowen. That loss is all the greater because the besetting danger of modern law is the tendency of complex facts and minute legislation to leave no room for natural growth, and to choke out the life of principles under a weight of dead matter which posterity may think no better than a rubbish-heap. And the continued divorce of the academical from the practical study of law in the old country is not, in my opinion, a good thing either for the universities or for the Inns of Court. Nevertheless, the main stream runs clear. Any one who follows the decisions of the House of Lords and the Court of Appeal from year to year will be satisfied, I think, that the science of law is still as much alive in England as ever; and, so far as my opportunities of knowledge have gone, I think you will be ready to warrant me in saying the same of the United States. Only we need, it seems to me, a little more self-confidence, a further touch of the quality that Mr. Swinburne has somewhere called " an excellent arrogance." Our mediaeval ancestors were certainly not lacking in

this quality; they might have done well, perhaps, if they could have saved a little of their superfluity for us. I will endeavor to explain my meaning.

We have long given up the attempt to maintain that the common law is the perfection of reason. Existing human institutions can only do their best with the conditions they work in. If they can do that within the reasonable margin to be allowed for mistakes and accidents, they are justified in their generation. Even their ideal is relative. What is best for one race or one society, at a given stage of civilization, is not necessarily best for other races and societies at other stages. We cannot say that one set of institutions is in itself better or more reasonable than another, except with reference, express or implied, to conditions that are assumed, either to be universal in human societies, or to be not materially different in the particular cases compared. It may, perhaps, be safe to assume, in a general way, that what is reasonable for Massachusetts is reasonable for Vermont. It would not be at all safe to assume that everything reasonable for Massachusetts is reasonable for British India, nor, indeed, that within British India what will serve for Lower Bengal will equally well serve for the northwest frontier. The first right of every system, therefore, is, to be judged in its own field, by its own methods, and on its own work. It cannot be seen at its best, or even fairly, if its leading conceptions are forced into conformity with an alien mould. A sure mark of the mere handicraftsman is to wonder how foreigners can get on with tools in any way different from his own.

Thus in England one shall meet people who cannot understand that the Scots do without any formal difference between law and equity; as, on the other hand, I have known learned Scots fail to perceive that the common law doctrine of consideration, being unknown to the law of Scotland, is yet founded on the hard bottom of economic fact, which every legal system has to strike somewhere. We now realize that the laws of every nation are determined by their own historical conditions, not only as to details, but as to structure; and if we fail to attend to this, we cannot duly appreciate the system as we find it at a given time. Many points of early Roman law remain obscure to us, notwithstanding more than half a century of the brilliant and devoted

work of modern scholars, just because the historical conditions are matter of conjecture. In our own system the most elementary phrases of equity jurisprudence carry with them a vast burden of judicial and political conflict; and the range of activity left open to the Court of Chancery in Blackstone's time can be understood only when we have mastered both the strength and the weakness of the action on the case two centuries earlier. But history does not exclude reason and continuity, any more than a man's parentage and companions prevent him from having a character of his own. Development is a process and not a succession of incidents. Environment limits and guides the direction of effort; it cannot create the living growth.

Hence it seems to follow that a system which is vital and really individual either must be resigned to remain in some measure inarticulate, or must have some account to give of itself that is not merely dogmatic and not merely external history, but combines the rational and the historical element. In other words, its aims are not completely achieved unless it has a philosophy; and that philosophy must be its own. This we recognize freely enough as regards other systems. It appears to us quite natural that Roman law should have its proper conceptions and terminology. think no worse of the Roman law of property for starting from the conception of absolute ownership rather than the conception of estates, no worse of the Roman law of injuries by negligence for being developed by way of commentary on a specific statute and not, as with us, through judicial analogies of the similar notion of trespass, aided by statute only so far as the Statute of Westminster was necessary for the existence of actions on the case.

We

What I desire to suggest is that, as we allow this liberty to others as matter of right, we should not be afraid of claiming it for ourselves; that, if English-speaking lawyers are really to believe in their own science, they must seek a genuine philosophy of the common law, and not be put off with a surface-dressing of Romanized generalities. Take, for example, the Germanic idea, which lies at the root of our whole law of property, the idea of seisin. So much has this idea been overlaid with artificial distinctions and refinements in the course of seven centuries, that it is possible even for learned persons to treat it as obsolete. Nevertheless, it is there still. Actual enjoyment and control of land or