272 BURR— THE TREATY-MAKING POWER LApni 20. 



cerning its extent and its effectiveness. Toward the clarification of 

 those ideas, this essay is an attempt. 



It is ail unescapable essential in English law that the actual facts, 

 the surrounding circumstances, the causes and the results, which 

 make up a practical controversy brought up for practical decision, 

 must be within the knowledge of those who judge, and guide their 

 minds to the principles which both underlie and spring out of their 

 decisions. The common law is an effort — so far as that effort may 

 be available under the conditions — to apply the methods of induc- 

 tion in arriving at truth respecting the problems which life offers to 

 a court for solution. Always there is present in the processes of the 

 law a secondary and subordinate deductive application of .principles 

 theretofore evolved to the concrete facts of the particular cases 

 newly arising; but in the larger sweep of time, the main eff'ort of 

 the common law is toward the determination of truth by the methods 

 of induction. 



The recognition of this inherent nature of English law must be 

 ever present to the inquirer and student. Thus only will the law 

 be conceived, as it is, an organic body, a thing living. The decided 

 cases are the manifestations of its life, and these must be analyzed 

 with all possible consideration of the facts out of which they came, 

 the manner of thought of the times when they were decided, the 

 stage of development which the principle of law sought to be exam- 

 ined had then reached. Language of a member of the Supreme 

 Court of the United States used in delivering its opinions, carried 

 with it quite different connotations, has for us today varying authori- 

 tative force, according to the period of our history when it was 

 written. The same words have different implications and mean- 

 ings and values, when uttered in the earliest days of the Supreme 

 Court, in the years preceding the outbreak of the Civil War, in the 

 Reconstruction period, in this twentieth century. It is for the stu- 

 dent of law, with what historical knowledge he may possess, to 

 endeavor to envisage the political conditions existing when the 

 decisions examined were delivered ; with what literary discrimina- 

 tion is his, to separate the salient and authoritative utterances of a 



