HISTORY OF LAW 245 



is a wholly different thing from the history of a rule or principle of 

 law, or of a particular legal institution. It is always very interesting, 

 and may often be profitable, to trace backward the history Law and 

 of a rule of law or a legal institution to its original con- Rules of 

 ception, or to trace downward the development of the aw ' 

 earliest conception formed of any rule or institution to its modern 

 status. In whichever method such investigation is pursued there is 

 great danger that we may mistake mere analogies due to similarity 

 of social conditions or race characteristics for the derivative relation 

 of cause and effect. Even an analogy, however, if carefully ascer- 

 tained, may prove to be interesting and instructive. But the history 

 of law does not consist of the history of the various rules and institu- 

 tions with which jurisprudence is concerned. 



Out of the earliest conception of science as the aggregate of human 

 knowledge, and of philosophy as the reason or explanation of the 

 relation of facts to each other, were differentiated branches Science of 

 of science, one of which was a knowledge of the law, and the Law. 

 branches of philosophy, one of which was the philosophy of the law; 

 and the art of administering the law was involved in this science 

 and this philosophy. Legal facts taken into consideration in the 

 administration of the law, generalized and arranged according to 

 some system of supposed relation and explained by some assumed 

 reason for their existence, became as thus arranged and explained 

 a branch of human knowledge which could be designated by the 

 term jurisprudence. That term might be applied to any aggregation 

 of legal facts having some relation to each other; for instance, the 

 facts of one branch of the law, such as the law of persons and of 

 property rights, the law of admiralty or the law of the relations of 

 nations to each other; or it might be applied to a knowledge of all 

 the law recognized within a state or nation or race; or it might be 

 applied to the law generally conceived of as including all ascertainable 

 facts found to exist affecting the relations of human beings to each 

 other anywhere so far as they are affected by or taken account of 

 in the administration of the law, arranged according to some system 

 and explained by some philosophy. The history of the development 

 of jurisprudence regarded as a branch of general human knowledge 

 and not related to the facts of a particular branch of the law, or a 

 particular system of law, may properly be spoken of as the history of 

 law, or the history of jurisprudence. If jurisprudence be described in 

 the brief phrase of Dr. Holland as "the formal science of positive 

 law," then the history of jurisprudence is the history of the develop- 

 ment of that science. Until this science was so far differentiated 

 from other sciences that it could be conceived of as a branch of 

 knowledge dealing with a group of facts having an independent 

 classification, and reasoned about as having an independent existence, 



