344 HISTORY OF COMMON LAW 



And yet what is more scientific than the theory and practice of 

 the law of evolution? In that this has been followed, the history of 

 the common law shows that its advance has been scientific. It has 

 been thoroughly unscientific in this, that it has never been system- 

 atically arranged and set in order. Governments and peoples have 

 not stopped to analyze their common law. They have practiced it 

 rather than studied it. 



Science has, strictly speaking, nothing to do with productive 

 application. It inquires for the sake of knowledge. Science teaches 

 man to know: art teaches him to act. Art leans on science; but 

 science is independent of art. 



Our business in this Congress of Arts and Science is, I take it, to 

 look at a lawyer's art so far only as it gathers strength and form 

 from science, and finds its guide in jurisprudence. 



But while jurisprudence is independent of the art of legal practice, 

 there are other arts of which she is not independent, and from which 

 she derives nourishment and support. 



History is a tale that is told. It is an art to tell it well. Science 

 may supply the master-keys to unlock its secret places, but what she 

 discovers is fruitless unless so stated and illustrated as to catch the 

 ear and strike the mind. 



Law precedes letters, but the history of literature as well as of lan- 

 guage must be far advanced before that of law can be really begun. 



One does not rise from the study of the first book of the Pandects, 

 which takes up the origin of Roman law, with the feeling that any 

 full and comprehensive treatment of the subject has been given. 

 The main facts are there, but they are cold and lifeless. This is not 

 simply because the Pandects are an array of disjecta membra, into 

 which no one human being has breathed the breath of life of 

 his life. It is because the Roman jurists had not learned the art 

 of historical composition as applied to explaining the development of 

 legal conceptions. There was no Grotius, no Savigny, no Maine, to 

 detect the minor forces of jurisprudence and marshal them in line. 



The literary style and spirit of men like these is hardly less import- 

 ant than their knowledge of the subjects of which they treat. It is 

 the artist only who can portray with that sense of proportion and 

 symmetry so essential to one who would set any system of things 

 before other men in a way to be felt and remembered. 



The historian of the common law of any land must be artist and 

 lawyer, both. 



A lawyer only can differentiate the legal from the social currents 

 in the life of a nation. A scholarly antiquary a Bishop Stubbs 

 may be more competent to explore the sources, and set out materials 

 for the work. But the task of discriminating and rearranging can only 

 be done satisfactorily by one who is by long practice familiar with 



