HISTORY OF COMMON LAW 345 



the law of his own land in his own day. He knows best how to choose 

 between authorities and reason backwards from new to old. As 

 Lord Bacon has put it: " Exempla, quae ad leges spectant non placet 

 ab historicis peti, sed ab actis publicis et traditionibus diligentioribus. 

 Versatur enim infelicitas quaedam inter historicos vel optimos, ut leg- 

 ibus et actis judicialibus non satis immorentur." 1 



The history of the common law is continuously connected, by the 

 necessities of judicial procedure and through the interpretation of 

 statutes and contracts, with that of the physical sciences. 



Rights are worthless unless there are courts to protect them. 

 Courts proceed by rule. One rule of common use is that judges take 

 notice, without proof, of whatever so belongs to universal know- 

 ledge that it may fairly be assumed to be familiar to all. This doc- 

 trine, styled by English law " judicial notice," puts at the service 

 of courts of common law, without proof, all that human science has 

 established beyond a question. It does not, indeed, ask how 

 through what scientific processes results have been attained. 

 It accepts them on faith. But it uses them in a scientific way, for 

 scientific purposes. 



The Supreme Court of the United States was called upon some 

 years ago to determine whether a patent for a certain invention 

 could be sustained. It was for a method of preserving meat in a 

 receptacle inclosed by a refrigerating chamber. Was this a new de- 

 vice? If not, the patent had been erroneously granted. The judges, 

 without proof, decided that it was simply an application to a new 

 purpose of the principle of the common ice-cream freezer. 2 



A statute contains a term of art or is based on a scientific theory. 

 It is then for the courts to interpret and apply these on the principles 

 of the common law. 



A few years since an American legislature enacted that a certain 

 public officer should inspect all peach-orchards, and if he found any 

 trees affected by the disease known as the " yellows " should destroy 

 them. Was this or was it not to give to one man arbitrary authority 

 over another's property? It was, unless the science of agriculture 

 had established the danger of infection from trees seized by that 

 disease, and the history of agricultural science thus became the 

 handmaid of the law. 3 



So contract rights expand with the expansion of physical science. 



An owner of a colliery in England in the seventeenth century 

 acquired a grant of a right of way to haul his coal across the land of 

 another to the highway. Two centuries later came the invention of 

 the steam railway. He built one, and the courts supported his right 



1 De Augmenfis Scientiarum, vm, in, Aphorismus, xxix. 



2 Brown v. Piper, 91 U. S. Reports, 37. 



3 State v. Main, 69 Connecticut Reports, 123, 136. 



