THE PROBLEMS OF TO-DAY FOR THE HISTORY OF THE 



COMMON LAW 



BY JOHN HENRY WIGMORE 



[John Henry Wigmore, Professor in the Law School of the Northwestern Univer- 

 sity, Chicago, and Dean of the Law Faculty, b. March 4, 1863, San Francisco, 

 California. A.B. 1883; LL.B. 1887; A.M. 1887; Professor of Anglo-American 

 Law in Fukuzawa University, Tokyo, Japan, 1889-92; Professor in North- 

 western University, 1893; member of Asiatic Society of Japan, American Bar 

 Association, American Political Science Association. Author of Australian 

 Ballot System; Notes on Land Tenure and Local Institutions in Old Japan; 

 Treatise on Evidence; etc.] 



A chief object in the study of history is to learn the lessons which 

 it may teach for the future. That is a sufficient excuse for consider- 

 ing the present subject from the practical point of view. " What 

 has been done about it?" is an inquiry which will here serve to lead 

 to the further one, "What is to be done about it?" In the light of 

 an official interpretation vouchsafed by one of the Vice-Presiderits 

 of this Congress, the inquiries relevant to the problems of to-day for 

 the History of the Common Law may be phrased as follows: 



I. What are the chief historical facts or influences still left unknown 

 or obscure in our law and the efforts anywhere being made for the eluci- 

 dation of them by research? 



II. What are the methods by which further investigation of our legal 

 history can be encouraged, and its hitherto attained results be made 

 broadly known and influential in the legal profession? 



III. What are its chief lessons and warnings for the future tendencies 

 of our legal history? 



I. Vangerow said in his Pandecten, speaking of the early history 

 of procedure in Roman law: "All books written on this subject 

 before the year 1820 are useless"; because in that year appeared the 

 first edition of the text of Gaius's Institutes, newly discovered to the 

 world in 1816 by Niebuhr. In the same way, it might almost be 

 said, of the historical development of English private law, that all 

 books written before 1881 may be ignored; because in that year 

 begins the triple lustrum marked by Mr. Justice Holmes 's The Common 

 Law, Sir James Stephen's History of the Criminal Law, the Selden 

 Society's initial publications, Professor Ames's essays on the History 

 of Civil Actions, and Sir Frederick Pollock's and Professor Maitland's 

 treatise on the history of English law before the time of Edward I. 

 Up to that period, to be sure, much had already been done to clear 

 the way. The surrounding regions had been thoroughly opened; 

 that of constitutional history, by Stubbs, Gneist, and many others; 



