358 HISTORY OF COMMON LAW 



With such expedients we shall have done something to secure 

 a firm and lasting growth for historical research. 



(B) But the second part of our question is perhaps more pressing, 

 certainly more puzzling to answer: How can we make the Bench 

 and Bar to know, to possess, and to utilize what is already written? 

 True culture, says Matthew Arnold, is inspired not only by the 

 scientific passion, but by the passion of doing good. "Culture is 

 considered, not merely as the endeavor to see and learn this, but 

 the endeavor, also, to make it prevail." How, then, can we make the 

 acquired truths of history prevail? 



It is plain to us all that our profession in this country radically 

 lacks taste, and interest, and common attainments, in the history 

 of our law. It is absorbed in the practice. "Not to know w r hat has 

 been transacted in former times," says Cicero, "is to continue 

 always a child. If no use is made of the labors of past ages, the 

 world must remain always in the infancy of knowledge." Of what 

 ultimate use is our historical research if its results remain practically 

 unknown and unused by the profession itself in the interpretation 

 and administration of the present law? It is depressing, it is irritating 

 to observe how scant is the consideration, how dense the ignorance, 

 shown by the practical administrators of the law when its history 

 becomes material in their work. The crude pronouncements of a 

 hundred years ago seem still to suffice. There might almost as well 

 have been, for them, no history written during the past two or three 

 generations. The astonishing obstinacy of this narrow professional 

 habit may be illustrated by a single but entirely typical instance. 

 Ex uno disce omnes. If there is one topic which is the pride and the 

 commonplace of our law, it is jury trial; if there is one topic more 

 than another which is known to have a history, it is jury trial; if 

 there is one question more than another in which history can con- 

 tribute to the settlement of modern practical questions, it is whether 

 in trial by jury, as handed down from of old, the number twelve is 

 essential; and, finally, if there is one tribunal more than another 

 which has by common attribution the highest legal attainments and 

 the least excuse for lacking them, it is the Supreme Court of the 

 United States. In the year 1897, then, in discussing this question 

 historically (in Thompson v. Utah), 1 the opinion of the Supreme 

 Court of the United States of America declares that the well-known 

 clause of Magna Charta pledging a trial by judgment of the free- 

 man's peers signified trial by jury. 2 Now in 1895, two years before, 

 the epoch-making history of Pollock & Maitland had appeared in 



1 170 U. S. 343, 349; 18 Sup. 620. 



2 " When Magna Charta declared that no freeman should be deprived of life, 

 etc., ' but by the judgment of his peers by the law of the land,' it referred to 

 a trial by twelve jurors." 



