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common digests and textbooks。 Applications of rudimentary rules of
contract or tort are tucked away under the head of Railroads or
Telegraphs or go to swell treatises on historical subdivisions； such as
Shipping or Equity； or are gathered under an arbitrary title which is
thought likely to appeal to the practical mind； such as Mercantile Law。
If a man goes into law it pays to be a master of it； and to be a master
of it means to look straight through all the dramatic incidents and to
discern the true basis for prophecy。 Therefore； it is well to have an
accurate notion of what you mean by law； by a right； by a duty； by
malice； intent； and negligence； by ownership； by possession； and so
forth。 I have in my mind cases in which the highest courts seem to me
to have floundered because they had no clear ideas on some of these
themes。 I have illustrated their importance already。 If a further
illustration is wished； it may be found by reading the Appendix to Sir
James Stephen's Criminal Law on the subject of possession； and then
turning to Pollock and Wright's enlightened book。 Sir James Stephen is
not the only writer whose attempts to analyze legal ideas have been
confused by striving for a useless quintessence of all systems； instead
of an accurate anatomy of one。 The trouble with Austin was that he did
not know enough English law。 But still it is a practical advantage to
master Austin； and his predecessors； Hobbes and Bentham； and his worthy
successors； Holland and Pollock。 Sir Frederick Pollock's recent little
book is touched with the felicity which marks all his works； and is
wholly free from the perverting influence of Roman models。
The advice of the elders to young men is very apt to be as unreal as a
list of the hundred best books。 At least in my day I had my share of
such counsels； and high among the unrealities I place the recommendation
to study the Roman law。 I assume that such advice means more than
collecting a few Latin maxims with which to ornament the discoursethe
purpose for which Lord Coke recommended Bracton。 If that is all that is
wanted； the title De Regulis Juris Antiqui can be read in an hour。 I
assume that； if it is well to study the Roman Law； it is well to study
it as a working system。 That means mastering a set of technicalities
more difficult and less understood than our own； and studying another
course of history by which even more than our own the Roman law must
explained。 If any one doubts me； let him read Keller's Der Romische
Civil Process und die Actionen； a treatise on the praetor's edict；
Muirhead's most interesting Historical Introduction to the Private Law
of Rome； and； to give him the best chance； Sohn's admirable Institutes。
No。 The way to gain a liberal view of your subject is not to read
something else； but to get to the bottom of the subject itself。 The
means of doing that are； in the first place； to follow the existing body
of dogma into its highest generalizations by the help of jurisprudence；
next； to discover from history how it has come to be what it is； and
finally； so far as you can； to consider the ends which the several rules
seek to accomplish； the reasons why those ends are desired； what is
given up to gain them； and whether they are worth the price。
We have too little theory in the law rather than too much； especially on
this final branch of study。 When I was speaking of history； I mentioned
larceny as an example to show how the law suffered from not having
embodied in a clear form a rule which will accomplish its manifest
purpose。 In that case the trouble was due to the survival of forms
coming from a time when a more limited purpose was entertained。 Let me
now give an example to show the practical importance； for the decision
of actual cases； of understanding the reasons of the law； by taking an
example from rules which； so far as I know； never have been explained or
theorized about in any adequate way。 I refer to statutes of limitation
and the law of prescription。 The end of such rules is obvious； but what
is the justification for depriving a man of his rights； a pure evil as
far as it goes； in consequence of the lapse of time？ Sometimes the loss
of evidence is referred to； but that is a secondary matter。 Sometimes
the desirability of peace； but why is peace more desirable after twenty
years than before？ It is increasingly likely to come without the aid of
legislation。 Sometimes it is said that； if a man neglects to enforce
his rights； he cannot complain if； after a while； the law follows his
example。 Now if this is all that can be said about it； you probably
will decide a case I am going to put； for the plaintiff； if you take the
view which I shall suggest； you possibly will decide it for the
defendant。 A man is sued for trespass upon land； and justifies under a
right of way。 He proves that he has used the way openly and adversely
for twenty years； but it turns out that the plaintiff had granted a
license to a person whom he reasonably supposed to be the defendant's
agent； although not so in fact； and therefore had assumed that the use
of the way was permissive； in which case no right would be gained。 Has
the defendant gained a right or not？ If his gaining it stands on the
fault and neglect of the landowner in the ordinary sense； as seems
commonly to be supposed； there has been no such neglect； and the right
of way has not been acquired。 But if I were the defendant's counsel； I
should suggest that the foundation of the acquisition of rights by lapse
of time is to be looked for in the position of the person who gains
them； not in that of the loser。 Sir Henry Maine has made it fashionable
to connect the archaic notion of property with prescription。 But the
connection is further back than the first recorded history。 It is in
the nature of man's mind。 A thing which you have enjoyed and used as
your own for a long time； whether property or an opinion； takes root in
your being and cannot be torn away without your resenting the act and
trying to defend yourself； however you came by it。 The law can ask no
better justification than the deepest instincts of man。 It is only by
way of reply to the suggestion that you are disappointing the former
owner； that you refer to his neglect having allowed the gradual
dissociation between himself and what he claims； and the gradual
association of it with another。 If he knows that another is doing acts
which on their face show that he is on the way toward establishing such
an association； I should argue that in justice to that other he was
bound at his peril to find out whether the other was acting under his
permission； to see that he was warned； and； if necessary； stopped。
I have been speaking about the study of the law； and I have said next to
nothing about what commonly is talked about in that connectiontext…
books and the case system； and all the machinery with which a student
comes most immediately in contact。 Nor shall I say anything about them。
Theory is my subject； not practical details。 The modes of teaching have
been improved since my time； no doubt； but ability and industry will
master the raw material with any mode。 Theory is the most important
part of the dogma of the law； as the architect is the most important man
who takes part in the building of a house。 The most important
improvements of the last twenty…five years are improvements in theory。
It is not to be feared as unpractical； for； to the competent； it simply
means going to the bottom of the subject。 For the incompetent； it
sometimes is true； as has been said； that an interest in general ideas
means an absence of particular knowledge。 I remember in army days
reading of a youth who； being examined for the lowest grade and being
asked a question about squadron drill； answered that he never had
considered the evolutions of less than ten thousand men。 But the weak
and foolish must be left to their folly。 The danger is that the able
and practical minded should look with indifference or distrust upon
ideas the connection of which with their business is remote。 I heard a
story； the other day； of a man who had a valet to whom he paid high
wages； subject to deduction for faults。 One of his deductions was； 〃For
lack of imagination； five dollars。〃 The lack is not confined to valets。
The object of ambition； power； generally presents itself nowadays in the
form of money alone。 Money is the most immediate form； and is a proper
object of desire。 〃The fortune；〃 said Rachel； 〃is the measure of
intelligence。〃 That is a good text to waken people out of a fool's
paradise。 But； as Hegel says； 〃It is in the end not the appetite； but
the opinion； which has to be satisfied。〃 To an imagination of any scope
the most far…reaching form of power is not money； it is the command of
ideas。 If you want great examples； read Mr。 Leslie Stephen's History of
English Thought in the Eighteenth Century； and see how a hundred years
after his death the abstract speculations of Descartes had become a
practical fo