Page:The Green Bag (1889–1914), Volume 08.pdf/277

 250

In law there is as much need for scientific exegesis as in theolftgy. Laws that have been long enacted need to be studied in their history, often a more difficult task than the interpretation of literature, owing to the com pact form and the isolation in which a law stands. The various changes that have taken place in their structure must be ascertained that the true value may be given to each separate word. The circumstances under which laws were put forth must be discov ered in order to make the import of the enactment perfectly clear. In short, laws must be studied in relation to their times, that we may not miss the spirit in our en deavors to fulfill the letter. If the saying be true," Tempora mutantur, et nos mutamur in illis," it is no less true "Tempora mutantur, et lex mutatur in illis " -— and who shall inter pret the law but those learned in the law? True as all this is respecting statute law, it is equally true and even more important in regard to common law. In the statutes the lawyer has, in the vast majority of cases, legislation of a comparatively recent period. The eternal vigilance of the profession secures from time to time the necessary re vision of the statutes, and important amend ments, so that the law may be clear as to its scope and applicable to the present state of society; but in that vast body of law which is the expression of the sense of jus tice native to the race there is, from its very nature, little opportunity for amendment or revision. Who is to interpret this law, the Common Law? who is to make those principles that trace their origin to the earliest Aryan vil lage community applicable to the highly complex society in which we find ourselves? Who but those who for five thousand years have been constantly engaged in that one occupation? To be sure, the law has not existed all this vast extent of time as a distinct profes sion : the lawyer's work was originally a part of the king's duty, in the same way as the |

chief of state was the earliest high priest. But with the advancing race came the dis tinctions of professions, and there has been no breach in the continuity of function. We can never forget the labors of those who have vindicated for the legal profession its claim to be an integral part of the civil ized community. We can never forget such men as Lord Mansfield, who found the Com mon Law as applied to business in a state more in place in the dark ages than in Eng land in the eighteenth century, and left it a commercial code abreast of the business affairs of a great nation. Within a hundred years the nation had grown from a secondrate to a first-rate power. A century before its king had been a pensioner of France; it was now the conqueror of France; and the commercial revolution was more important than the political. The law must enlarge pari passu with the nation, yet the same principles must remain, for the nation was the same — only grown. The conscience of the race was the same. The law, must, however, meet the new de mands made upon it. Was it done by sketching the law? That cannot be truth fully asserted. We know indeed that Lord Kenyon differed on this point diametrically from his great predecessor. Expressing himself in these words, "It is my wish and comfort to stand ' super antiquas vias' — I cannot legislate, but by my industry I can discover what my predecessors have done, and I wilL tread in their footsteps." We cannot deny the conscientiousness of this statement, but as a precept it is psychologi cally impossible to follow it. It was an easy matter for Lord Kenyon to make this statement after Lord Mansfield had practically created commercial law, justify ing himself in those memorable words " 'Quicquid agant homines ' is the business of courts, and as the usages of society alter, the law must adapt itself to the varying situations of mankind." It is because the lawyer is a man learned