Page:The Green Bag (1889–1914), Volume 15.pdf/196

 Scholarship the Handmaiden of the Lawyer. feel in reading Story like one of the unscholarly if older members of the Mobile Bar, who said, "You will find a statement of law that promises well, and then in the middle of a paragraph the rascal"—except he put it with an adjective besides—"will have a lot of old Latin that you cannot make head or tail of." And yet therein is the value of Story's contribution to our subject. He studied the civil law and showed how much common law owes to it. And this is of special inter est to us, because, if you notice, much of the advance and improvement in jurisprudence is coming from adopting the forms or princi ples of the civil law, and this movement will continue. The fusion of Germanic and Ro mance institutions makes up much of our jurisprudence, as is shown so acutely by Oli ver Wendell Holmes, recently elevated to the Supreme Court of the United1 States, whose book on Common Law no lawyer can afford to neglect. But any historical study of law is incomplete without recognizing the third, and perhaps greatest name of all, Sir Henry Maine. He and his successors have taught us to find the origin of law and customs, quaint and curious as they often are, in times before the Germans and the Ro mans separated from the old Aryan stock. His Ancient Law is one of the most interest ing and valuable books ever written, a veri table classic, and even the later writers who

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are studying primitive races of other stocks are merely following his lead. Such inquir ies are teaching us at once the origin and the philosophy of law, and in this sense scholar ship is not so much the handmaiden as the mother of law. I have said that whether advocates, judges or text writers, we are becoming case law yers, and yet we instinctively feel that this is not the highest type. When we wish to recall great legal names, they are rather Hardwicke, Mansfield, Marshall, Webster, Choate, Story, John A. Camp bell, and we might add some less known but great lawyers, nearer home. They were not case lawyers, but dwelt on princi ples, with ever widening horizons. I think the antidote of our tendency to study law only as an art is to be found in remem bering that it is also a science, and in the study of its literature, its origin and its his tory. But I do not wish to have you think on this occasion what Lord Ellenborough once said to a tedious lawyer when the time came for adjournment. The barris ter asked when it would be the court's pleas ure to hear him further, and the judge replied that pleasure had long since been out of the question, although it was the court's duty to do so at the next sitting. Therefore the plaintiff rests.