Page:The Green Bag (1889–1914), Volume 17.pdf/14

 A SCIENTIFIC SCHOOL OF LEGAL THOUGHT way of thinking of his country, by show ing him that its laws are after all much better than he is inclined to believe, that sound agencies are at work for better things, that the tendency is clearly and faithfully towards improvement. I would give him a hopeful for a despairing view and turn his animosity to respect and confidence. Here is, indeed, the opportunity of the patriotic lawyer; it is in his power to give effective help towards saving the country from perils more serious than any growing out of dif ferences of political views, however great, however fundamental, however antagonistic, — the social perils which now darken our skies. It is, I believe, within the power of the legal profession to improve upon the famous but inconsiderate Norman boast, "Nolumus leges mutari," by a saner, safer word of our own people, "We are content." I am then speaking to my fellow-men generally, as well as to those who will find my words familiar enough — familiar enough no doubt to be dispensed with — I am speak ing to the uninitiated, and I shall use lan guage which may not be so familiar to them, and hence may be worth using; but it must be language which they will in substance understand. I begin then by saying that the objection laymen mostly raise, which in effect is that our laws do not conform to the pursuits of men — that they are largely a priori law, and so are not founded upon experience — while containing some truth, enough indeed to give it plausibility, has not the foundation, and especially has not the hopeless aspect, which they give to it. It is, I am sure, something to say and worth making clear, that most of the rules of law which now appear to be a priori were in their origin adopted from .experience, for that is to show that the aim of those who are respon sible for these rules has been right. These rules at first certainly followed the pursuits of men, and hence, so far at all events, are consistent with sound theory. A few, wellscattered, but simple illustrations, drawn

from affairs of every-day life, will enforce the point. The first shall relate to property in land, the particular subject of annoyance to my layman neighbor. "Are not these laws of real estate archaic?" asks my friend. Yes, some of them are — some of the most char acteristic, some of those in most common operation. But if these are archaic, as they are, they are so because they are feudal or relate to feudalism; which is only to say that once they had in them the life of the time — they started out and lived for cen turies on sound theory. And when at length that life began to die out, and the rules to become in effect a priori, remedies more or less efficient, perhaps I ought to say more or less blundering, but still well intended, were applied until finally little was left of the feudal idea but a shell — a lot of names and bare survivals, which will yet be dropt if lawyers are faithful to their calling and legislators are properly informed. "But there is more than that in it," replies my friend. "Why," he asks, "should there still be differences between real and personal property, why for instance between the drawing of deeds and of wills in disposing of the two kinds of property?" As for the broader question, it should help the inquirer to a proper frame of mind to be assured that legislation is gradually removing the dif ferences — that the tendency is right, and that therefore he may look with confidence to a future not far off when all but the essen tial difference between land and goods will have disappeared. Obviously the business must proceed with caution; to attempt at a stroke to settle the matter might be pro ductive of more mischief than good. And then in regard to the particular question of the difference between wills and deeds: in so far as that question has not been answered already it should be said that wills escaped in great measure the laws of feudalism, by having been shut out of the feudal economy. Wills of land came into existence when the light of feudalism had gone out; and so the