按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
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 force controlling the conduct of men。 Read the works of the
great German jurists； and see how much more the world is governed today
by Kant than by Bonaparte。 We cannot all be Descartes or Kant； but we
all want happiness。 And happiness； I am sure from having known many
successful men； cannot be won simply by being counsel for great
corporations and having an income of fifty thousand dollars。 An
intellect great enough to win the prize needs other food besides
success。 The remoter and more general aspects of the law are those
which give it universal interest。 It is through them that you not only
become a great master in your calling； but connect your subject with the
universe and catch an echo of the infinite； a glimpse of its
unfathomable process； a hint of the universal law。
End