it. Memory would be helped, by being lightened of its present load, for nothing is so valuable an aid to remembering as a sharp definite system of classification. But the whole purpose of the student is not to answer examination tests, nor even to get his legal formulæ so into his head as to make them quickly available for legal practice. For the purposes of successful litigation it would be sufficient to make sure of the code in use in the place which gives the law for deciding the cause, and if such were the only end the student had in view it does not seem requisite that he should learn jurisprudence at all. But if we are agreed that jurisprudence should be learned, the student should learn it not just by the easiest, but rather by the most thorough practicable method, and it may well be argued that if he does not thus approach it on scientific lines he is not really learning it at all. At the best he is only mastering its results, as a schoolboy might memorize physical laws without understanding the process of inference by which these were obtained. If one compares, for example, the study of a treatise on jurisprudence by a youth to whom this is his first introduction to legal ideas, with a study of the same treatise by a mind matured through acquaintance with various separate legal principles, it is not clear that to the former the cases cited will be merely illustrative, while to the latter they will be the basis in experience from which the more general principles arise? To say this is to say that the latter will be acquiring a science, while the former will be collecting more or less impressive anecdotes. Most teachers of law will, I think, agree that the educational value of this subject is enormously greater when it is thus approached by a more developed mind. Thus the general conclusion to which our argument has conducted us is that, as usual, the truth lies somewhere between two extreme positions. It may be briefly summarized: A certain element of jurisprudence must enter into the intelligent teaching of law from the very outset. Just as history quite divorced from some general principle of human progress must degenerate into a barren chronicle of facts, so law expounded without reference to the great concepts of human civilized relationship must become a mere study of special legal procedure: It is not possible to examine the profound problems of contract, for example, without raising at least by implication some philosophic issues about the origin and nature of "right," nor to consider the criminal code without noticing how at one time and place punishment was intended to be retributive, at another to be merely deterrent and amelioratory. Such instances are typical of many more. It is safe to say that no competent instructor, dealing with such subjects, even avoids or tries to avoid all excursions into that " comparative law" which comes so close and often glides into jurisprudence. As De Quincey said about casuistry, we may avoid the name, but we cannot avoid the thing. This does not, however, by any means imply that jurisprudence as a special field should be entered upon at an early stage of the course. The analogical case of "philosophy of history" is here both an example and a warning. He who should begin with spacious generalizations about human progress, and should use actual historical facts merely to exemplify his initial dogma, would be as much to blame as the mere chronicler. Theory must be tentative, must proceed with an ever watchful eye upon those concrete phenomena which it is intended to explain, and the phenomena themselves must be brought before the learner as the material upon which the philosophic structure is to be built up. The very questionable character of some of our speculations both in history and in jurisprudence forbids us to lay these down as something to be taken for granted, and, even though they were as certain as they are doubtful, much of their value would be missed by having them forced upon learners at the outset rather than patiently extracted from contemplation of the facts. Different students will need to be protected in different degrees from the risk of taking short-cuts to knowledge, and it may be that for some jurisprudence should come earlier than for others. But the average case, for which academic programmes should always be drawn up, is that of men who emphatically require to be made conscious through preliminary discipline in the concrete problems of the large issues that jurisprudence will help them to solve. What teacher of inductive logic, for instance, has not been driven sometimes to despair by having to expound the logical method of science to pupils who have had no adequate preparatory grounding in at least one or two sciences, such as physics or chemistry? At every step he must stop to make clear from chemical or physical examples what that process of thought is about which logic offers a theory. In other words he must impart a knowledge which he ought to have been justified in assuming. But the value of taking up jurisprudence as a subject by itself when the mind has thus been prepared to appreciate it ought to be quite incalculable. It is just an aspect of that unifying of knowledge which is our goal in every scientific pursuit. "Concepts," said Kant," without percepts are empty; percepts without concepts are blind." It may not be from experience, but it is undoubtedly in experience that our knowledge takes its rise. Not until the empirical phenomena are brought under the illuminating range of great general ideas can we be said to know them, but not until the phenomena are first presented can the ideas be brought to bear. Thus the problem about jurisprudence does not stand alone. It is a particular case of the problem of education as a whole. On this question we do well to learn from Plato, that old seer whose vision into some laws of mental growth none of the moderns has yet surpassed. In a beautiful passage of The Republic we have set before us the twofold process of the mind as the " way up" and the "way down." We begin, Plato says, with the careful observation of particular circumstances, which we group together hypothetically under some connecting principle, of which we are by no means sure, but which strikes us as a handy bond of union to make our material more easily managed. These hypotheses are in turn grouped under hypotheses of wider generality, corrected or transformed as new data come to light, retained only so far as they are found to fit the facts, but with greater and greater confidence as more and more facts take their place within them. This is the "way up." But our hope is ever to reach the summit, where all the phenomena will be seen to arrange themselves-without any exceptions-under a great architectonic system. This would be the ideal of knowledge, and when we attain to it we shall be able to retrace our steps, holding our principles no longer as mere hypotheses but as eternal and irrefragable truths, and to pursue our way down" from the general truth to its particular exemplifications. This end is, of course, in every science as yet imperfectly realized. In no science, however, deserving of the name, has it been wholly missed. The provisional hypotheses of the "way up " are like that provisional jurisprudence which I have suggested as necessary to law in all its stages, for to ignore it is to work with percepts that are blind. But to harden these hypotheses prematurely into dogmas is to work with ccncepts that are empty. The burden of this article is that in jurisprudence as everywhere else the " way up "must be taken before we attempt the "way down." Dalhousie University, 66 HERBERT L. STEWART. ROMAN CANON LAW IN ENGLAND. By CHARLES P. SHERMAN, COUNSELLOR-AT-LAW, BOSTON.* (Continued from July issue.) 2. The Canon Law and Equity. In the reign of the same King Richard II (13771399), when, in the last quarter of the 14th century, it was forbidden to longer cite the Roman law in a Common law court, a new and distinct court was created by statute 17 Richard II, traces of which can be found in the preceding reign of Edward III—namely, the Court of Chancery.10 Probably in part it grew out of the conflict of the courts of Common law with the ecclesiastical courts. This new court-the Court of Chancery-acting on 'the principles of the Roman law, took to itself jurisdiction as to trusts involving real property, leaving until very modern times in England the execution of trusts of personal estate, committed to an executor or administrator, to the jurisdiction of the ecclesiastical courts. Perhaps this prohibition of the reign of Richard II against citing in Common law courts the Roman law was intended to exclude the doctrine as to these trusts or fideicommissa." But trusts became general in spite of efforts to suppress them, and were administered in this special court of Chancery which applied the excluded Roman law. Rules for the regulations of trusts were necessary; trusts had sprung from the Roman *EDITOR'S NOTE.-As stated in the July issue, this article of Professor Sherman is of surpassing interest and value to the parts of Canada now happily invested with the Divorce Law of England, which directly descends from the medieval Canon Law, through the Ecclesiastical Courts and the Civil jurisdictions exercised by them.-B. T. 40 Spence, Equity, vol. i, pp. 84, 345. 41 Spence, Equity, vol. i, p. 345. Fideicommissum is the Roman trust: Sherman, Roman Law in the Modern World, ii., section 712. |