ON THE History and System of the COMPILED BY ROSCOE POUND STORY PROFESSOR OF LAW IN HARVARD UNIVERSITY SECOND EDITION BOSTON THE CHIPMAN LAW PUBLISHING COMPANY 1925 PREFACE TO THE SECOND EDITION In 1899 I was called on to give a course in the history and system of our law for college students. After some experimenting with lectures and an outline of prescribed readings, it seemed desirable to have extracts from the sources referred to and some other materials before the student in the lecture room in such form as to serve not merely for illustration but as the basis for class discussion. Accordingly, a short compilation of extracts was made which has gradually expanded into the present book. For some years the extracts were mimeographed and given out in parts. Thus it was possible to make changes and additions from year to year until in 1904 the increased numbers taking the course required that the readings be put in print. Accordingly, the first edition, published in that year, represented the original nucleus as shaped and in parts made over by experience of five years of use. Subsequently notes were kept of changes in and additions to the first edition which appeared desirable, and after I ceased to teach the subject others who used the book made further suggestions. The first edition having been exhausted, the compilation has been completely revised in the light of these notes and suggestions. But it still follows the lines and in the main embodies the contents of the mimeograph compilation of 1899. Primarily the purpose of these readings is to provide in convenient form materials which may serve as a basis for discussion in class and for lectures and explanations which, unless the matter is before the student at the moment, would be abstract, if not unintelligible. The first edition has been used also by first-year students in law schools who desire a survey of the history of the common law, and some preliminary view of its system. The needs of such students have been taken into account. But those who use the book in this way are recom-. mended to read the first part of Pollock's First Book of Jurisprudence in connection with the first chapter, Jenks's Short History of English Law in connection with the second chapter, the second part of Pollock's First Book of Jurisprudence in connection with the third chapter, Warren's History of the American Bar in connection with the fourth chapter, and Holland's Elements of Jurisprudence or Salmond's Jurisprudence in connection with chapters eight to twelve. In using such a compilation certain cautions are required. One who uses it should have a teacher or else should read with his eyes open and think critically as he reads. In the first place, the extracts are not always in accord with each other or with the ideas the editor has expressed in the insertions in smaller type. Perhaps it need not be said that choice of extracts proceeding on different theories has often been made deliberately in order to provoke thought and inquiry. Again, the historical material in the extracts from Blackstone and Kent must often be taken with caution and sometimes is valuable only as showing the ideas of legal history which governed legal thinking in a past generation. Moreover, the apocryphal reasons given by Blackstone and his imitators for doctrines which rest on historical grounds only must be scrutinized carefully. Where experience has shown that false impressions are likely to be formed which reading or instruction will not readily remove, notes have been inserted to challenge the attention of the student at once. But without such notes, the reader should weigh all statements by his knowledge of history, philosophy, ethics and the social sciences. What has been said as to the purpose of the compilation and the manner of its origin and growth will suffice to explain its contents. The historian may well wonder that some things are included and others excluded. As to these, the test of use in class has seemed to show what was best adapted to provoke profitable discussion. But little has been included as to the history of particular departments and particular doctrines, since here, especially in the law of property, history is a necessary part of the ordinary dogmatic instruction. With more reason, the jurist may say that the system is very scanty. No system is attempted in the law of torts, and elsewhere an elementary outline only is suggested. More than this seems unprofitable for beginners, since system, to be apprehended, must come after the student has some concrete materials with which to fill it out. Perhaps an apology is due for making use of the translation of Bracton in Twiss' edition. Until Bracton's text is settled, it can hardly be profitable to make translations of one's own. But the unwary should be referred to Professor Vinogradoff's paper in 1 Law Quarterly Review, 189. Grateful acknowledgment is made to the authors and publishers who have generously permitted the use of extracts from modern books. Every one who has to do with either the history or the system of our law is under a debt to Professor Wigmore. Beyond this, however, I am indebted to him for several important suggestions. My colleague, Professor Joseph Warren, and Professor H. W. Humble, of the University of Kansas, have also assisted by valuable criticisms. CAMBRIDGE, October 1, 1912. ROSCOE POUND. |