Oliver Wendell Holmes Jr..

The Path of the Law online

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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
connection - text-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.

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Online LibraryOliver Wendell Holmes Jr.The Path of the Law → online text (page 3 of 3)