The law embodies the
story of a nation's development through many centuries, and it
cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what it
is, we must know what it has been, and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand
the combination of the two into new products at every stage. The
substance of the law at any given time pretty nearly [2]
corresponds, so far as it goes, with what is then understood to
be convenient; but its form and machinery, and the degree to
which it is able to work out desired results, depend very much
upon its past.
In Massachusetts today, while, on the one hand, there are a great
many rules which are quite sufficiently accounted for by their
manifest good sense, on the other, there are some which can only
be understood by reference to the infancy of procedure among the
German tribes, or to the social condition of Rome under the
Decemvirs.
I shall use the history of our law so far as it is necessary to
explain a conception or to interpret a rule, but no further. In
doing so there are two errors equally to be avoided both by
writer and reader.
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