all who have thought or written about law, and may possibly have been used in Egypt under the Fourth Dynasty, is most familiar to us as that employed with boldness and spirit by Jeremy Bentham, and subsequently proclaimed by the school he founded to be the only helpful mode of handling the subject. That school rendered a service to legal study in England by the keen east wind of criticism which they unloosed to play upon our law, and which ended by uprooting a good many old and probably rotten trees. They roused an interest in the discussion of general legal doctrines which had been wanting during the first three quarters of last century. But they fell into two grave errors.

They laid the foundations of legal science in the socalled Theory of Utility, which, be it sound or unsound, has nothing to do with the Analytic Method, nor with Positive Law. In the first place, it is a theory of human action which properly belongs to ethics or psychology; and secondly, in so far as it can be deemed to affect law, it affects neither the classification and exposition, nor the application of law (except in so far as it may subserve interpretation), but the making of law. That is to say, it belongs not to the jurist but to the legislator. Its place is that of a practical guide to the science we call the Principles of Legislation. But in this application it is no new discovery, for all legislators have at all times professed, and many have honestly sought, to be guided by it. Expediency, to use the older and less formal term, is a principle obvious in legislation and dangerous in law, for though the commentator may properly use it, the judge may readily abuse it. That Bentham, who was first and foremost a reformer, should incessantly insist on the doctrine of utility, till he almost crushed his legal analysis under the weight of his ethical theory, was perhaps natural. He was really trying to create a Theory of Legislation. But John Austin, the most prominent of his professional disciples, was a writer on law rather than a reformer, so in him the fault

is less excusable. Indeed, Austin pushed the habit further, for he must needs, after basing Law on Utility, identify Utility with the Law of God, in doing which he wanders off into the field of Natural Theology, and virtually repeats the error, which he had censured in the Roman lawyers, of assuming a Law of Nature as the basis of legal doctrines. So that Bentham and he are not unjustly described by the Germans as the authors of theories of Natural Law.'

The second error of this school was that of relying too much upon current English notions and terms. They did not extend their view far enough either into the past, or over the legal systems of other times and countries. Bentham was, to be sure, chiefly occupied with schemes of reform, and did not profess to be a jurist. Austin deserves credit for having gone to Roman law, and sought in it those general ideas in which he found, or thought he found, English law lacking. Unfortunately he did not fully master the Roman system; and his overweening self-confidence betrayed him into a dogmatic censoriousness which was unbecoming even when he was exposing the errors of Blackstone, and was still less pardonable when he poured scorn on the legal luminaries of Rome. He did not perceive how deep some of the difficulties of legal theory lie, nor that there are some conceptions which it is safer to describe than to attempt to define. Hence his solutions are sometimes crude, and his efforts, in themselves most laudable, after exactitude, are apt to fail for want of subtlety. On several fundamental questions, such as the origin and essence of law and the nature of sovereignty, Austin is palpably wrong, and the most eminent of those later writers who started as his disciples have been largely occupied in disclaiming and correcting his mistakes.

The really great merit of the English Analytic School -a merit which was no doubt the main source of its influence, but which we are now in some danger of

forgetting-was its destructive energy. When Bentham began his career, case law, which reigned supreme, was by the legal profession generally, though of course not by such a man as Lord Mansfield, regarded as a mere string of precedents. No idea of philosophical arrangement, much less of literary finish, had begun to work upon the mass

'Quum neque Musarum scopulos quisquam superarat,
Nec dicti studiosus erat.'

Blackstone had indeed rendered the immense service of presenting within moderate compass and in graceful diction a complete view of the law. But he brought an insufficient grasp of history and philosophical principle, and still less an exact analysis, to his exposition, finding little to criticize and nothing to require amendment in rules and a procedure which half a century later few ventured to justify. This genial optimism, which was satisfied with any explanation, because it took the law as it stood to be the best possible, provoked Bentham. He writes with the air of one who does well to be angry; and the tradition descended to Austin, by whose time the grosser scandals of the law were beginning to be removed.

Between Bentham and Austin there is one conspicuous difference 1. Bentham had not only a vigorous but a fertile and inventive mind, acute and ingenious, if sometimes warped or liable to become what is now called 'cranky.' He drops plenty of good things as he goes along. Austin is barren. Few or no suggestive thoughts are to be gathered where he has passed. His dry, persistent iteration, with its honest struggle after precision of terms, has a certain value as a mental discipline, just as it tests one's powers of endurance to traverse a stony and waterless desert. An old Scottish lady consoled her friend, who had been dragged two

1 Some excellent remarks on the intellectual characteristics of Bentham may be found in Mr. Leslie Stephen's English Utilitarians, vol. i (1901).

miles in a broken carriage by runaway horses, with the remark that it must have been a precious experience. But it is generally better to get one's discipline from books which also yield profitable knowledge. Of this there is in Austin nothing which may not nowadays be found better stated elsewhere. Most recent authorities are now agreed that his contributions to juristic science are really so scanty, and so much entangled with error, that his book ought no longer to find a place among those prescribed for students.

How then, it may be asked, did it happen that Bentham and even Austin made a great impression upon some powerful minds in the last generation? Bentham did, because he was the first man who had the courage to denounce the artificialities, absurdities, and injustices of the unreformed law and procedure of England. No small part of the credit for the reforms which Romilly, Brougham, and their fellow workers carried out belongs to the man who had begun to call for them full thirty years before. Austin did, because in his time systematic legal study, and in particular legal education, were almost extinct in England. There was no legal teaching either in the old Universities, or in London. Though the grosser abuses of procedure had been removed, yet the subtleties of special pleading, as well as the long-winded and highly artificial intricacies of conveyancing, still flourished, and the law was regarded as a forest of details through which it was useless, even if possible, to drive paths for the student to follow. A disciple of the old reformer who brought to the novel enterprise of teaching and systematizing law a faith in the reformer's doctrines and a zeal for general principles, not unnaturally received the sympathy and the deference of the eager youth who believed, and rightly believed, that the practice of the law, as well as its substance, would gain from the application of an independent and fearless criticism. to it. By this service Austin has earned our gratitude, and deserves to be remembered with respect. So, though

the legal writings of Bentham and his disciples have now only a historical interest, we must not forget that they stimulated men to handle law in a new spirit, and that those whom they influenced had much to do with the establishment of the modern schools of law and the introduction of new methods of preparation for professional work.

The third method is the Historical. Instead of taking law as a datum, like the two other previous methods, it seeks to find how law sprang up and grew to be what it is. It sees in law a product of time, the germ of which, like the germ of the State, exists in the nature of man as a being made for society, and which develops from this germ in various forms according to the environing influences which play upon it. Although law may not have been created by the State, it tends as it grows to become more and more closely associated with the State as a function of the latter's energy. Though its leading doctrines and its fundamental institutions are in some respects essentially the same in all civilized communities, still every given system is, in the historian's view, for ever changing, growing, and decaying, both in its theory and in its substance, i.e. both in the ideas which create and underlie the legal conceptions and rules, and in the particular forms which those rules have assumed no less than in the institutions by which such rules are put in force.

The utilities of the Historical Method as applied to any given system of law are two.

It explains many conceptions, doctrines, and rules which no abstract theory or logical analysis can explain, because they issue, not from general human reason and the nature of things, but from special conditions in the country or people where the law in question arose. All law is a compromise between the past and the present, between tradition and convenience. Hence pure analysis, since it deals with the present only, can never fully explain any legal system.