Page:Harvard Law Review Volume 12.djvu/219

THE LAW AND ITS LIMITATIONS. 199 ure. The result is that, while in all other professions the half of art may be taught, but the artist needs the whole, the art of decid- ing cases at common law is limited to that part which can be taught. What the judge or the lawyer cannot explain to some one else, he has very little use for. Every one has heard of the dryness of the law, and this is what the expression means. The lawyer instinctively limits his point of view and his mental processes to those that are transferable, to those that he can explain and teach to some one else. It may perhaps be suggested that all reasoning is transferable so that another can understand it. But if the intel- lectual ability to deal with new data is taken as the test for reason- ing, this is very far from true. Reasoning in this sense has two steps : first, sagacity, or the ability to pick out the important facts which generally constitute the minor premise of the syllogism; and second, learning, that is, the ability to recall readily all the known consequences, concomitants, and implications from those facts which generally constitute the major premise.^ The first step is the more difficult one. It is the part that requires insight; it is the part that cannot be taught. Take, for instance, a decision in another profession. On the third day at Gettysburg, General Hunt, the Federal Chief of Artillery, came to the conclusion that the Confederate cannonade was intended to produce a reply from the Union guns until their ammunition was exhausted, prior to an ad- vance of the Confederate infantry in force. He accordingly applied to headquarters for permission to cease firing, that he might re- serve the Union ammunition.^ The correctness of his decision is now a matter of history. The major premise, the rule that when the enemy is trying to exhaust your ammunition, you must reserve it, is something that any man could learn. The minor premise, the fact that the enemy was then and there trying to exhaust the Fed- eral ammunition, was a fact to be picked out from all the perplexing incidents of a great battle, — a fact that could not be taught, and that at least one corps commander on that day failed to realize.^ Suppose, now, for a moment, that General Hunt, when he went to headquarters, instead of going as a soldier to a soldier who knew how to value a soldier's opinion, had felt the burden on him ^ James, Psychology, pp. 353 et seq. 2 Battles and Leaders of the Civil War, Vol. III. pp. 372-374. ' Hazards' batteries (the artillery of the Second Corps), acting under instructions from their corps commander, had exhausted their long-range projectiles before the Confederate infantry began to advance, and with the exception of a few shots were silent until the infantry was within canister range. lb. 375. 2^ GEORGE R. WA- • -^ COUNSELOR AT 59 WALL STrt.^r NEW YORK