llheYourigMan and The Law Simeon E.Baldwin iiumuimuiuuiBi COPY I CORNELL LAW LIBRARY QJortifU Slam i'rlynnl Hibtrarg Cornell University Library KF 297.B18 The young man and the law / 3 1924 024 523 445 THE YOUNG MAN AND THE LAW THE MACMILLAN COMPANY mw YORK • BOSTON ■ CHICAGO • DAUAS ATLANTA • SAN FRANCISCO MACMILLAN & CO., LiMmtD LOHDOH • BOMBAY • CALCUTTA USLBOURNB TH£ UACMILLAN CO. OF CANADA, Ltdw TORONTO THE YOUNG MAN AND THE LAW SIMEON E. BALDWIN, M.A., LL.D. Professor of Law in Yale University; Meml>er of the National Institute of Arts and Letters, and of the American Philosophical Society ; Fellow of the American Academy of Arts and Sciences; Formerly Chief Justice and Governor of Connecticut, President of the American Bar Association, of the International Law As- sociation, of the American Historical Association, and of the American Political Science Association ; Author of "Modem Political Institutions," "The American Judiciary," "American Railroad Law," "Cases on Railroad Law," and "The Relations of Education to Citizenship" jeeto gork THE MACMILLAN COMPANY 1920 AU rights reserved OoPTblGHT, 1920 BY THE MACMILLAN COMPANY Set up snd eleotrotyped. Published, Janaary, 1920 I DEDICATE THIS BOOK TO THE MEMORY OF RICHARD DUDLEY HUBBARD, LL.D. Governor of Connecticut Who gave me an early opportunity to serve my state as a member of the Commission to devise a plan for Simplifying Civil^Procedure Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024523445 CONTENTS CHAPrEB FADE I Foreword 1 II Attractions of the Legal Profession . . 5 1. The Majesty of the Law, and the Lawyer as Its Minister 5 2. The Cultivation of the Mind and Heart Incident to the Legal Profession . . 12 3. The Opportunities of the Lawyer for Pub- lic Service and Social Advancement . . 30 4. The Opportunities of the Lawyer for Mak- ing Money 42 5. The Spirit of Brotherhood in the Bar . . 60 6. The Variety of Legal Business .... 62 III Objections to Choosing the Legal Pro- fession 71 1. The Charge that It Leads to Dishonesty and Defense of Guilt 71 2. The Tendency of the Legal Profession to Foster a Spirit of Boughness and An- tagonism 87 3. The Charge that Legal Procedure Is Anti- quated and Unfair 91 IV The Personal Qualities Requisite for Success IN the Legal Profession .... 106 V The Education Requisite for Success in the Legal Profession 115 VI The Ideals of the Profession 142 Index 155 THE YOUNG MAN AND THE LAW CHAPTER I rOREWORD Choosing the profession that suits one's tastes. Roger Minott Sherman's comparison of the law and the ministry. Field of law constantly enlarging. The object of this book, and its order of arrangement. The choice of any vocation, for entering which a long period of careful preparation is requisite, is gen- erally irrevocable. The law is a profession of that character. It ought not to be adopted, therefore, with- out full consideration. Personal preferences and dis- position should be given full weight. That is done best which is done gladly and with feelings of pleasure in the doing. For one to follow a calling which is dis- tasteful, because unsuited to his powers and inclination, is to court failure from the start. Many years ago a theological student at Yale found himself with misgivings as to whether he had been wise in choosing the ministry for his profession. He had some leaning to the law, and wrote to Roger Minott Sherman, one of the leaders of the New England bar, 1 » THE YOUNG MAN AND THE LAW asking whether he could not " be an active and useful Christian and be a lawyer." The reply was that the good of man required that all useful departments of human employment should be occupied; that the legal profession in modern society was necessary and use- ful ; and that the main question for any one in choosing his life work was, What shall I love most to' do? " I am aware," Sherman added, " of the force of habit, and of the deference paid to the maxim, ' choose the employment which is the most useful, and habit will make it the most agreeable.' This maxim is sophisti- cal and erroneous. The enquiry is not, what employ- ment is in itself most useful; but in what can the individual be most usefully employed.'* Habit may mitigate the pains of crossed inclination ; but can never supply that energy whidh is derived from the current of the soul. " ' In this 'tis God directs ; in that 'tis man.' " ^ Sherman's counsel Was asked at about the same time by a successful lawyer of ten years' standing, who was thinking, from conscientious motives, of studying for the ministry. He replied to him thus : " One of the best schools for a practical divine is the bar. The amount of good which a person can perform as a minister if he attains the age of seventy, will be greater if he follows the practice of law for ten years than if his whole life were devoted to the clerical profession. Man must be drawn by the cords of a man: by those principles 1 Beers, Biographical Sketch of Boffer Minott Sherman, Bridge- port, 1882, p. 38, FOREWORD 8 of influence and action -which are in his nature and can be thoroughly known from no book sacred or profane, but are discovered and understood by means of experience alone: he will be a poor practitioner in any fine or mechanic art whose accomplishments are derived wholly from books or theories. . . . Men who go directly from the divinity school to the pulpit are necessarily deficient, for many years at least, in this indispensable qualification for their office. . . . Were you now, sir, to enter upon the profession of divinity, the time you have devoted to the civil law will have been well spent. . . . You would be peculiarly able to render great service to the Christian cause." ..." You ought to follow the dictates of your own heart: your incli- nation should be your rule of duty: you would be most useful in the employment with which you are most delighted." ^ A man must look into his own heart, before he chooses his profession. " Know thyself " is the first and great commandment, at such a time. As Ruskin has said: " We are not sent into this world to do anything into which we cannot put our hearts. We have certain work to do for our bread, and that is to be done strenuously; other work to do for our delight, and that is to be done heartily ; neither is to be done by halves or shifts, but with a will; and what is not worth this efi'ort is not to be done at all." The lavr is not an easy profession. Its field is con- stantly enlarging. If any one can feel that he has mastered it as it stands to-day, he is far from having mastered what it will be ten years from to-day. The period of legal education never ends. The frontier recedes before each new step in advance. 1 Beers, Biographical Sketch of Roger Minott Sherman, p. 32, 4 THE YOUNG MAN AND THE liATT Hard work is the condition of all real success. Pre- eminently it is so to both the student, and the practi- tioner of law. It is not the object of this book either to induce any man to take it up as. his life calling, or to dissuade him from it. It is its object to state fully and plainly both the advantages and disadvantages of the legal profession in the United States, the oppor- tunities which it offers and the risks which it involves, the conditions of success, and the chances of failure. The general scheme of arrangement which has been fol- lowed is to consider first the attractions of the profes- sion ; then the main objections to engaging in it ; then the personal qualities requisite for success in it; then the proper education for it ; and finally its great ideals. CHAPTER II ATTRACTIONS OF THE LEGAL PROFESSION 1. The Majesty of the Law, and the Lawyer as its Minister Relation of law to morals. Natural Law, as defined by Cicero. Custom the source of most law. Functions of Courts and law- yers, respectively, in determining the law. Law reports. The right of parties to suits to employ lawyers. Lawyers are officers of the court. Lawyers prevent many law suits. To bring suit, sometimes a duty. Spinoza's view. Law, our best inheritance. The lawyer as an amicus cwrioe. The word Law is sometimes used to denote both that law which organized society enforces, and those rules of morals which find their support only in what we call the conscience of the individual or the conventions of unorganized society. Cicero, in a lofty passage, describes law in this last aspect. " It is," he says, " not only older than peoples and commonwealths, but of equal age with that God who guards and rules heaven and earth. No law was ever written down that one man should contend with a great hostile force upon a bridge, and bid it to be destroyed behind him, yet none the less shall we judge that Codes acted in that noble way under the law and empire of fortitude; nor if, in the reign of Tarquin, 6 THE YOUNG MAN AND THE LAW there was no written law of Rome against adultery, did he nevertheless break an eternal law when he offered violence to Lucretia. For there was a reason proceed- ing from the nature of things, impelling to the right and dissuading from the wrong, which in fine begins to be law not when it is written, but when it originates. But it originates simultaneously with the divine mind. Wherefore the true and chief law apt for commanding and obeying is the unswerving reason of highest Jove." ^ Law as administered by lawyers, is something narrower than this. It consists of rules of human conduct which organized political society recognizes and undertakes to enforce. But the soul of this law is not force but right. Law in human society is made for man. It is made for beings having in every country — considered as a mass — certain general notions of moral justice. These notions are the unwritten constitutions no positive law violating which can long endure. The same thing is true of custom, and of judicial decisions supporting custom. If they are contrary to moral justice, the day will come when they will be abro- gated, if not by legislation nor by disuse, then by the courts themselves. Standards of social approval, in respect to law in all its senses, may change from age to age. If antiquated morality and antiquated law do not disappear together, one does not long survive the other. As Sir Frederick Pollock has remarked, "Legal justice aims at realizing 1 Cicero, De Legibus, Lib. II, CaJ). 4. Cf. ibid. Lib. I, Cap. XV, quoted infra, on page 147. ATTRACTIONS OF THE PEOFESSION 7 moral justice within its range, and its strength largely consists in the general feeling that this is so. Were the legal formulation of right permanently estranged from the moral judgments of good citizens, the State would be divided against itself." ■*■ The power of recognizing and enforcing law in the United States is vested in the courts. Our legislatures make part of this law; the customary rules of conduct approved by the community, and accepted by the judicial authority, make another and greater part. For ascertaining what it is at any particular time and how it applies to any particular case, the decisions of the courts are the ultimate authority. The more im- portant of those rendered in each State and in the United States are officially published from time to time, under the name of " Reports." They constitute in each case the ground of a judgment which secures the termination of a controversy in a particular manner ordered by the courts, after hearing from lawyers rep- resenting each of the opposing parties. They are often substantially an adoption of the line of reasoning pre- sented at the bar on one side or the other. It is the function of lawyers to put their clients' cases before the court, and that of the judges to dispose of them according to law. Humian experience has shown that judges need the help of lawyers to aid them in coming to just conclu- sions. Hence in most of the United States there is no right to practice law except by a grant or license from 1 Pollock, First Book of Jurisfrudence, London, 1896, p. 31. 8 THE YOUNG MAN AND THE LAW the State. Such a right is in the nature of a public franchise.^ In England, for centuries, men had to plead their own causes. If one who was ignorant or tongue-tied sued or was sued, he must nevertheless speak for him- self. His adversary had a legal interest in the dis- advantage due to his failings in these respects. ^ It was found that this was not seldom the occasion of great injustice. Gradually the law was changed, and it became first the general rule and afterwards the uni- versal rule, that parties to a lawsuit, whether it were civil or criminal, had the right to appear by counsel. Regulations were also adopted to secure to those who desired to- enter the bar adequate opportunities for learning the law, and to require of them proof of good character, to be established by the favorable opinion of those already admitted to the profession.^ From the days of the earliest settlements in the United States, it has been generally recognized here that the institution of the bar made for good govern- ment. It promoted justice, and the lawyer was there- fore given a certain stattM in the official organization of the judicial department. Every American lawyer is a minister of justice. He is an officer of court as fully as the Judge on the bench, or the sheriff who preserves order in the proceedings, or the clerk who records ij» re Co-Operative Law Co., 198 New Tork Law Reports, p. 479; 92 Northeastern Reporter, p. IS. ' 2 Maitland and Montague, edited by Colby, A Sketch of Eng- lish Legal History, New York and London, I91S, p. 94. 8 O'Brien's Petition, 79 Connecticut Latte Reports, p. 46. ATTKACTIONS OF THE PROFESSION 9 them. He has a longer tenure of office than any of them. He holds for life. He never need retire, and never can be recalled, except as the, court may disbar him, after a hearing, for some grave offense. He may, however, be censured by the court, or other- wise subjected to discipline which stops short of disbar- ment. In arguing a cause, he must conform to the proprieties of the occasion and the settled rules of judicial procedure. As an officer of the court he speaks in a certain sense by its authority, and always in its presence. It is the duty of the Judge to interpose if he abuses his privileges by urging considerations obviously foreign to the cause, or invoking prejudice instead of reason. Such a course may not only call upon him a rebuke from the bench, but cost his client a verdict, should he afterwards obtain one. There are words and appeals which, once uttered to a jury, do their work on the instant beyond all power of remedy.^ It has been sometimes said that the existence of lawyers made men litigious.^ To one who feels that he has been wronged, the power to get the opinion of a competent and disinterested adviser as to whether he has been or not and, if it be favorable to his claim, the opportunity to have it presented in proper form for the consideration of a court, certainly increases the number of meritorious actions brought. It probably 1 See Hennessy vs. Metropolitan Life Ins. Co., 74 Connecticut Law Reports, pp. 699, 708-710. 2 See a discussion of this subject in Cicero, De Lec/ibus, quoted infra on page 151. 10 THE YOUNG MAN AND THE LAW lessens the number of groundless actions. A lawyer Is in honor bound to bring no suits for which he thinks, on full consideration, there is no reasonable chance of a favorable issue. Probably every lawyer in large prac- tice oftener advises that claims be settled or abandoned than that they should be the subject of a suit. It is also true that insistence on one's rights, even at the expense of a law-suit, may sometimes be a duty. Society rests on a body of social rights. They must be maintained inviolate, if social health is to be preserved. Because the Jewish authorities had excommunicated Spinoza for heresy, his right to share in his father's estate was denied by his sisters. He insisted that it was perfect, and took legal proceedings to establish his title. It was thus established, and he then released the property to his sisters, stating his opinion as to the principle involved thus: "In a State where just laws are in force, it is not only the right of every citizen, but his duty towards the common weal, to resist in- justice to himself, lest peradventure evil men should find profit in their evil doing." ''■ Law, as a social necessity, cannot be guarded too carefully. It is our best inheritance from former gen- erations. It is what gives value to life and property, because it is all that assures their possession. As Cicero said to the judges before whom he was pleading for Caecina : " To one who succeeds to an estate a greater inheritance comes from the principles of right 1 Quoted by Johnson T. Piatt, The Assertion of Bights, Boston, 1884, p. 7. ATTRACTIONS OF THE PROFESSION H and law, than from those by whom this estate was left to him." 1 The lawyer and the courts share the high function of keeping these principles inviolate, and of enforcing them whenever called upon to do that service. Nor to entitle the lawyer to be heard at the bar is it necessary that he should appear there to speak for a client. He is not only an officer of the court, but a friend of the court. As an officer he represents the interests of others. As a friend — amicus curia — he has the right to offer suggestions when they are made simply as aids to justice. This term describes a lawyer who, in a controversy in which he does not appear for either side, volunteers, with the consent of the court, to state what he conceives to be the law which should govern the decision. He sees a matter in dispute where he believes that justice might be better done if he declared his own view of the proper disposition of the contest, which Is to be made by the judge. It is a piece of brotherly advice from one public agent to another. An intervention of this sort has often prevented the doing of injustice, or furthered the doing of a completer justice. There was such an incident on the trial of Algernon Sidney for high treason. By the law of England as it then stood (1683) a man accused of that crime could not have the aid of counsel. There was a technical defect in the indictment. A barrister rose, as an amicus curia, and brought it to the attention of the 1 Cicero, Oratio pro A. Owcma, Cap. XXVI. 12 THE YOUNG MAN AND THE LAW court. Chief Justice Jeffreys, who was presiding, overruled the objection on this score (and properly), but added, " We thank you for your friendship." ^ 2. The CuLtivation of the Mmd and Heart Incident to the Legal Profession Its spiritual benefit. The demand for metaphysical and his- torical knowledge. Bolingbroke's opinion. Law constantly changing. Its procedure growing less formal. Less emphasis given to study of ancient technicalities. Comparative Law. Legal traditions. Practice of Rhetoric and Logic. John Adams' advice. Legal maxims only half truths. Dialectic. The spirit of all law is the rule of right rather than of authority. HaUer's view. Lawyers must study into the origin and causes of things, and in a philosophical way. Justinian's description of their work. Forms of procedure have developed rights. Law, both an ab- stract study and a practical art. It promotes a spirit of rever- ence. It has spread political liberty and is now spreading poli- tical justice. Its appeal to the heart and feelings. Here youth is a help. The jury, as a teacher of psychology. Horne Tooke's characterization of it. Legal oratory. It is consistent with con- cisement of statement. Insisting on the main points of argu- ment. Personal honesty. Law, the science of enforceable rights. It limits personal and social duties. To determine these limits, calls on the lawyer for original research. The lawyer finds aid in general literature. His share in legislation. When the poet, Sill, was choosing his vocation, he was at first inclined to the law, on account, he said, of " the benefit which it would be to himself spiritually." " As Kingsley puts it," he added, " we are set down be- fore that greatest world-problem — ' Given self, to find 1 Sidney, Discourses on Oovermment, New York ed., 180S, Vol. I, pp. 343, 334. ATTRACTIONS OF THE PROFESSION 13 God.' So, considering that for such tasks the mind needs every preparation, skill and practice in drawing close distinctions, subtileness in detecting sophistry, strength and patience to work at a train of thought continuously long enough to follow its consequences clear out, and some systematized memory (if for noth- ing but holding and duly furnishing your own thoughts when needed) — I say, seeing no better — or rather, no other — way to gain these but by entering the law, thitherwards I have set my face." '^ The mind and heart of every lawyer, who is in the least degree worthy of the name, must be in some meas- ure strengthened by the tasks which the necessary work of his calling forces him in some measure to perform. In Thackeray's Pendenms, he contrasts two lawyers, one weary of law and giving himself to literature ; the other devoted to law, and so — says Thackeray — la- boriously devoting great talents to a mean subject, to the exclusion of " all higher thoughts, all better things." I do not think that this description of the great satir- ist strikes a responsive chord in the breast of any Amer- ican lawyer. Whatever else the law may be, it is no mean subject of pursuit, and least of all in the United States. Lord Bolingbroke, in describing the legal pro- fession of his day and its general ignorance of history, spoke of it as " in its nature the noblest and most bene- ficial to mankind, in its abuse and debasement the most 1 Parker, Life and Work of Edward Rowland Sill, Boston, 1915, p. 56. 14 THE YOUNG MAN AND THE LAW sordid and the most pernicious. A lawyer," he added, " now is nothing more (I speak of ninety-nine in a hun- dred at least), to use some of Tully's words, ' nisi legu- leius quidem cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum.' But there have been lawyers that were orators, philosophers, historians : there have been Bacons and Clarendons. There will be none such any more, till in some better age true ambition, or the love of fame, prevails over avarice, and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the vantage ground (so my Lord Bacon calls it) of Science, instead of groveling all their lives below, in a mean but gainful application of all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions. And whenever it happens, one of the vantage grounds to which men must climb, is Metaphysical, and the other. Historical Knowledge." An American bar hardly existed when Bolingbroke wrote this, nearly two hundred years ago, but as soon as the legal profession was fairly established here, it recognized the duty and the advantages of cultivating historical investigation. Law is the most enduring creation of civilized society. It endures because it is in a state of perpetual change. It is, however, such a change as is incident to all life. The main structure of the man remains apparently much the same from year to year. The tissues are in- sensibly and invisibly renewed. Only by comparing the ATTRACTIONS OF THE PEOFESSION 15 human frame as it appears at the beginning and at the close of a considerable period of time, do we perceive clearly what alterations have been wrought. It is so with legal institutions. In substance they have come down from former ages. In certain particu- lars they are inherited without change; in more they have become something unmistakably different. The law of a nation is viewed by every generation from its own standpoint. Every generation of judges restates a large part of it from their standpoint. Leg- islation is always affecting the " common " or cus- tomary law. Legal procedure, in both English and American courts, has been made far simpler during the past half century. More and more of its ancient rules have been outgrown, and the framing of better ones confided to the courts. Antique terms of technical de- scription have become less and less the subject of study. All this has relieved the law student of a heavy burden. Down to the last quarter of the nineteenth century, the historical study of English law was commonly made needlessly dry by paying too much attention to what was archaic and obsolete in it. It is true, as Sir Walter Scott has said in Guy Mamwring, that without a knowledge of history a lawyer is a mechanic, instead of what he should be — an architect. Nevertheless that knowledge is pushed too far if it is sought to ex- tend it to petty details of ancient tenures or procedure, which throw no light on modern conditions of legal theory or practice. This has now become the general rule of practice in American law schools? and the §tu- 16 THE YOUNG MAN AND THE LAW dent is no longer forced to spend his mind on such books as Cohe on Littleton or CMtty on Pleading. In fact, in this country they never had the place held by them in England. The American lawyer, viewed as an architect, has also had the advantage of new opportunities for the study of comparative law. A bureau of the American Bar Association has been created to promote it. The truth is more widely recognized of Savigny's position that the law of every country is part of the life of the nation, inhering in its very body, and not to be taken off or put on like a new garment, at pleasure. History and tradition are near of kin. The bar has its uplifting traditions, with which all who enter it are expected to be acquainted. As Professor Wigmore has said, they affect, to a lawyer, the " whole atmosphere of life's behavior." But history is only one of the branches of science that lawyers must cultivate. Rhetoric and logic are two others, whether studied in their technical forms, or sim- ply in outline as universal tools of argumentation. Ability to make a clear statement, to reason well, and to detect the fallacies put forward by another, is the best passport to success for a true lawyer. President John Adams, writing in 1800 to his son Thomas, who had recently been admitted to the bar, gives him this sound advice : " I always rejoice to hear of your Arguing Cases. This Arguing is the way to business. Argue; Argue; Argue; forever when you can, and never be concerned about the ATTRACTIONS OF THE PROFESSIOK H issue, any further than you ought to interest yourself for truth and Justice. If you Speak in public though you lose your cause, it will serve your reputation, if you Speak well, as much as if you gained it. Hard Study and close Application to Business will infallibly increase your Busi- ness till it is Commensurate with your Necessities and affords you a Surplus. Science and Literature will assist your reputation as much as law." ^ Law has certain points in common with mathematics. It proceeds from axiomatic assertions, called maxims. They are too short to be universally true. But so far as they are true, they form an irresistible major prem- ise, when the facts to which they apply constitute the minor one. It is a frequent task for a lawyer to exclude them from the position of a legal premise, because they really are a statement of a rule of morals, only. The law has no remedy for the violation of a moral right unless it be also the violation of a legal right. Otherwise it belongs only to conscience or social opinion to prescribe the penalty. Law falls short of honor. She does not try to force men to be virtuous. Non omne quod licet hon- estum est.^ A maxim may also, when carefully analyzed, prove to be meaningless as applied to many acts, which at first sight it would seem to govern. Sic utere tuo ut alienum non laedas is one of these. Taken literally it would forbid any injury to another's property. I may own a 1 Massachusettg Historical Society Proceedings, Vol. XLIX, p. 466. 2 Digest of Justinian, Lib. L, Tit. XXVII, 144. 18 THE YOUNG MAN AND THE LAW vacant lot between my house and ray next neighbor's. It has never been built on. If I should build on it, it would lessen the sun-light and fresh air which he has been enjoying. Nevertheless the law, and morality also, would not censure me for exercising my right, as owner, to improve my property. It injures my neigh- bor, but it is not unjust to him. One must scrutinize the premises in all argumentation. As Schopenhauer has said, " It is not so easy for any one to think or draw an inference contrary to the laws of logic ; false judgments are frequent ; false conclu- sions, very rare." A lawyer uses logic in coming to his conclusions in matters as to which he may be consulted, which are not brought before a court. He uses " Dialectic " in arguing as to the law aiFecting such matters. Logic is used to get at the truth. Dialectic he engages in to obtain from a judicial authority a decision of disputed points in favor of his client. The lawyer in a dialec- tical controversy often does not himself know whether his client is in the right or not. He often believes that he is and is mistaken. The lawyer on each side often believes that his client is in the right. " Truth is in the depths." ^ It is the business of the advocate to ascertain it, if he can ; but he need not be disappointed if he often fails. The just cause however is seldom lost, if it is carried to a court of last resort. Milton was right when he said : 1 Schopenhauer, The Art of Controversy, etc, Translated by T. Pailey Saunders, London, 1896, pp. 7, 11, ATTRACTIONS OF THE PROFESSION 19 " Who ever knew truth put to the worst in a free and open encounter? For who knows not that Truth is strong next to the Almighty? She needs no policies, no strata- gems to make her victorious. These are the shifts that Error uses against her power." There is nothing higher or better, open to human effort, than the administration of justice and right be- tween man and man, and between man and the State. There may be at times a right, the exercise of which leads to seeming injustice. It bears hard on some particular man; but it is because he has in some way put himself in a false position. The inmost spirit of the law is the rule of right, and the great office of the lawyer and the judge is to enforce it. Albert Haller's parents desired him to study law. He refused because, says one of his contemporaries, " his active mind could not submit to follow a profession which would limit his inquiries ; which entirely depended on precedent and authority ; and which, to use his own quotation from Horace, in a letter to his friend Bonnet, obliged him * Jurare in verba magistri.' " This was a false conception of a lawyer's studies, two hundred years ago, and there would be still less reason for holding it now. In determining what is the rule of right, in any particular case, there is often occasion for a resort to a philosophical inquiry into the causes of things. Lord Chief Justice Mansfield brought into the common law many of the rules laid down by the jurists whose opinions gave its form to the Roman law as Jus- tinian left it. Nor did this great judge stop ^hoft with 20 THE YOUNG MAN AND THE LAW Rome. In his discourse on taking his seat as Chief Jus- tice, he said that Socrates was " the great lawyer of antiquity, since the first principles of all law are derived from his philosophy." Those who have reached an advanced point in the pursuit of any department of science soon perceive that the acquisition of further knowledge of it consists less in gaining new notions or learning new facts than in gaining a better perception of the relations between those which we already possess. Here/the Socratic method of learning appeals strongly to a scholarly lawyer. What is his relation to the State? What does he owe it ? What does it owe him ?,' Such questions of obligation under existing laws and institutions are of deep interest to every man, but es- pecially to one like a lawyer, who stands in a quasi- public position of official responsibility. They are sub- jects to understand the bearings of which clearly a man might profitably study law, though never meaning to practice it. There is a kind of legal scholarship which wastes itself by diffusion, and culminates in vague and uncer- tain generalities. Some one has said that an interest in general ideas is apt to mean an absence of particular knowledge. It was sarcastically remarked of Lord Brougham that he knew something of the laws of every country except his own. Such criticisms are seldom just. In Brougham's case they certainly were not. The best lawyers are those who are capable of taking the widest views, and understand a subject from the ATTRACTIONS OF THE PKOFESSION 21 bottom up. The science which they profess drives them towards a philosophic method of inquiry. They must gain the power of analyzing, of distinguishing, of combining. ^/^The pandects of Justinian commence with stating the office of a lawyer. " Law," it is said, " is the art of what is good and equitable, of which lawyers are de- servedly called the priests, for they cultivate justice and profess a close knowledge of what is good and equitable, separating the equitable from the inequitable ; distinguishing the lawful from the unlawful ; desiring to make men good, not only from fear of punishment, but also the influence of rewards ; maintaining, if I err not, a true, not a pretended philosophy." J./ Whether law is to be regarded as in its origin " the conscious command of a supreme authority, or an un- conscious growth in the life of human society," ^ or as proceeding from both united, is one of those questions which will invite the attention of all law students of a philosophic turn of mind. It might at first sight seem that philosophy had little to do with legal procedure. But the theory of proced- ure at each stage, can only be understood by studying its relation to the history, theology, metaphysics, logic and psychology of the times in which it came to prevail. Its roots run deep, as all will find, who try to substi- tute something that they deem better. The forms of pleading have been in aU earlier societies the creator 1 Dig, Lib. I, Tit. I, de JusHtia et Jure, § 1. 2 Carter, Law, its Origin, Orowth, and Function, New York, 1907, p. vii. 2a THE YOUNG MAN AND THE LAW and definer of legal rights. Of the rules of evidence some have through long ages been the creators of I wrongs. It has been said that proof is the daughter of doubt, and the mother of verity. It has too often been mother to the exclusion of truth and the condemnation of innocence. The reasons for changes of procedure made in the past call for close examination, were it only to assist in determining whether further changes are needed now. Law has two aspe cts. It is an abstract study. It is also a practical art. Those who propose to make it their profession ought to examine it in both lights, but they must, at all events, seek to acquaint themselves with its vital characteristics, as they appeal -to the mind and heart. What is fundamental and permanent in law is most worth attention, because it is either the best of human achievements, or the best endowment of the human race. We may call it the law of nature, or we may give it a name of less dignity and look upon it not as a discovery of something originating in a higher power, but simply as a happy invention of men. In either case it repays the closest study: in either it demands our reverential regard. Reverence for what we feel to be superior to ourselves is one of the greatest qualities of national life. It may take the shape of reverence for God ; for the head of the State; for a military superior; for a superior in wis- dom ; for ancestors ; for age ; for ajicient institutions. For us in the United States, reverence — aside from ATTKACTIONS OF THE PROFESSION 23 that for the divine — is best bestowed on what governs us — laws, not men. It is a great thought for a lawyer, and one never to be forgotten, that his office binds him and enables him to promote reverence for law. That, as Lincoln once said, should be " the political religion of the nation." ^ If any of our laws prove unjust or unsuited to the times, it is easy for us to repeal them; but while they stand, it is the high office of the lawyer to see that they are respected and obeyed. Our common law is a glorious inheritance. Its prin- ciples and history give a renewing power of adaptation to changing circumstances. The task of the nineteenth century was the definition and the spread of political liberty. That of the twentieth is the definition and the spread of political justice. Governor Andrew of Massachusetts, in describing the inherent vitality of the common law, observed that one might say of it, as the author of the Epistle to the Hebrews said of a priest after the order of Melchisedec, that it was " made not after the law of a carnal com- mandment, but after the power of an endless life." ^ Reverence for law is a guaranty of good conduct. Wherever it is predominant as a national trait, it makes for social order. The lawyer who feels such a rever- ence will be unwilling to advise what the law does not sanction, and quick to see whether his client's position is compatible with it. He is himself, also, as an individ- 1 Hill, Lincoln the Lawyer, New York, 1906, p. 44. 2 Hebrews, Ch. VII, 16. M THE YOUNG MAN AND THE LAW ual, restrained by the influence of his legal training from acts of violence. If he is wronged, and satisfac- tion be refused, he knows that the proper remedy to re- claim his legal rights is by process of law. If his client is wronged, he wiU advise that course to him. " Nee juri quidquam tarn invmicum qtiam vis; nee equitati quidquam tarm mfestum est quam eonvoeati homines et armati." •'■ It has been said by Professor Jacks that there is a point in the high development of the human mind, at which reason falls under the law of diminishing returns. The output lessens, or at least increases more slowly. But this can never be asserted of an expansion of what belongs to the heart of man. And here the young man at the bar may exert a power greater than his elders. His feelings are fresher and more at his command. We have Burke's authority for saying that the reasoning powers also are stronger in youth, though the lack of knowledge to work upon is too small to make any great show with. How can the young lawyer excel in seeing or stating the relations of men, when he knows from per- sonal experience so little as to the facts out of which these relations come.'' On the other hand, the kingdom of the heart is open to him, and the opportunity of touching the hearts of others with his stories of a client's wrongs. Here the American bar has one ad- vantage over that of the Continent of Europe though 1 Cicero, Oratio pro A. Cwcina, Cap. XI: "Nor is anything so inimical to law as using force; nor anything so hostile to equity as an assembly of armed men." ATTRACTIONS OF THE PROFESSION 25 not an unmixed one, in our system of trial by jury in both civil and criminal causes. It brings the advocate in close touch with the people. It teaches him psychol- ogy, and gives them, after listening to whatever he may say, a direct share in the government of the country. There was some truth in the sally of Home Tooke, when on trial in 1788, for refusing to pay the costs of vexatiously contesting the election to the House of Commons of Charles James Fox. " There are three efficient parties engaged in this trial," he declared, in arguing his own cause. " You, gentlemen of the jury, Mr. Fox and myself, and I make no doubt that we shall bring it to a satisfactory conclusion. As for the judge and the crier, they are here to preserve order; we pay them handsomely for their attendance, and in their proper sphere they are of some use; but they are hired as assistants only; they are not and never were in- tended to be the controllers of our conduct." ^ More than anything else, trial by jury keeps the art of oratory alive. Cicero said that orators were the smallest class in any community, and rarer than poets. It might almost be said that we should have none in the United States were it not for the triumphs of the bar. Oratory is the child of feeling. The born orator is a sentimentalist, and every lawyer who wishes to shine as a public speaker must cultivate the faculty of forci- bly expressing, on fit occasions, whatever of native sen- 1 Campbell, Lives of the Chief Justices, Boston, 1873, Vol. IV, p. 76. 26 THE YOUNG MAN AND THE LAW timent may serve to give life and strength to what he says. William H. Seward, a day or two after Lincoln had read to him his first inaugural message, said of his chief that he had " a curious vein of sentiment running through his thought, which is his most valuable mental attribute." ^ It was this that gave, two years later, an eternal charm to the Gettysburg oration. But the oratory that might move a jury may weary a judge. The bar of every appellate court, and of every other court proceeding without a jury, is a training school in the art of concise statement. It involves sift- ing a controversy down to what is really material, and then sifting the words down in which that is to be pre- sented to the court. Dean Swift says, in his Tale of a Tub, that " the society of writers would quickly be reduced to a very inconsiderable number, if men were put upon making books, with the fatal confinement of delivering nothing beyond what is to the purpose." The satire is half true, but lawyers have the satisfaction of exercising a profession in which such a confinement is the inexorable rule of argumentation for aU. A speech to a jury must conform to that, as fuUy as one made to a judge, al- though more time and more words may be necessary to impress a thought or proposition upon twelve men than upon one. The aim of argument must be to make the dullest juror understand the line of reasoning which is put forward. But even for juries a lawyer soon learns 1 Charles Francis Adams, An Autobiography , Boston, 1916, p. 96. ATTRACTIONS OF THE PROFESSION 27 the advantages of brevity in speech. To attain it he must spare no pains to emphasize to himself the prin- cipal matters to be presented, and to determine how to put them forward in proper order. He must study condensation. Every case that he tries can and should help him to try the next better. To argue cases with the greatest effect, the speaker must dwell only on the main points. The successful lawyer soon learns this. It makes his success. John Bright once compared his own methods with Gladstone's, thus : " When I speak I strike across from headland to headland. Mr. Gladstone follows the coast line ; and when he comes to a navigable river he is unable to resist the temptation of tracing it to its source." What a man is determines what he says. No one can rise to the highest ranks of the legal profession who is not honest at heart. One of Carlyle's wise sayings, in Past and Present, is this : " How can a man, without clear vision in his heart first of all, have any clear vision in the head. It is impossible." Be it possible or not with other men, it is certainly impossible for the lawyer. His work is to determine what justice is between man and man. For this he must have a clear notion of the principles of justice. They generally will be found to furnish the standards for judging of his client's claim. But law js Tint thp spi'pTifP nf rjgrhts. Tt is the sci - ence of enforceable rights. It teaches the rules of human conduct, which the State deems imperative. Its study is helpful to those who engage in it simply as a 28 THE YOUNG MAN AND THE LAW matter of mental and moral discipline. It marks, to a large degree, the limits both of personal and social duty. Jean Jacques Rousseau has said that " the man and the citizen, whosoever he may be, has no other kind of property to put into society than himself: all his other property is there despite him." ^ But how best does one give himself? Certainly after learning first what he owes, under existing laws. He must pay, before he gives. He can give only what remains after his legal obligations are discharged. Any inquiry as to what those are, in a novel and doubtful case, is an invitation to examine the remotest foundations for their support. A lawyer has an opportunity in this for independent and original research such as seldom comes to those in other professions. It is part of his proper preparation for the formation of an opinion or the argument of a cause, and consequently the time spent upon it is, within reasonable limits, a legitimate subject of charge against his client. Burke said of law that it is " a science that does more to quicken and invigorate the understanding, than aU other kinds of learning put together." But he said also that " it is not apt, except in persons happily born, to open and liberalize the mind exactly in the same proportion." Be this as it may, every lawyer is urged on by powerful considerations of business interest to broaden his views not only by metaphysical studies, but by seeking a wider acquaintance with general literature. In examining witnesses and dealing with judges and I Eouseeau, EmiU, 1772, Vol. II, p. 108. ATTRACTIONS OF THE PROFESSION 29 juries he needs to be a close and quick student of their mental characteristics. He must know more than most men of the course of human conduct in respect to per- sonal rights and wrongs. Reading good novels or poetry is not a bad way of studying psychology and acquiring the ability to put himself in another's place. Another educative force to a lawyer is his special opportunities to take part in shaping policies of legis- lation. There are few laws that do not come from a lawyer's pen. There are fewer still that do not owe their enactment to a lawyer's influence. The maker of a legal change feels the dignity of his position. For all men, as Mr. Lecky has observed, there is a stro educational influence in legislation. The lawyers frame or execute it naturally are the ones to profit this influence most, and most promptly. It gives thJ a better appreciation of what law is and what it oug to be. It leads to authorship in a congenial field the more eflTective because it is of an unambitious kin The lawyers have short avenues to the public mind magazine articles or newspaper interviews, and ma^ take advantage of them. " Men whose professional duties .would render it impd sible for them to write long books, are quite capable treating philosophical subjects in the form of short essa^ and have in fact become conspicuous in these periodicals This fact, according to Lecky, tends to promote tl spread of utilitarian philosophy, which he deems t^ basis of legislation.^ 1 Lecky, History of European Morals, London, Vol. I, p. 131. 30 THE YOUNG MAN AND THE LAW As the lawyer may gain cultivation by helping to make law, so he may gain it by opposing the adoption of laws which is urged by others. He can see better than the members of any other class in the community the effects of an iU considered piece of legislation, and there is no American legislature that does not have before it many projects of that kind. The people, to some extent, have a right to rely on the bar to call attention to the objections which they perceive in them. James C. Carter has thus alluded to this duty and power of the bar in some of these respects : i' Among the evils which oppress society^ there are few later than that caused by legislative expedients under- len in ignorance of what the true nature and function of are, and the eiFective remedy — at least, there is no ;r — lies in an effort to correct this ignorance by knowl- s." ^ The Opportunities of the Lawyer for Public Service and Social Advancement Public service a natural duty. The lawyer is officially always public servant. The necessity for a legal profession. The law- a speaking statute. His natural opposition to absolute ver. His function as an interpreter of laws. His altruistic bk, as a public defender. His place in court. His place as a ce-maker. His place as a ruler; and as a framer of legisla- Preventive legislation. The lessening of the lawyer's social puence since de Tocqueville wrote. Oliver Cromwell, in writing as to the studies which he wished his son to pursue, said that mathematics and 1 Carter, Law, its Origin, Orowth and Function, p. 4. ATTRACTIONS OF THE PROFESSION 31 history should be among them, " for such studies may fit him for public services, unto which every man is born." 1 The lawyer belongs to a profession which has made the most of this birthright, or rather, let us say, of this natural duty. Every member of it, as has been explained in the first section of this chapter, is actually in the public service. He adopts the profession with this in view. He knows that it has been created and privileged, presumably for the public good. A dis- tinguished member of the New Jersey bar (Courtlandt Parker), in an address given in 1881 before the Law School of Columbia University, said that " the motive for the practice of law — the controlling and directing motive — should be a desire of usefulness to our fellow- men, in the capacity of a minister of justice, a manager, and a part of the machinery of civilized society." This machinery is always running. The workshop of the State is open, day and night. The lawyer's part in it is not determined by what he does visibly in the public eye. Coleridge was wrong when, in his Table Talk, he declared that law is a profession inferior to the ministry because it is only necessary for some at some times, while the minister's work is addressed to something necessary for all, at all times. It is necessary for all at all times that the forces for good government should be maintained everywhere in full and constant action. The uses and dpportunities of the legal profession are iMSS. letter owned by John Forster, Letters of Charles E. Norton, Boston, 1913, Vol. I, p. 331. 355 THE YOUNG MAN AND THE LAW not to be measured by what it does actively, so much as by what it does passively and unobserved. It assures the people that an agency of a public char- acter exists which is always near at hand and ready to assure a public remedy for any private wrongs. If in a country like ours there were no lawyers, there would be no safety for business enterprise, and little personal security. In these directions every lawyer is worth ten policemen. He exists to protect the social order. His usefulness to the community therefore reaches far beyond the particular sphere of his professional efforts. It lies primarily, if not mainly, in his being one of a class always standing ready to serve the public in securing the benefits of living under the rule of law. The good of a policeman is measured less by the num- ber of arrests which he may make, or disorders which he may suppress by his active interference, than by his being within call, upon his beat, ready to intervene for the protection of any legal rights, should need arise. The good of a lawyer lies in what he might do, almost as much as in what he does. The bar, by his presence in it, is or ought to be a better agency for maintaining the interests of justice. He makes the battalions heavier that are readier to act, when those interests are imperiled. Law moves with irresistible force, but it must first be set in motion by somebody, and by somebody whose business it is to do this. Cicero quotes as a proverbial saying in his day, that the magistrate is a speaking statute, but a statute is a ATTRACTIONS OF THE PKOFESSION oH silent magistrate.^ So a statute with us would remain silent, were it not for the courts and for the lawyers who start them going, and see that they do their work despite all impediments. When Peter the Great made his round of personal observation to ascertain what modern government seemed to be and could accomplish, nothing surprised him more than the numbers and the privileges of the English bar. There were, he told one of his informants, only two lawyers in all Russia, and he proposed to hang them on his return. From his standpoint, that was no bad policy. The lawyer is naturally unfriendly to absolute power. His whole work is conditioned on the existence of a government of laws, rather than of men. Law is the product and rule of civilization. It may, so far as put in written form, take the shape of an imperial decree, revocable at the imperial will. Where it does, the lawyer's place is a subordinate one. But it is not without large importance there. The decree stands till it is revoked, and can hardly fail, whatever it is, to give occasion f6r differences of opinion as to its interpretation and effect. No such form of words will mean exactly the same thing to every man whom it concerns. No kind of written document can. No man can state a proposition which will convey precisely the same impression to every mind. Each man has his own standpoint in the uni- 1 Cicero, De Legihus, Lib. Ill, Cap. 2. Vereqae cKci, magiitra- twm legem esse loquentem; legem awtem,, mutv/m mctgistratum. M THE YOUNG MAN AND THE LAW verse, and whatever he sees or hears he measures from that. The interpretation of laws is the most important branch of hermeneutics. It calls for the exercise of careful discrimination, and high analytic power. It follows processes of logic. It requires large historical knowledge. Ijt makes much of reasoning by analogy. It is not only one particular decree or legislative act which must be studied. That decree or statute has relations necessarily to the customary rules of social order, which previously were recognized. What those rules were must be known, before it can be determined whether the new act of the lawgiver has affected their operation, and what was the real mischief that this act was designed to remedy. Nov, ex regula jus sumatur, sed ex jure quod est regula pi. In civilized countries differences of opinion as to the interpretation and character of laws are commonly decided by the courts. Their advice is seldom asked in advance. It is seldom given in the shape of a public declaration, addressed to any of the political depart- ments or officials. It is made in the course of a law suit between private individuals or between the govern- ment and a private individual whom the government is prosecuting. It is not made till all the parties to the action have had a fair opportunity to be heard, on every question involved. To give such an opportunity the employment of lawyers is almost necessary. A scientific inquiry can only be advantageously pursued by a scientist. The ATTRACTIONS OF THE PROFESSION 35 lawyer, if competent for his office, is a scientist in his work of interpreting and applying the laws. In free governments, therefore, he is commonly in- vested with what may fairly be called a public office by virtue of his profession. It entitles him to be heard in behalf of others in the courts before which he practices. No one else can be heard except the parties themselves ; and the parties seldom venture to avail themselves of this right. One in that position cannot take in the view-point of the other party, or even of the court and, where he can, he has not had the training which enables him to appreciate what conclusions it involves. The common experience of mankind is expressed by the proverb that he who is his own lawyer has a fool for his client. The lawyer in court is always speaking for others, less able than he to explain their rights. He is, indeed, a sworn altruist. His oath of office binds him to render his best services, if assigned to that duty by the court, as a public defender of prisoners in the dock, who are without means to employ counsel. He has a knightly profession. Whether paid or unpaid for what he does, he is every day fighting other people's battles. The Romans did not hesitate to put forward this fighting quality of the lawyer — this fighting for other men — as his great and true title to public regard. As they state it in their Code : ''■ " Advocates who decide the doubtful fates of causes and by the strength of their 1 Code of Justinian, Lib. II, Tit. 7. 36 THE YOUNG MAN AND THE LAW defense often set up again that which had fallen, and restore that which was weakened, whether in public or in private concerns, protect mankind not less than if they saved country and home by battle and by wounds. For in our warlike empire we confide not in those alone' who contend with swords, shields and breastplates, but in advocates also, for those who manage others' causes fight as, confident in the strength of glorious eloquencej they defend the hope and life and children of those in peril." A Spanish proverb says that he who has heard only one side of a cause, has heard nothing. The existence of lawyers makes it possible and usual for each side to be properly presented before the courts. It is for this reason that the legal profession is singled out as the only private one whose members are ipso facto sharers in public office. Nor are a lawyer's opportunities for daily public service at all to be measured by what he does or says in the trial of contested causes. Many causes are never contested, and this because a lawyer advised that they should not or could not be. A lawyer is largely a peacemaker. Out of every dozen claims, that might be put in suit, which are presented to him for counsel, he will not be apt to advise suing on more than one or two. Lincoln shone as an advocate, but his advice to lawyers was to keep their clients out of court when they could. l^ Discourage litigation^' he said, "tt'ersuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser ATTRACTIONS OF THE PROFESSION S7 — in fees, expenses, and waste of time. As a peace- maker the lawyer has a superior opportunity of becoming a good man. There will always be enough business. Never stir up litigation. A worse man can scarcely be found than one who does this j ^ A lawyer has a large opportunity to shape the course of others in the conduct of life, and, more than this, to help in shaping that of the whole community. The positions most strong men love best are those of command; next, those of influence. They may love them because they minister to ambition, but oftener it is from a better motive, and they are sought mainly because of the opportunity they give to do good to other men and to the State. A lawyer never commands. He always influences. But he is also of a class from which the commanders of society in the United. States are always selected. The judges are our real rulers: and only lawyers can aspire to the bench. A seat there often comes to lawyers who have earned the favorable regard of the bar, and to few who have not. A man's ability in any art is best understood by his feUow craftsmen in the same art. To go from the bar to the bench brings a change of attitude towards the law which most men find agree- able. They have been accustomed to try to bring causes within it ; it is now for them to say what its doctrines and limits are, and how they shall be applied. Lord Tenterden, soon after he was appointed a Judge 1 Hill, Lincoln the Lomyer, p. 103. 38 THE YOUNG MAN AND THE LAW of the Court of Common Pleas, wrote to a friend that he found the search after truth much more pleasant than the search after arguments. Lawyers also fill most of the higher offices in the States and the United States. They draft most of the laws. They are generally found at the head of the political departments. They are prominent in consti- tutional conventions. Of the fifty-six signers of the Declaration of Independence, twenty-five were lawyers; of the fifty-five members of the Convention which framed the Constitution of the United States, thirty were. Of the Presidents of the United States, twenty-one out of twenty-six have belonged to this profession: so have a large majority of the senators of the United States, and about half of the representatives in Congress. -"^ In the State governments the same thing is true of the principal officials. Theodore Roosevelt once said that " no people have permanently amounted to anything whose only public leaders were clerks, politicians and lawyers." One of the best known members of the American bar replied to this with perfect truth that " no people have ever per- manently amounted to anything among whose leaders great lawyers were not conspicuous, and among whom respect for the law was not a controlling force." Napoleon, when he desired to shape the law according to his own will and keep France from freedom, began the nineteenth century with setting up a privilege on 1 Benton, Amrnal Address in ISSi before the New Hampshire State Bar Association, p. 347, ATTRACTIONS OF THE PROFESSION 39 the part of the government to have jurisdiction over causes affecting it or its officials, taken from the ordinary courts, and given to special tribunals confined to that sort of business. It kept the French bar back from one of the largest opportunities of public Lawyers, both as such, and as legislators, are, as has been said above, often the framers of statutory law. Nothing of human make has a higher place than belongs to that. It is no easy task to devise a statute that will remedy one evil without causing another. What qualities it ought to have are well depicted by one of the older Spanish writers on law, Isadore of Seville. A good statute, he says, will be honorable; just; prac- ticable ; in accord with nature ; in accord with the cus- tom of the country; in place and time convenient; necessary ; useful ; plain also that it contain nothing through obscurity which is fallacious ; written for no private interest, but for the common advantage of the people.^ Few laws will answer all these conditions, but it ought to be a lawyer's ambition, and certainly always is his opportunity, to let no draft of a statute pass from his hands which does not approximate to this lofty 1 Dicey, Law of the Constitution, 8th ed., p. 23^. 2 " Erit lex honesta, justa, possibilis, secundum natwram, secun- dum patriae conauetudinem, loco temporique conveniens, necet- saria, utilis, manifesta quoque ne aliquid per obscuritatem in ca/ptionem contineat, wullo private commodo ted pro comrmmi civium utiKtate scripta." Cited by Bnuicken, Americam Political Science Review, Vol. VIII, p. 224, n. 4-0 THE YOUNG MAN AND THE LAW standard. There will never be a time when the people will not welcome such laws as conform to it. This is particularly true of new statutes which help courts to exercise more freely their preventive powers. To keep men from injuring others is a much more effective way of maintaining the social order than to wait till the act is done, and then concern oneself only with questions of reparation or punishment. Much here remains to be accomplished by the Ameri- can lawyer. As has been well said by Professor Pomeroy : " The ideal remedy in any perfect system of administer- ing justice would be that which absolutely precludes the commission of a wrong; not that which awards punishment or satisfaction for a wrong after it is committed." ^ De Toequeville, in his Democracy in America,^ struck by the fact that the members of the American bar ranked particularly high in the- social scale, gave most of a chapter to the discussion of the causes. From this a few passages merit quotation here : " In visiting the Americans and in studying their laws, we perceive that the authority they have intrusted to mem- bers of the legal profession, and the influence which these individuals exercise in the government, is the most power- ful existing security against the excesses of democracy. . . . " In all free governments, of whatever form they may be, members of the legal profession will be found at the head of all parties. The same remark is also applicable 1 Pomeroy, Equity Jurisprudence, San Francisco, 1907, Sec. 1357. 2 Vol. T, Reeves' translation, ed. of 1841, p. 297, et seq. ATTRACTIONS OF THE PROFESSION 41 to the aristocracy ; for almost all the democratic convulsions which have agitated the world have been directed by nobles. " A privileged body can never satisfy the ambition of all its members ; it has always more talents and more passions than it can find places to content and to employ; so that a considerable number of individuals are usually to be met with, who are inclined to attack those very privileges, which they find impossible to turn to their own account. " The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause ; and it listens to them without irritation, because it does not attribute to them any sinister designs. The object of law- yers is not, indeed, to overthrow the institutions of de- mocracy, but they constantly endeavor to give it an impulse which diverts it from its real tendency, by means which are foreign to its nature. Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and con- necting link of the two great classes of society. " If I were asked where I place the American aristocracy, ' I should reply without hesitation, that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar." The half century which followed the publication of Democracy m America, as Lord BTyce has remarked, reduced the weight of the American bar " as a guiding and restraining power, tempering the crudity or haste of democracy by its attachment to rule and precedent." ^ Lawyers have also receded, relatively, in social posi- 1 Bryce, American Commonwealth, Vol. II, 1st ed., London, 1888, p. 490. *3 THE YOUNG MAN AND THE LAW tion. There are no longer but three professions — theology, law, and medicine. The " captains of indus- try " have won high place. Great fortunes, many of them coming as a reward of scientific discoveries, have given new means of social distinction. The higher edu- cation is shared in by more. In the country and the small towns, the lawyers retain their original place : in the great cities they are less frequently the leaders in social circles than in the time of de Tocqueville. But in the capacity to render social service they still hold their own; and social service is more and more becoming the best expression of public service. 4. The Opportunities of the Lawyer for Making Money The bar overcrowded, and always has been, both in England and the United States. Incomes of leading American lawyers. Of leading English ones. Large single fees. Contingent fees. No partnerships of English barristers. The briefless barrister. Entering the American bar, with no funds to draw on. Rich young lawyers, not favorites with clients. Bad debts. The prizes of the profession. Social changes tending to affect lawyers' fees. Those of the country lawyer. Legal Aid societies. Collection agencies. Insurance against accident claims. Examination of land records. The Torrens plan. Title guarantee companies. Advertising for business. A lawyer engages in a profession which, both in Eng- land and the United States, is overcrowded. Every calling will be which possesses high attractions. The supply will always exceed the demand. One of the attractions of the law is that it offers to those of suitable qualifications who enter it after a proper preparation, a reasonable chance of obtaining a large income and the ATTRACTIONS OF THE PROFESSION 43 probability of earning an honorable livelihood. Com- plaints that there are too many lawyers appear early and constantly in English history. Chief Justice Fortescue, writing in the fifteenth century, says that there were then two thousand students in the Inns of Court and Chancery. If we add together the barristers and the solicitors there are now in England something like one for every 1,100 of the population. In the United States the proportion is about one to 700.^ Of the ten^or^twelve thousand^ of titular English barristers, less than three thousand were named in the " Law list " of 1909, and not more than about two thousand have made any substantial effort to practice their profession. A large part of them studied for the bar simply as a mode of preparation for a life of good citizenship, or for what it might bring of social position. As soon as the American colonies began to assume the position of important industrial communities, they were well supplied with both barristers and attorneys from England, and a little later an American bar was developed, a few of them having gone abroad to learn their profession in the inns of court, but most studying, if at all, in lawyers' offices here, ivhereby they obtained but a very imperfect view of legal science. Instruction in law was not given in our colleges and universities until towards the closing quarter of the eighteenth century. 1 Carter, Ethics of the Legal Profession, p. 19. 2 In 1866 there were but 4,800. Jeaflfreson, 4 SoQk the jury and of the judge, and determine what shall be th^ effect of evidence, — what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the com- munity, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adver- sary, it is an advantage to which he is entitled. There must always be some advantage, on the one side or the other ; and it is better that advantage should be had by talents than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim." Cicero, in discussing the same question, speaks with more hesitation : " This precept of duty is to be care- fully obeyed, never to prosecute an innocent person on a charge of a capital crime, for this cannot be done without guilt, whatever agreement may be made. Nor, the less, as this is to be avoided, is it to be held a sacred duty, to defend a guilty man sometimes ; only not if he be nefarious and impious. This the majority of the people desire ; usage permits ; humanity even urges. It is the part of a judge always to pursue the truth in causes heard before him; of an advocate (patrord) O* THE YOUNG MAN AND THE LAW sometimes to defend what looks like the truth, even if it be less than true." ^ It must always be remembered, not only that every man who is sued in court must be heard in defense, unless he waives it, or acknowledges that he is in the wrong, but that he can only be heard to good purpose, through a lawyer. Hence no one at the English bar can, without the approval of the benchers, refuse to accept a retainer for the defendant in a criminal cause. For the American bar there is no such rule, but the reason for it equally exists. It controlled, in a noted instance, the profes- sional conduct of William Wirt, afterwards Attorney General of the United States. In 1806, George Wythe, a signer of the Declaration of Independence, and Chan- cellor of Virginia, lived in Richmond, and a nephew named Swinney, to whom it was known that he had left most of his property by will, was one of his family. One morning Swinney came into the kitchen and in the presence of a negro cook, dropped what she described as something white in the coffee pot. The Chancellor soon after breakfast became violently ill, with symptoms of arsenical poisoning. A man servant drank of the same coffee and died with similar symptoms. The coffee grounds were thrown out in the back yard, and some chickens which ate them died. An examination by chemists showed the presence of arsenic in the coffee grounds, in large quantity. 1 Cicero, De Officiis, Lib. Ill, Cap. 14. OBJECTIONS TO THE PROFESSION 85 The Chancellor lived long enough to alter his will and revoke its dispositions in favor of his nephew, who was soon afterwards indicted for murder. Swinney's mother applied to Wirt to defend him. He took counsel with one of the judges of the State, who advised him strongly to do so, and said that he ought not to hesitate a moment. He accepted the re- tainer and appeared for the accused. There was a perfect defense. The law of Virginia at that period excluded the testimony of negro witnesses when offered against a white man. The negro cook was the only witness that could connect Swinney with the crime. She being excluded, the jury, when the case came on, rendered a verdict of acquittal. ■*■ Wirt was right. If Virginia then had an ill-con- sidered statute, which prevented the State from oflFering legal proof of the guUt of the accused, the defense was perfect. Swinney could have honestly raised that point, for himself, had he known what every lawyer knew, namely, the objection to the evidence and the proper manner of taking advantage of it. Not know- ing these things, he was entitled to ask the aid of those who did. But such a case as that is extremely unusual. In most matters in which counsel are asked to engage, there may well be a difference of opinion as to the rights of the parties. Plain cases are seldom tried. In every legal controversy there are apt to be some points favor- 1 Kennedy, Memoirs of Williarn. Wirt, N?\v YQrk, 1873, YqI, Ij p. 140. 86 THE YOUNG MAN AND THE LAW able to the plaintiff and some favorable to the defend- ant. It was the remark of an eminent English lawyer of large experience that men usually imagine that all law suits are either black or white, whereas the great majority are neither black nor white, but gray. There are many also as to which an impartial eye can see that they can fairly be decided for either party, though to each of them an adverse judgment would look like the rankest injustice. A lawyer is naturally inclined to share his client's point of view. Once in a cause he is apt to grow more and more confident that it is a meritorious one. He studies it from the position of an advocate. His mind becomes, as to this subject of discussion, more and more identified, so to speak, with that of his client. Joubert said that it is a great disadvantage in a dis- putation to be impressed with the weakness of your own claims and with the strength of those of your adver- sary. -"^ The lawyer seldom finds himself in such a posi- tion. He looks at things through his client's eyes. He has thought over his points, tiU they seem convinc- ing, and found an answer of some kind to every con- tention which he thinks likely to be put forward by the other side. All civilized nations have not created the legal pro- fession, and created it as soon as they even approached civilization, without a real justification for it. There 1 Pensies, No. 639, " C'est wn grand ditadvatiiage, dans le dis- pute, d'Hre attentif A la faiblesse de ses raitons, et attentif A la fovcfi d0 ircfisqns a/atres,'' OBJECTIONS TO THE PROFESSION 87 would be none, if its members were expected to be cheats and liars. As Coleridge has said, in his Biographia Literaria, " it would be a sort of irreligion, and scarcely less than a libel on human nature to believe that there is any established and reputable profession or employ- ment in which a man may not continue to act with hon- esty and honor." 2. The Tendency of the Legal Profession to Foster a Spirit of Roughness and Antagonism Habits form character. A lawyer risks becoming hypercritical; first a fault-finder in court and then at home. He must learn not to treat any legal controversy as his own. Nor every hostile witness as a liar. A man's intellectual habits are a large part of him. They go far to determine the quality of his life, and its success. In forming them, then, he should be careful to avoid any that would militate against his own happiness or that of others. In choosing a calling, he should carefully consider what, if any, will be its effect in this direction. Law is a science of reciprocal relations. Those who cultivate it are naturally led to draw fine distinctions, and will often have to choose between opposite opinions. These will require critical examination and close com- parison. A lawyer, in the ordinary course of his practice in court, is continually questioning or denying the sound- ness of the propositions put forward by his professional opponent. There is always danger that a habit of mind 88 THE YOUNG MAN AND THE LAW will be thus formed, or at least a spirit of hostile crit- icism encouraged, which will follow him out of the court room, and become a characteristic of his life. An English barrister, alluding to this tendency to- wards contradiction of what others say, acquired at the bar, remarks that " In many a case the caustic tone^ assumed at the outset as a professional weapon, becomes habitual and, without the speaker's knowledge, gives more pain within his home, than in Westminster Hall." ^ So a lawyer must be on his guard against bringing the technical practices and habits of the bar in matters of procedure into the intercourse of general society. It is said of Lord Chief Justice Tenterden, to whom forms were of the essence of any judicial establishment, that once, at a " circuit dinner," at which he presided, " having asked a country magistrate if he would take venison, and receiving what he deemed an evasive reply : ' Thank you, my Lord, I am going to take boiled chicken,' his Lordship sharply retorted, ' That, sir, is no answer to my question; I ask you again if you will take venison, and I will trouble you to say yes or no, without further prevarication ! ' " ^ The story, true or not, is no bad illustration of a real pitfall into which every lawyer and every judge runs some risk of falling. It is sadly easy for him to sink into the condition of an habitual faultfinder. 1 Jeaffreson, A Book about Lawyers, p. 324. 2 Campbell, Lives of the Chief Justices of England, New York, 1873, Vol. IV, pp. 303, 343. OBJECTIONS TO THE PROFESSION 89 The man who is always carping, and contradicting, and pointing to weak spots in the conduct of other peo- ple, wiU make few friends, and deserve few. There is to every trial lawyer a subtle and half hidden temptation to drop into such a mental habit. Most of them re- sist it effectually. A few fall under the spell, but there is no reason why any should. The contests of the court house can be absolutely dropped when the case is finished ; nor, if conducted in a proper spirit of profes- sional fraternity, need they ever lead to ill-feeling at the bar. Still less need they disturb the lawyer's social relations with anybody. A lawyer represents his client's case, but not his cli- ent's personal feelings or qualities of character. His conscience remains in his own custody. As was said by the late Thomas H. Hubbard, the founder of a lecture- ship in Legal Ethics in the Law Department of Union University, — " the controversy, with all its attendant exasperations, is the client's controversy. Its asperi- ties, its irritations, its impulses, its interests, are not the lawyer's, save as he receives them from the client. If he receives them in bulk, as a common carrier re- ceives all goods that are offered ; if, as the servant of the client, he carries them through all the portals and into the temple of justice; if he surrenders his own convic- tions to the wishes of his client, then he gives to his cases the elements that retard justice and bring the practice of the law into disrepute. He obtrudes upon the court the passion, the prejudice, the unreason of the client. These should be left outside the court-house door. The 90 THE YOUNG MAN AND THE LAW controversy that crosses the threshold should be a con- troversy sifted by the intelligence and shaped by the conscience of the lawyer. It should be the essence of honest difference in the assertion of rights, not the tur- moil of personal dispute." ^ A lawyer must, no doubt, also be on his guard against allowing his disbelief in the testimony of a hostile wit- ness to lead to a line of treatment on cross-examination, which is unfair or unnecessarily rough. Most men mean to tell the truth on the witness stand, and a lawyer must always remember that every witness must testify from his own standpoint, which cannot, in mind or body, be precisely that of any one else. Nor does a harsh cross-examination, under most cir- cumstances, make a favorable impression either on the court or jury. An English judge once interrupted a discourteous and savage cross-examination by saying to the offending barrister, " You seem to think that the art of cross-examination is to examine crossly." There is a real danger here of injuring one's client, while trying to serve him, and of injuring oneself, as well. It is not always a danger apparent to the lawyer, himself, nor therefore one against which it is easy to guard. At best a court of law is not a school of good manners. It has to do with people of all sorts and conditions. In every trial two interests are opposed and each has its chosen champion. A certain duty of antagonism is involved, on the part of each of them. I Lectures delivered before the Students of Law Department of Umiom University, 1903, p. 16. OBJECTIONS TO THE PEOFESSION 91 Each is to keep out all testimony which has no bearing on the cause, or which is adverse to his client, and is of a kind which is excluded by legal rules. He must act promptly if he does his duty in these respects. He can- not always stop to make a nice choice of words. He is often tempted to speak sharply to a witness or to the opposing lawyer, and is not unlikely sometimes to yield to the temptation. As often as he does, he increases the risk that his professional habits may prejudice the peace of his own household. 3. The Charge that Legal Procedure is Antiquated amd Unfair The necessity of known rules of procedure. The chain of ig- norance, procedure, knowledge, and justice. Remedies presup- pose rights. Sivmmum jus, summa injuria. The uncodified com- mon law. Its constant change. The Roman law never fully codi- fied. How courts add to law. Violation of rules of procedure may defeat a meritorious cause. Artificiality in rules of evidence. Is an incident of our jury system. Becomes less as jurors have more education. The uses and abuses of a jury. Its guidance by the court. Excessive multiplication of law reports. Unofficial reporting. The citations of decisions. The whole of that law which is administered by law- yers is bound up with the modes and forms of judicial procedure. It cannot be otherwise. Courts exist to do justice between man and man, but always by follow- ing certain prescribed rules and methods. To give them an opportunity to act, causes of controversy must be brought before them, and brought before them in a proper way. Judges do not play the part of policemen, yK THE YOUNG MAN AND THE LATT and walk the streets with a view to preventing wrong or arresting the wrong doer. Nor do they take the place of teachers and announce certain doctrines to which men generally must conform. They are only concerned with announcing or recognizing such as govern certain relations of the parties to a particular law suit. The steps that throw upon them this responsibility are such as only lawyers know how to take. In early political societies they are very formal. Civilization simplifies them but, however high it may rise, courts still remain a device for doing justice through a prescribed mode of procedure. This mode is prescribed because it is gen- erally deemed fair, or else was at one time generally so deemed and is not now generally deemed unfair. It is prescribed in advance of any resort to it; and by the State. Being a body of public rules by which all are bound, and to substantial obedience to which all are en- titled, this obedience is a necessary condition of getting justice or doing justice. Chief Justice Bleckley of Georgia has put this very clearly : " The problem for the judicial mind as a whole, whether aU on the bench or some in the jury box, is to pass from ignorance to justice. Every Court, (by which I mean the aggregate of the deciding power,) though it may know beforehand the general law and facts common alike to all cases, or to all of any given class, is ignorant of the special law and facts involved in any particular case. While this ignorance continues justice is not discernible, and hence there is no way to pass immediately from ignorance to justice unles§ by mere chance, by casting lots or otherwise OBJECTIONS TO THE PROFESSION 93 appealing to fortune. To pass intelligently, ignorance must be succeeded by knowledge, the steps being, first, from ignorance to knowledge of truth, and, secondly, from knowl- edge of truth to justice. The means of making this move- ment is procedure; and so, with ignorance at one extreme and justice at the other, the whole line, filled up, is as follows: ignorance, procedure, knowledge, justice. Knowl- edge being indispensable to justice, and procedure indis- pensable to knowledge, procedure is the portal, the only portal, to justice. Without it a Court could not distinguish from injustice — could not recognize or identify justice, so as to determine either its presence or its absence. No matter, therefore, on which side of a case justice may be, or whether partly on one side and partly on the other, procedure is something in which both parties have an in- terest, to say nothing of the interest in it of the Court or of the public as the only means of carrying on judicial work and making Courts available. This interest of the parties is so important that every rule of procedure, unless purely discretionary with the Court (as some of them are), is always attended with a corresponding right of procedure, vested in one or both of the parties, each party having the rights appropriate to his position in the case as plaintiff or defendant. The result is, that incident to these rights there is a body of remedial justice — justice of procedure, which is altogether apart from and quite independent of justice of substance, or the ultimate justice of the case. Relatively to procedure, any and every case is just on both sides, for each side has rights of procedure, and it is just that these rights should be allowed and administered accord- ing to the rules which grant and govern them. It is through rights of procedure that rights of substance are judicially ascertained; through justice of procedure justice of substance is administered." ^ 1 Bleckley, Truth at the Bar, p. 6. d4 THE YOUNG MAN AND THE LAW Legal procedure rests on the principle that where there is a right, there must be a remedy for its enforce- ment and against its violation. Ubi jus, ibi remedium. Equally is it its doctrine that where a claim of right is founded on a wrong, the law will give no remedy. Ex turpi causa actio ruin oritur. In a case arising in Wisconsin, a lawyer sought to recover fees which he claimed to have earned by legal services under a retainer to influence a public prosecut- ing officer to allow one charged with crime to get off with a minimum of punishment. The court held that such a contract was against sound morals, and could not be enforced although the services were rendered, and were successful. In giving the judgment of the court. Chief Justice Ryan used this language : " The profession of the law is not one of indirection, circumvention, or intrigue. It is the function of the pro- fession to promote, not to obstruct the administration of justice. In litigation the lawyer becomes the alter ego of his client; and professional retainer rests in absolute and sacred confidence. But the duty imposed by professional retainer is direct and open. Professional function is exer- cised in the sight of the world. Professional learning and skill are the only true professional strength. Forensic ability is the only true professional influence on the course of justice. Private preparation goes to this only as sharp- ening the sword goes to battle. Professional weapons are wielded only in open contest. No weapon is professional which strikes in the dark. The work of the profession is essentially open because it is essentially moral. No re- tainer in wrong is professional. A lawyer may devote him- self professionally to the legitimate business of his client. OBJECTIONS TO THE PROFESSION 95 but he cannot be retained in whatever may not be rightfully and lawfully done. He may defend a wrong done in the past, but he cannot be privy to the doing of a wrong in the present. The profession is not sinless, but its sins are all unprofessional. When a member of the bar is privy to the wrong-doing of his client, he is his client's accom- plice, not his lawyer." ^ Courts of justice may become, in rare cases and for the purposes of a particular judgment, courts of injus- tice. This is part of the necessary order of things, under a system of permanent rules of procedure and decision. The parties would not be justly dealt with, unless the court applied the rules as they exist, notwith- standing it may support the maxim, Summum jus, summa injuria. Here is one of the things that kings are good for. Relief must be sought for the past in the pardoning or dispensing power, if such there be; and for the future in a change of legislation. Legal procedure takes its color from the nature of the law, the proper effect of which it is designed to secure. The law to be studied and invoked by Amer- ican lawyers is in the main the Anglo-American com- mon law. If it were to be found in the shape of a code framed, like that of France, a century or more ago, its mode of expression would be necessarily somewhat anti- quated ; and some of its rules might well be, also. But the common law, never having been wholly and sys- tematically reduced to written form, leaves far greater freedom in the people, if not the courts, to make im- 1 Wight V. Rindskopff, 43 Wisconsin Reports, p. 344. 96 THE YOUNG MAN AND THE LATT provements in it, adding or retrenching from time to time, in conformity with the spirit of the age, and agreeably to the ripened common sense which gives it character. It is this which has kept most of the American States from endeavoring to codify with any fullness their mu- nicipal law. They have preferred to leave it mainly un- fettered by legislatures and, so far forth, capable of expansion or contraction, according to popular needs and usages, fortified by judicial opinion. Law, in its widest sense, indeed, is anything but sta- tionary. It changes and must change as the views of civilized society change. " New times demand new measures and new men. The world advances and in time outgrows The laws that in our fathers' day were best." There are great advantages in trusting to a common law, the creation of the people, rather than to a code, the creature of legislation. One is elastic; the other rigid. One registers conclusions reached in the past; the other rules laid down for the future. No nation has ever had a complete system of codifica- tion. The system has rested on remoter rules of con- duct, not oflScially formulated, which from time to time have vindicated, or may vindicate, their right to exist, by their harmonious relations to the life and wants of the community. Those who have never read them sometimes speak of the Pandects of Roman law, or the Institutes of Justin- OBJECTIONS TO THE PROFESSION 97 ian, as a code. They are an official collection of legal definitions and principles and opinions of jurists, but they are far from being a code in the sense of the civil code of France or the German Burgerliche Gesetzbitch. Sir James Stephen, no mean authority, in the introduc- tion to his work on Evidence, speaks of them thus : " It would be a complete mistake to suppose either that the Roman Law is in substance wiser than our own, or that in point of arrangement and method the Institutes and the Digest are anything b&t warnings. The pseudo-philosophy of the Institutes, and the confusion of the Digest, are, to my mind, infinitely more objectionable than the absence of arrangement and of all general theories, good or bad, which distinguish the Law of England." This quality of Anglo-American law renders it par- ticularly fitted for a country like the United States where there are over fifty States and Territories, each exercising legislative power and each mainly independ- ent of every other. In the common law they have all the same thing to work from. They may, or they may not, come to the same results, but they proceed from a common point of departure. Let us consider a single case which clearly illustrates the growth of municipal law in judicial practice and by judicial power. A deed of a lot of land in a city of Connecticut was given, in which it was bounded on a private passway. When a boundary by deed is given as on a public high- way, the law of that State had always construed it as presumptively embracing half the land adjoining that 98 THE YOUNG MAN AND THE LAW so described, which is occupied by that highway, sub- ject, of course, to its use for all proper highway pur- poses. But whether the conveyance of a lot bounding on a private passway presumptively carried the title in like manner to half the land used for the passway had never been determined either by its legislature or its courts. More than twenty years after such a convey- ance was made, the claim that it did so carry title was set up by one who then held under the deed. The court overruled the contention, in an opinion from which the following quotations are made : " The effect of a deed of land depends on the words in which it is expressed, aided, if necessary, by a consideration of the circumstances leading up to its execution and the situation of the property. The ultimate object is always to give its terms such an interpretation, if this can be done without straining them beyond their fair import, as will carry out the intention which the parties may be presumed to have had in employing them. . . . " The point of law involved has been differently decided in different States. In Massachusetts it has been roundly held that a deed of land bounded on a private way, laid out over land of the grantor, passes the fee to the middle of the way, where there is nothing in the deed to require the opposite construction. Fisher v. Smith, 9 Gray (Mass.) 441, 444; McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076. In Maine an opposite conclusion has been reached. Ames V. Hilton, 70 Me., 36, 43. There is here no statute or judicial precedent which governs, nor any general custom of which we can take judicial notice. The question is one, also, not settled by the common law. It is therefore 'our duty to answer it by the choice of the rule which, in our judgment, is best calculated to do justice ia cases of this OBJECTIONS TO THE PROFESSION 99 character. This we have done. We adopt that which does not raise, in case of a boundary on a private way, the pre- sumption which obtains in case of one on a highway. By that rule, because it is (or by our adoption of it becomes for Connecticut) the rule of justice, it may fairly be as- sumed prima facie that the parties to such a transaction in- tended to be governed, by force of the words which they employed." ^ Legal science has been not infrequently criticized be- cause what it recognizes as the law of pleading or of evidence often bars out any investigation into the sub- stantial merits of a just cause. But it is as just that a man should be compelled to state or prove his case be- fore a court according to fixed rules, as it is that he should have a just case to present. Chief Justice Bleckley, with his accustomed clearness of thought, states it thus, in the paper to which refer- ence has been made above : " Some meritorious cases, indeed many, are lost in pass- ing through the justice of procedure; but they are all justly lost, provided the rules of procedure have been correctly applied to them. That a just debt is unrecognized, a just title defeated, or a guilty man acquitted, is no evidence that justice has not been done by the Court or the jury. It may be the highest evidence that justice has been done, for it is perfectly just not to enforce payment of a just debt, not to uphold a just title, not to convict a guilty man, if the debt, or the title, or the guilt be not verified. It is unjust to do justice by doing injustice. A just discovery cannot be made by an unjust search. An end not attainable by just means is not attainable at all: ethically, it is an impossible 1 Seery v. Waterbury, Vol. 83 Connecticut Lcm Reports, p. 667. 100 THE YOUNG MAN AND THE LAW end. Courts cannot do justice of substance except by and through justice of procedure. They must not reach justice of substance by violating j ustice of procedure. They must realize both, if they can, but if either has to fail it must be justice of substance, for without justice of procedure Courts cannot know, nor be made to know, what justice of substance is, or which party ought to prevail." ^ Every one who engages in the legal profession is at first struck and repelled by the artificiality of the rules of evidence. In trying causes in court there is the same end that is proposed in any outside inquiry, which may be made to ascertain what are the facts decisive of some controversy. But out of court, no door through which information may be obtained is closed. In court, on the contrary, the exclusion of " hearsay " evidence ; the requirement of more than one witness in certain crim- inal prosecutions ; the distinction between the amount of proof demanded in criminal cases and that deemed suf- ficient in civil cases ; the denial of resort to the interro- gation of one accused of crime ; and the exclusion of evi- dence which the judge may think too remote or uncer- tain ; seem to surround the investigation of the truth by a cloud, though by no means a " cloud of witnesses." These rules have come in mainly as incidents of our system of trial by jury, but in part also from our high appreciation of the dignity and worth of the individual man. It is enough to say that as juries have become better 1 Bleckley, Truth at the Bar, p. 10. OBJECTIONS TO THE PROFESSION 101 educated, there is continually less and less ocbasiop for guarding them from being led ofF into irrelevSlSt' m-. quiries or mistaken conclusions, and that judges, who made most of these rules of evidence, are gradually re- adjusting them to the requirements of common sense. At first sight, it would seem that a jury trial was but a poor way of deciding controversies. Anacharsis said of Athens that in her assembly the wise men argued causes, but Jthe fogls. decided. them,u. A keener mind put the matter in a clearer light. Aristotle said that it was safer to depend on the judgment of the many, than of the few. In a large body of men no one person might be particularly eminent. Nevertheless, each had some valuable quality or faculty that was noticeable, and to- gether they possessed them all. The jury is not as numerous as an Athenian assem- bly, but its members have a considerable variety of qual- ities, and something of what is addressed to them in argument is pretty sure to appeal to one of them, if it does not to another. It is a reasonably fair miniature of the community. The unwillingness of jurors to find a fellow-creature guilty of a capital felony, even on the clearest evidence, is notorious ; and it may well be suspected that they fre- quently violate their oaths in favor of life. In civil suits, on the other hand, they too often forget that their duty is merely to give the plaintiff compensation for evil suffered; and if the conduct of the defendant has moved their indignation and his fortune is known to be 102 THE YOUNG MAN AND THE LAW large, they turn themselves into a criminal tribunal and, under the name of damages, impose a large fine.-*- A jury is and must remain an indispensable part of the machinery of justice, under the terms of our consti- tutions, state and national. But, as to almost every other conventional feature of judicial procedure, the modern tendency is to invest the courts with power to change it within certain limits at their discretion. Some have naturally gone farther than others in exer- cising this authority. Only a strong man, with a strong court behind him, can venture to abrogate a usage of centuries. Chief Justice Doe of New Hamp- shire may be mentioned as one whose work in this field of judicial action has been particularly bold and thor- oughgoing.^ Dean Swift complained, two hundred years ago, in the preface to GvMiver's Travels, that he had hoped at their first appearance that they would effect something, and that he should hear in England of " judges learned and upright; pleaders honest and modest; with some tincture of common sense; and Smithfield blazing with pyramids of law books." Bench and bar have improved since this caustic and half true criticism of English ju- dicial procedure was written, but the law books, instead of being burned, have grown ten-fold. This is mainly from the enormous increase of the reports, official and iMacauIay, History of England, Vol. VIII, p. 44. 2 See Lisbon v. Lyman, 49 N. H. Law Reports, p. 382; Darling V, Westmoreland, 52 iV. H. Law Reports, p. 401. OBJECTIONS TO THE PROFESSION 103 unofficial, of judicial opinions. The modern text-books in law are mainly based on these, and much of legal in- struction comes from the same source. In an address given in New York in 1915, Lord Chief Justice Reading said that he was strongly impressed with the undesirability of the constant reporting of de- cisions which lay down no new principle, but only report the application of old principles to new facts, and that the members of the bar would have a feeling of satisfac- tion if they could get rid of their thousands of volumes of decisions so that they might base themselves on the solid principles of the law. To the charge then that the established system of re- porting judicial decisions and the uses made of it, if ever defensible are so no longer, there is, in the opinion of the writer, no good answer. It is antiquated. It belongs to an era of different social conditions. It adds enormously to a lawyer's office expenses. It leads him aside from the consideration of the principles of the law, to study particular instances of their application, sought out not for purposes of illustration but for use as authority. It lengthens his briefs, unduly : it deadens the tone of his arguments to the court. It makes " case-lawyers," whose minds move in a narrow circle. If the system is to be maintained, these evils will grow. Others may be mentioned, in passing, which are also threatening. The ills arising from the publication of decisions not worth reporting are obvious. There has been, however, in some of our states a faUure to publish decisions, 104 THE YOUNG MAN AND THE LAW which has been much more unfortunate. In a state of small population, or where the judges are overbur- dened, or think they are, it has often happened that sev- eral years have elapsed between the adoption of an opin- ion by the court and its appearing in a volume of re- ports. In New Hampshire, in 1899, no official reports of the decisions of the Supreme Court had appeared since 1891. The bar, under such circumstances, is compelled to move in the dark. Unofficial reporting has done something to relieve the situation in such cases, but what is unofficial is unau- thoritative. Judges often make changes in opinions between the time when they were pronounced and that when they are published by the State. In such a case the official reports are conclusive as to what was de- cided. It does not seem improbable that the time wiU come when counsel will be restricted by positive rule, in or- dinary cases, as to the number of reported cases which they can cite in argument. Possibly the courts may go farther and forbid any statement from counsel as to any cases, except those of their own state, or the United States. Meanwhile the arguments which courts of ability like best to hear are those which assume their knowledge of the principles of law, without stopping to recite them, and proceed at once to state how it is claimed that they apply to the case in hand. A closer supervision over what goes into the reports will also, doubtless, come before many years. It is right OBJECTIONS TO THE PROFESSION 105 that in all cases carried to the courts of last resort their opinions should be written and filed in the clerk's office, where the parties to the cause can examine them. This helps to prevent hasty decisions, for which no sound reasons can be assigned. But that new cases should be reported for the public eye, which simply re- peat what has already been judicially determined in the same jurisdiction or re-assert familiar principles of the common law, is an intolerable practice for a country where fifty such courts exist. CHAPTER IV THE FEESONAI. ftUALITIES BEftUISITE FOE SUCCESS IN THE LEGAL PEOEESSION Ability. Industry. Steadiness. Good sense. Knowledge of htiman nature. Endurance. Crood character. Resolution. Imag- ination. Oratorical power not a necessity. Cannot supply want of legal knowledge. Power of clear statement. Deliberation. Resting case on settled principles. Burke's practice as to this. Self-confidence. Ability to respond to sudden call. Close study of one's cases. Readiness to seize opportunities. Preparation of argument as to form. In no profession will success be probable as to one who is not of fair ability and industrious habits. In addition to these, the practicing lawyer should have steadiness of purpose, good sense, good judgment, and good knowledge of the workings of the human mind. He should also have the faculty of turning quickly from one subject to another; of ordinarily putting aside his business at night, so that it wiU not disturb his sleep ; and of bearing up under a sudden strain. James A. Bayard of Delaware wrote from Europe, in 1814, to his son, who had just entered the bar: " Great industry and perseverance seldom fail to make a good lawyer, and no talents, without industry, will produce the same effect." A good character is a man's best capital in all call- ings. It is the indispensable capital for a successful 106 QUALITIES REQUISITE FOR SUCCESS 107 lawyer. Proof of it, (such as can be had), is almost universally required from every applicant for admission to the bar. Loss of it, after admission, is cause for disbarment. The immense trust put in a lawyer by his clients can rest on no other foundation than his integ- rity. A man who, after obtaining a judgment for an- other, of whatever amount, can collect and discharge it, can find little employment in the courts, unless he is and is known to be honest. Without that, indeed, he cannot really know what law and equity are, and what they de- mand. Professor Theodore- W. Dwight used to say to his classes in Equity Jurisprudence : " No one can be a good equity lawyer unless he is himself a good man." Another necessary quality is resolution. When a lawyer is once enlisted in a cause, he must be ready, at all costs to himself, to do his best. Shell, the Irish bar- rister, once said, with much truth, that without hardi- hood of purpose and contempt of consequences, nothing great in thought or action can be accomplished at the bar. A lawyer wiU be much assisted in his practice if he be gifted with strong imaginative faculties. Whether in court or in his office he is always being called upon to forecast the future. His client wishes him to draw a contract for a certain purpose or in a certain way. How will the other party to the bargain understand, and have a right to understand, the provisions.'' He is about to argue a cause. What are the claims that may be advanced by the other party? A Japanese officer once said that a private soldier 108 THE YOUNG MAN AND THE LAW who had powers of initiative and imagination was worth- less. His business was to obey orders, without fore- casting their consequences. The position of the lawyer is diametrically the reverse. He obeys no man's orders. His client's directions do not bind him as to matters where the law gives him discretionary powers. His bus- iness is to anticipate the course of future events ; to pre- dict how a cause will be, because it ought to be, decided ; to initiate theories of prosecution or defense ; and in aU these things the imagination is often his safest guide. ^_^ To command the attention of a popular assembly one must have either strength of mind or strength of manner. To command that of a judge, or even of a jury, neither is absolutely required. It is not at all necessary that a trial lawyer should have what is commonly known as oratorical power, though it will be of great advantage to him to possess it. Schiller described oratory as the art which carries on a business of the intellect as a free play of the imagina- tion. The main point is to do well this business of the intellect. It may be conducted by mathematical and logical methods, though in such case the labor of the orator will have been greater, and the satisfaction of his auditors less. It may be accomplished by the flash- lights of the imagination, but they should not be turned on until the intellect has done its work, and a work that needs only to be seen to be appreciated. No art will long conceal inferiority at the bar, if it proceeds from want of legal knowledge. Lord Erskine wrote to an American correspondent, " Remember that. QUALITIES EEQUISITE FOE SUCCESS 109 no man can be a great advocate, who is no lawyer. The thing is impossible." ^ The important subjects of controversy likely to arise in any particular suit, will seldom be numerous. Their character can be foreseen by a sharp-sighted man, and their relations to each other and to the law can gener- ally be studied with care before the trial. The lawyers engaged in the cause can, in most cases, acquire a knowl- edge of these relations superior to that possessed by any other person who is competent to handle them. Occupying this position, they have the best oppor- tunity to show what they can accomplish, whether in reaching sound conclusions or in leading others to ac- cept their conclusions as being sound. They argue causes from this high vantage ground. The judge and jury first learn of the nature of the suit from their lips. Much depends on first impressions. The most success- ful advocate is he who can make a favorable impression by his opening statement at the bar, and has given the time and thought necessary to present the case fairly and fully in the way in which he wants to have it strike those whom he addresses. This may be done by some men, speaking in a con- versational tone and with a manner absolutely devoid of action, far more effectively than by others who are born orators, but have been less careful in their pre- liminary study of the facts. It is also true that what is in any man's power, namely to speak slowly, is even 1 Jeaffreson, A Book about Lawyers, p. 363. 110 THE YOUNG MAN AND THE LAW more important than to speak forcibly. One may be forcible, but speak so fast that his train of thought can- not easily be followed without so much effort that either the attempt will be abandoned, or the impressions made will efface each other by the rapidity of their succession. A distinguished Rhode Island lawyer had this habit of speaking too rapidly. A client once said, after lis- tening to his argument, that it was excellent and con- vincing but, he added, " from what I know of judges, if he had kept his words a little farther apart, I think they would have had a better chance to settle down among the ideas of the Court." ^ To speak naturally with a grace and spirit that are sure to attract attention is a great gift but, after all, it can avail little towards winning a favorable decision of a case, even before a jury, except in prosecutions for certain crimes. A Maitre Labori can occasionally save a murderess from punishment, but such successes are proof rather of the weakness of the human mind, than of anything that deserves the name of legal skill. A lawyer should be capable of stating his case so that the court and jury can understand the facts, as he claims them to be, and the law bearing upon them as he claims that to be. He will argue most effectively when he makes this statement the most plain and clear. But it must be plain to those to whom it is addressed. This requires a considerable knowledge of human nature. A man does nat talk to a jury as he would to a learned 1 Abraham Payne's Bemimscence) of the Rhode Island Bar, Providence, 188S, p. 253. QUALITIES REQUISITE FOR SUCCESS HI academy of scholars. He does not talk to an inex- perienced or half educated judge, as he would to an able and learned one who has been twenty years upon the bench. He would weary one with what might be indis- pensable for the information of the other. The more a case can be rested on settled principles of law, the more impressive will be the argument. Edmund Burke was a great logician and reasoner. Without the aid of oratory in delivery, his arguments had great weight with those who heard, and greater with those who read them. They bore close study. Cole- ridge, in his Biographia Literaria, says of him that his great distinction lies in trying everything at the bar of principle. His views, it is added, at the commencement of the American Revolution were guided by the same principles and the same deductions which he afterwards applied to the causes of the French Revolution, but the practical inferences which he drew from them, both sound, were almost opposite. The reason was that Burke had, and had sedulously cultivated, the faculty " of seeing all things, actions, and events in relation to the laws that determine their existence and circum- scribe their possibility." ^ Self-confidence is another possession of particular value for a lawyer. It may, of course, be nothing but ill-disguised self-conceit; but, if it be not thus mis- named, it is a desirable quality for every man who would I Works of Coleridge, New York, 1856, Vol. Ill, p. 288. 112 THE YOUNG MAN AND THE LAW win success in any profession, and to a lawyer, where founded on a just appreciation of one's powers, will be a great help in assuming on occasion a burden which is to be suddenly taken up or rejected. A young lawyer should not shun responsibility. If an important or doubtful case is put in his hands, he should not ask his client, when it is coming on for trial, to retain older counsel to assist him. To make such a request is a confession either of incompetency or of want of knowledge of his own powers. The practice of most lawyers is uneven. It diiFers from day to day in kind, and from year to year in vol- ume. They must be prepared to deal intelligently with business when it comes and as it comes. If a critical case be reached suddenly and unexpectedly for trial, the trial lawyer must be ready to arrange and produce the testimony in proper shape and order, and to bring forward the best arguments that he can frame. He must not be found unprepared for anything that he has undertaken to do. He must be ready, in the intervals of the trial, thoug'h at the cost of giving up a meal or a night's sleep, to complete and round out whatever preparation he has made before. The trial-lawyer's life is one of more strain than the office-lawyer's. Its successes are more brilliant, but they are bought with greater and more concentrated ex- ertion of all the forces of mind and body. No man could try cases to the jury every day in the year. The tension of effort, in pushing through one and then instantly turning to another, week after week and QUALITIES REQUISITE FOR SUCCESS 113 month after month, would be too great, however iron his constitution might be. No lawyer will be able to acquire or handle a large practice, unless he gives it close attention. He must work hard for w'hat he gets. Heaven always sells us the good things it bestows on us, says the French proverb. -"^ The lawyer pays something for success. One who would succeed as a lawyer must stand ready to seize opportunities for rendering legal service. It is not enough to have the qualifications. He must be able to show that he has them. Emerson said : " Let any man learn to do some one thing better than the average man is doing it and, though he build his hut in the heart of a forest, the people of the world will make a pathway to his door." This may be true of a hand-worker. His products advertise themselves. " Good wine needs no bush." It is seldom true of the head-worker ; — never, until he has shown the public what his head can do for him, and for them. The lawyer cannot make such an exhibition of his powers, unless some occasion gives him a chance, and he is found ready to use it. A most valuable habit of mind for a trial lawyer is quickaess.in_m^ta3.„sction. He will sometimes have a sudden opportunity to make a point which must be im- proved the next moment, or never. Lord Chief Justice Coleridge, when a young barris- ter, was defending one charged with murder before a 1 " Le cifl notis vend toujours les bieng qu'il nous frodigue" 114 THE YOUNG MAN AND THE LAW jury. The court sat in the evening, and as he was mak- ing his final argument, it so happened that the lights went out. Very soon the mishap was remedied. " Gen- tlemen," said Coleridge, in resuming his speech, " you have seen how suddenly the light went out — how quickly it has been restored. It is in your power to extinguish the prisoner's life — but remember, if you do so, it cannot under any circumstance be replaced." ^ There are few Coleridges and, were there more of them, few chances to make possible so striking an ap- peal as this. But there are often stages in a legal argu- ment, which can be anticipated, that give room for the use of graphic illustration or epigrammatic phrase. Successful speakers prepare for them well in advance. Curran had the reputation of striking off happy phrases in his speeches, in the heat of the moment. A friend asked him how this was. " My dear fellow," said he, " the day of inspiration is gone by. Everything I ever said, which was worth remem- bering, my de bene esses, my white horses, as I call them, were all carefully prepared." ^ 1 Crlspe, Remimacences of a K. C, p. 82. 2 Phillips, Cwran and His Contetnporariesj p. 383. CHAPTER V THE EDUCATION REftUISITE FOE SUCCESS IN THE LEGAL PUOEESSION Three years' study needed. The terminology and salient points to be learned, first. Institutional instruction. The fundamental principles few, and simple. Studying in an office. Improvements in American Law Schools. Law Reports. Case-books. Judicial opinions with us the conclusive proof of what is law. Instruction in law, both as a science and as an art. Its philosophical founda- tions. Hegel's view. Study of legal history. Of great historical judgments. Law, a great anthropological document. The differ- ent methods of legal instruction. Lectures. Oral discussions en- couraged. Dividing large classes. Case-books must cover less ground than text-books. Acquiring a sense of legal proportion. Study of the law of nature and moral philosophy. Of principles first, and authority afterwards. The increase of legal subjects postpones for most the study of comparative law. Law a pro- gressive science. Sociology and Law. Pragmatic philosophy. Logic in law. Legal education , useless for some. It requires some native gifts. Good students in other sciences, generally good in law. Continuing legal studies at the bar. The American lawyer needs two courses of education : one to fit him to study what law is and how it should be applied, and one to accompany and direct him in doing what he has been thus fitted for. His first course will occupy the whole period of his youth : the second should occupy the whole remainder of his life. Three years of his early manhood should be devoted to legal study from the standpoint of one who hopes to be a lawyer ; the rest 115 116 THE YOUNG MAN AND THE LAW of his time on earth to legal study from the standpoint of one who is a lawyer. The great need of the law student, at the beginning, is to get a general view of the salient points in the law, of the country in which he expects to practice. This, of course, requires a knowledge of the terminology of legal science. A principle cannot be understood until it is stated in words of which, as thus applied, the student understands the proper meaning. These points, and terms, and principles are best learned from short institutional treatises or institu- tional lectures. Of books of this nature. Lord Bacon, himself the author of one of the earlier ones, said that they must be clear and plain, " not omitting some subjects and dwelling' too long on others, but touching upon each briefly, so that to a student afterwards com- ing to read the whole body of the law nothing may ap- pear wholly new, but as that of which some Uttle notion had been previously imparted (' levi aliqua notione prceceptumfi')." ^ In some of the American States there are official codi- fications of municipal law as to most matters of the first importance in determining civil rights. In such States, those should, of course, be read at some stage in legal education, but as they greatly resemble each other this can generally be better deferred till shortly before ap- plying for admission to the bar. Thus far the beginnings of legal education involve no 'i- Bacon's Works, 1803, Vol. VII, p. 458; Aphorism Vsxxi. EDUCATION REQUISITE FOR SUCCESS IIT special difficulty. " No conception held in common by a large number of men such as the members of a State or great community can be very complex in its nature or difficult of comprehension. This may be taken for granted as one of the laws of thought. Consequently the fundamental notions out of which the rules of law are derived must be of this simple character, since it is in the general acceptance and uniformity of these no- tions that the common law exists as such." ■•■ An advo- cate who has been able to show to the satisfaction of the court that they support the claims which he presents, has won his case. He needs cite no authorities. One of the leaders of the New York bar in his day, (Francis N. Bangs), once said that " no man was fit to practice law, that was not able to practice it without law books." 2 The early American lawyers had few of them. They had studied their profession in lawyers' offices, and by attendance in court. In offices of capable men, who took a real interest in their pupils, this was in many respects no bad way. They received a hundred or a hundred and fifty dollars a year from each, and gave value for it.^ Business was not so pressing then as now. In the country, particularly, time often hung heavy on a lawyer's hands, and could be well devoted to actual instruction of his pupils, or examinations to see if they had read the books which he had recommended. 1 Reports of the American Bar Association, Vol. XV, p. 342. 2 Strong, Landmarks of a Lamyer's Life Time, p. 273. 3 A. M. Hamilton, Life of Alexander Hamilton, p. 159. 118 THE YOUNG MAN AND THE LAW Since the Civil War the proportion of students at- tending law schools has steadily increased. Fewer men of ability have found leisure or disposition to give in- struction to pupils putting themselves under their care. Business methods have largely changed. Students have, in some measure, been crowded out of lawyers' offices by the stenographer and the typewriter. The law schools, on the other hand, have greatly increased in number, and improved in their manner of instruction. There can be no serious question that now they afford, in most cases, the best available facilities for giving a good legal education. It is universally conceded that its main aim should be to cultivate a familiarity with the more important prin- ciples and rules of that system of law under which the student intends to practice, and to promote his ability to discuss their proper bearing on any states of fact to which he may seek to apply them. In the United States, for the official declaration of most of these rules, one must look to the published opin- ions of the higher courts as the original source of authority. But these courts have no commission from the State to declare what is a rule of law except in the determination of particular controversies, and then only so far as may be necessary to uphold such judgment as they may render. They do not write law-books. They do not seek to arrange the law in an orderly and sys- tematic form. Private individuals do this. They take the best defi- nitions of legal rules which they can find in the reports EDUCATION REQUISITE FOR SUCCESS 119 of judicial decisions, improving them if they can. They separate them into classes, according to their special character. They combine them with statements of law derived from other sources, and suggestions of their own, and so produce a book on some particular topic, or perhaps on the elementary rules and processes of the law on all subjects. Such suggestions will be made in the interest of comprehensiveness of treatment. They will be made in view of what seems fair and just to the writer, who will be always impartial, because having no personal and present interest in the question to which they relate. But systems of law are constructed out of particular rules as well as general principles. There is a juristic encyclopedia, as the Germans phrase it, that must be taught to whoever would be a true lawyer. He must master it as the beginning and foundation of his pro- fessional education.^ To aid him in his further studies we have in the United States what has been found in equal measure in no other nation. Only in the United States do judicial opinions express the final word of the sovereign power. The courts of Great Britain must bow to the will of Parliament. The will of the Congress of the United States must bow to the courts of the United States. The will of the legislature of each State must bow to the 1 See two articles by the author on The Study of Elementary Law the Proper Begirtmng of a Legal Echication, Yale Lam Jour- nal, Vol. XIII, p. 1; and on Education for the Bar in the United 8tafe>, American Political Science Review, Vol. IX, p. 437. 120 THE YOUNG MAN AND THE LAW will of its highest court. Here, therefore, the opinions of the courts are, in Great Britain they are not, the ulti- mate source, in effect, of written authority. On the other hand, the unity of the judicial system of Great Britain, with its one final court of appeals for all causes arising in the kingdom proper, and an- other final court of appeals for all causes arising in her dominions beyond the sea, coupled with the omnipotence of Parliament, avoids that conflict of authority which is the despair of American jurisprudence. In our American law schools, therefore, we have al- ways made great use of the recorded opinions of our higher courts, in which the reasons for their decisions are stated. Since 1870 this practice has greatly ex- tended. There are now almost no topics of legal in- struction which have not been made the subject of a volume consisting of extracts from such opinions, arranged in convenient order, and introduced or Inter- spersed with explanations, largely of an historical char- acter. Such books, called " case-books," are useful In their place, and in many law schools have wholly or mainly displaced text-books on the same subjects which were formerly employed. As law is both a science and an art, so legal educa- tion must aim to give some knowledge of it In each of these forms. There must be scientific instruction for all, but there will be those to whom acquaintance with the law as a science will be the more valuable, and others to whom acquaintance with law as an art will be the more valuable. Professor WiUiam C. Robinson made a EDUCATION REQUISITE FOB, SUCCESS 121 clear, though in some respects overstrained, differentia- tion between these two kinds of instruction, and the class for which each was designed, in these words : " It is one purpose of legal education to confer a knowl- edge of the science of the law, to lead the student to the contemplation of fundamental principles, to teach him how to draw from them impregnable conclusions, to exhibit prin- ciples and conclusions to him in their relations to other necessary truths, to conduct him down the historic path of social and legal evolution until he knows the present rules of law in their causes and thus perceives, absorbs and assimilates the reason of the law. It is another and quite a distinct purpose of legal education to train apprentices in the art of law, to instruct them in the rules which govern social conduct, in the specific methods prescribed by law for the execution of voluntary acts, and in the modes by which redress for injuries is sought and gained in civil and criminal tribunals. That some students may be able through their superior powers or larger opportunities to avail themselves of both these forms of legal education, and become at once practitioners and scientists, does not remove the radical difference between them, nor justify the con- tinuance of those educational systems which afford only a smattering of commingled art and science, and introduce their victim to professional responsibilities and honors when competent neither to verify nor to practice law." ^ This would appear to deny to the ordinary student of law as a science any preparation for its practice in court. A system of legal education may be so con- ducted as to commingle art and science, as each the best interpreter of the other, and in so doing not content 1 Robinson, A Study of Legal Education, Boston, 189S, p. 12. 122 THE YOUNG MAN AND THE LAW itself with giving but a smattering of either. Nor are the students few who can profit by such instruction. On the contrary, there are few who cannot. Pursued in this manner, a legal education naturally leads to the highest walks of human thought. It in- Arites its disciples to take a wide survey of men and man- ners. They find an inspiration in such suggestions as Hegel's, who would trace the evolution of human reason from logic to the philosophy of nature; from the phi- losophy of- nature to the philosophy of the subjective spirit, that is psychology; from the psychology of the subjective spirit to the psychology of the objective spirit, that is to the philosophy of law and of history ; and finally from the philosophy of law and history to the philosophy of the absolute spirit, that is to the philosophy of art, religion, and philosophy itself. Then, he declares, attaining this level, the spirit of man rises to consciousness of itself and of the origin and essence of the universe. There is too mucif, no doubt, of a transcendental tone to this, but it is certain that the paths of law and history, from whatever point of view they are studied, often intertwine. Law is in- deed, in its essential nature, a silent historian, infallible in judgment, unequaled in accuracy, always at work to perpetuate the memory of every people that deserves a place in the records of the world. Whoever seeks to learn law is necessarily a student of history, and he wiU soon find that law is the best recorder of its development on the lines of social justice and constitutional right. A.n ancient piece of legislation often has a high value, EDUCATION REQUISITE FOR SUCCESS 123 as an historical document, in showing what rights the people where it was adopted deemed most in need of pro- tection by or against the State, and also most worthy of it. It will show, further, on what safeguards they deemed it reasonable to rely. If they should be under the rule of a king, the same thing would be true. Neither statute nor royal decree will endure unless it be one to which its fraraer thought with reason that the people would be ready to conform. The modem historian does not forget this, nor did it wholly escape the attention of the ancient world. Sempronius Asellio, himself a soldier, said, in a day when military glory counted for the most, that to write of wars, and triumphs, and their dates, to dwell upon campaigns and their events, and not inquire what de- crees meanwhile came from the senate, what statutes from the people, nor from what motives these wars were waged, was to tell stories for children, not to write his- tory.-' There have been judgments in and also out of Eng- land and the United States which were the beginning of new epochs. Such were those in Hampden's ship- money case (1638) ; the case of the Seven Bishops (1688) ; Winthrop v. Lechmere in New England (1727) ; the prosecutions against John Wilkes (1764) ; Miller Arnold's Case, in Prussia (1779) ^ the Trial of Queen Caroline (1820) ; Chisholm v. Georgia (1792) ; tAiihis Gellius, Lib. V, Cap. 18. 2 Carlyle, Life of Frederick the Great, London, 1858-1865, Vol. X, Ch. 7. 124) THE YOUNG MAN AND THE LAW Dartmouth College v. Woodward (1819) ; the Dred Scott case (1857) ; the Milligan Case (1866) ; the Slaughter House cases (1872) ; Munn v. Illinois (1876), and the Dreyfus court martial in France, of 1899. Cases like these have served to define the real limits of governmental order. They afford new station points. So much has been settled, to reason from. " I am convinced," once said Cavour, " that Order is neces- sary for the development of society and that of all the guaranties of order, a legitimate power which has its roots in the history of the country is the best." To become a well-read lawyer requires not only a study of history, but a philosophical study of it. There is an attraction in this to any thoughtful man, though he may never expect to have occasion to make any money-getting use of his investigation. As Mr. Justice Holmes of the Supreme Court of the United States has said: " It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas. The study pursued for such ends becomes science in the strictest sense. Who could fail to be interested in the transition through the priest's test of truth, the miracle of the ordeal, and the soldier's, the battle of the duel, to the democratic verdict of the jury! Perhaps I might add, in view of the great increase of jury-waived cases, a later transition yet — EDUCATION REQUISITE FOR SUCCESS 125 to the commercial and rational test of the judgment of a man trained to decide. . . . History is'the means by which we measure the power which the past has had to govern the present, in spite of ourselves, so to speak, by imposing tra- ditions which no longer meet their original end. History sets us free and enables us to make up our minds dis- passionately whether the survival which we are enforcing answers any new purpose when it has ceased to answer the old." 1 In the Harleian Miscellany * there is preserved a let- ter of advice from William Cecil, Earl of Salisbury, to a newly appointed Secretary of State, as to the dis- charge of his office, in which occurs this passage : " Touching the Lawyers of the Country, esteem them of learning, so they lack not too much Honesty, but in no wise seem to favor these Demy-Lawyers, except you see Perfection of Honesty, for in all Countries they have least Skill and do most Harm." The demi-lawyer will always be found wherever there is a numerous bar. He is not often the " Perfection of Honesty." He has not honestly studied his profession. He has got into it for what it is worth in the goods of this earth. Philosophical questions will not trouble him, nor would their study be of benefit to him. But for such this volume is not written. There are various methods of legal instruction. One is planned to lay the greatest stress on a study, at least 1 Harvard Law Beviem, Vol. XII, pp. 444, 445, 452. 2 Vol. II, p. 265. 126 THE YOUNG MAN AND THE LAW at the outset, of such text-books as have been described, supplemented by lectures. In another, use is made of them only at the outset, or not at all ; reliance being had mainly on case-books, supplemented by oral explana- tions. Other methods of instructions are combinations of those which have been delineated; embracing some- thing of the distinctive features of each. Lectures are less used in the United States than formerly as a method of instruction. They furnished the easiest way for a teacher of law to teach, or to ap- pear to teach. But the easiest way either of teaching or learning is seldom the best. It takes effort to pro- duce result. Law is not drunk in as our native lan- guage is, or even as our native institutions are. Part of it is derived from days and lands of very different in- stitutions, and very different ideas. Its rules often seem harsh and wrong. They sometimes are. They al- ways are in part, let us believe; else were our legisla- tures busy to little purpose. To learn law one must study law, and the lecture- room is but an indifferent place to study in. One can get suggestions, facts, rules, principles, inspirations there, but he must go elsewhere for reflection, compari- son, digestion, consultation. Nothing falls so dead on the ear as a lecture on an abstract subject, which is written out in full, and read, word by word, to the audience. Having ears they will hear not. Is not the same thing, they may well ask, to be read in printed books, to better purpose, in half the time? A law lecture, to be worth anything to ordinary EDUCATION REQUISITE FOE SUCCESS 127 men, must be delivered in more or less of a colloquial manner. No doubt there must, if it is more than ele- mentary, be full notes before the speaker ; certain prop- ositions should even be written out, and perhaps dic- tated in precise terms; but the general current of his words should flow naturally and freely, as one talks to his friend. Questions should be encouraged on the part of the student, and time cheerfully given for their an- swer, if they are not too difficult, on the spot. This will, no doubt, break in on the continuity of treatment of the topic in hand. It will render the lecture less flnished. It will give more prominence than it deserves to some one or two points. But these will be points which interest at least one student. If obscure to him, they are not unlikely to be obscure to some of his com- rades. The interruption of the line of the lecture chal- lenges the attention of every one in the room. They are curious to hear the question; curious to hear how the professor wiU treat it. He has, at once, a hold on the audience, and if he is a ready man, will not be slow to take advantage of it. But, taking the lecture at its best, it is only the begin- ning of the student's work. It is a hasty review of some large subject by one familiar with it, before many who are unfamiliar with it. To make it of lasting value, there must either be a wearisome taking or tran- scribing of notes, or resort to published works on the same topic. The great bulk of legal education therefore is now through books. A chapter in a text-book, or a group 128 THE YOUNG MAN AND THE LAW of cases in a case-book, is daily given out as a subject of discussion for the next exercise. To make it of the most value, much of exposition, illustration and addi- tion, perhaps a little of subtraction, will be needed in the class-room. The great object in view is not such an examination as to show how much of the day's lesson the student has read and how much he remembers of it, but one to ascertain how well he appreciates the mean- ing and force of what he has thus been asked to study, and how the positions taken in the books can best be defended, criticized, or applied. The members of the class are not to be treated like school-boys. The instructor should try to find out from them not so much how the author in his work, or the judge in his opinion, lays down any rule of action, as why he lays it down. The faculty of reasoning on law questions can be taught in few ways better than this. The fullest and freest questioning should be invited. " Fools can ask many questions that wise men cannot answer." There will be hard questions put, and fool- ish questions put. There will be found in every class the bumptious man who thinks he can pose the pro- fessor, and is only trying to do that; the thick-headed man who hardly understands how to put his questions, or what the question is that he wants to put; the man who has just read some newspaper item about a justice- of-the-peace suit in Maine or Oregon, and wants to know if the decision was right ; and the man who wants advice about some case which his father is thinking of bringing. But there will be also the intelligent, quick- EDUCATION REQUISITE FOE SUCCESS 129 witted student, who is dissatisfied with some conclusion stated in the book, or detects some dark point that has been glossed over in an opinion, and asks what he really wants to know, and because he wants to know it. To make such a recitation most useful, a large class must, of course, be cut up, in college fashion, into divi- sions. There should be an opportunity, daily, to ask every man who is willing, two or three questions during the hour. A few will be unwilling, or but half-willing. A plan often tried is to assign a certain number of the front seats in the class-room to those who are willing, and to assume that those who, on any day, sit elsewhere, are not prepared to be questioned. The shy man, the middle-aged man, who has broken down in some other business, and has determined to try the law, the man who feels above being questioned like a boy, the shirk and the dunce, can then keep in the rear, if they choose. But it may be predicted of any such class that the successful lawyers in it will almost always come from the front seats. The legal profession demands promptness, alertness, readiness to seize and improve every fair chance of fair advantage. These are things for the law student to cultivate, lest, when his day of judgment comes, it is found that the shy man is shy still, the shirk- ing man a shirk still, the stupid man a dunce still, the airy man airy still. They may all build up for them- selves a better character, and the front seat of a class- room is a good place to begin in. Instruction based on a cage-bopk cannot cover as 130 THE YOUNG MAN AND THE LAW much ground as instruction based on questions discussed in a text-book or a course of lectures. Too much space is needed for the frame and setting. The case-book must always be in substance a series of fragmentary discussions of particular topics, interspersed with frag- mentary portions of opinions from reported cases. The discussions are excellent as far as they go. The fragments of the opinions of the courts are well selected. The torso is there : if the arms and legs — the posture and Tnotif — are not, it is only because there was not room for them in the collection. A statue, to pursue the illustration, is a work of art. Every art has its rules and principles. These have been formulated by men of skill and experience. They are expressed in words. They are also ex- pressed in marble. But the marble speaks all that is in it only to the initiated, the instructed. To gaze upon it brings to all men pleasure, elevation of thought, perhaps a realization of history, an impulse toward the ideal in life. But that one may feel thus and think thus does not make him an artist. A study of a thousand statues could not make him even a good stone-cutter. He needs the direction of a master, the light of books, the dry mathematics of anatomy. No science can be learned purely from particulars. The universals must be studied to discover what the par- ticulars mean and whence they sprang. No important case, involving nice discussions, and striking out in new directions, can be of its best service to him who does not know what went before it and what EDUCATION REQUISITE FOR SUCCESS 1^1 has come after it. Law is a science of relations. The first thing for a law student to strive after is a sense of proportion. What is important and what unimpor- tant.'* What is settled and what still in dispute.'' What was the starting-point from which the judge who deliv- ered the opinion set out ? What was the turning point of the cascf^ Is the logic sound, the conclusion cer- tain, the result valuable.? These call for a judgment of one who knows more of the subject in hand than any compilation of cases can put before him. It was with this in view that Mr. Jus- tice Bradley of the Supreme Court of the United States once said of the object of legal study: " The law is a science of principles, by which civil society is regulated and held together, by which right is eliminated and enforced, and wrong is detected and punished. Unless these principles are drawn from the. books which a student reads, and deposited in his mind and heart, his reading will be but a dry and unprofitable business. On the contrary, if these principles are discovered beneath the dry husks of the text-books and reports, if they are extracted, mas- tered and retained, it will not be so much the number of the books studied, as the success in which this digesting and assimilating process is pursued in studying them, which will make the great and successful lawyer." ^ It is of great assistance in forming these general no- tions of what law is, if at some stage in his legal educa- tion the student endeavors to gain some acquaintance with what it was under the Roman emperors. Such an 1 Oreat American Lawyers, Vol. VI, Philadelphia, 1909, p. 402. 132 THE YOUNG MAN AND THE LAW attempt, for most, is best deferred until soon before or soon after entering the bar. The great multiplica- tion of modern agencies for doing the work of the world has forced the creation of new departments of legal science. There is now the law of the railroad, of the telegraph, of the telephone, of the private busi- ness corporation. There is a constitutional law, which determines the limits of governmental action. It is more important for the law student to know something of these subjects, than to read the institutional works of Rome, or the Code Napoleon, and there are few who can accomplish both. Formerly many could, because the circle of strictly American law was so much nar- rower. John Adams, in 1759, when a law student, wrote in his diary this advice to himself : " Labor to get distinct ideas of law, right, wrong, justice, equity; search for them in your own mind, in Roman, Grecian, French, English treatises of natural, civil, com- mon, statute law. Aim at an exact knowledge of the nature, end and means of government. Compare the different forms of it with each other, and each of them with their effects on public and private happiness. Study Seneca, Cicero, and all other good moral writers; study Montes- quieu, Bolingbroke, Vinnius, etc., and all other good civil writers." ^ In a sketch of James Otis, perhaps the greatest Amer- ican lawyer in the years immediately preceding the Rev- olution, President Adams in his old age reiterates these 1 Life and Works of John Adoims, "Vol. 1, p. 46. EDUCATION REQUISITE FOR SUCCESS 133 thoughts. Otis, he wrote, was " a great master of the laws of nature and nations. He had read Puffendorf, Grotius, Barbeyrac, Burlamaqui, Vattel, Heineccius; and, in the civil law, Domat, Justinian, and, upon occa- sions, consulted the Corpus Juris at Large. It was a maxim which he inculcated in his pupils, as his patron in the profession, Mr. Gridley, had done before him ' that a lawyer ought never to be without a volume of natural or public law, or moral philosophy on his table or in his pocket.' " 1 A similar injunction, as concerns the study of morals, was given, in the next generation, by Theophilus Par- sons, afterwards Chief Justice of Massachusetts, to John Quincy Adams, when he was studying under him. Parsons advised him to spend part of his time in the study of ethics ; saying that no man should enter the bar unless his moral principles were strongly established, else the necessity he would come under of defending in- discriminately the good and the bad might lead him im- perceptibly into universal skepticism.^ The way in which the American lawyer formerly sought to master his profession is well described by the late Senator Hoar of Massachusetts in these words : " The old lawyer and the old judge began his education by obtaining, as far as might be, a mastery of legal prin- ciples. In general his first inquiry was, if any legal prob- lems were presented to him, if it were a question of common 1 mies" Begister, Vol. I, N. S. 361. ^Proceedings of the Massachusetts Historical ^gciety, 3d Series, Vol. XVI, p, 349. 134 THE YOUNG MAN AND THE LAW law, ' What is the just general rule? ' If it were the ques- tion of the construction of a statute, ' What construction of the statute will make of it a just general rule? ' In apply- ing the common law to any state of facts he took it for granted that the common law was the perfection of reason, and that it contained what the experience of ages had found to be the most just and convenient rules of conduct for mankind in dealing with each other in matters concerning property, or reputation, or liberty, or life. When the stu- dent, or the counselor at law, or the judge had made up his mind on that, he then considered the adjudged cases with the view of fortifying his own opinion by their authority. If he found them in conflict with that opinion, before yield- ing to them, he did his best to reconcile them with his idea of justice, to limit and restrict them as far as possible and, unless the current of authority were too strong, to get them overruled if they were wrong. The study of law was a study of ethics or moral philosophy." ^ In general, this may be accepted as still describing the influences and motives that should guide the law student who is desirous to win a high place in his pro- fession. It may not unjustly be accused, however, of leading too distinctly to an exaggerated valuation of the common law. The lawyer must always be on his guard against ac- cepting traditional views too unreservedly. Law is a progressive science and he must watch the signs of progress, as they come in view. He must do his part in contributing in law, as in everything else, to general social advancement. But he must know the past in or- 1 Massachusetts Historical Sgviety Proce^dinffS, Vol. XVIII, p. 159. EDUCATION EEQUISITE FOR SUCCESS 135 der to plan the future. He must also stand firm in defense of constitutional safeguards in favor of indi- vidual liberty. Oppression by organized society was a thing to be afraid of until the American and French revolutions set up those safeguards. If they are neg- lected or discredited, and class legislation goes too far, history may repeat itself. An American sociologist has recently given his views as to a proper training for the bar. They are these: " Lawyers need a thoroughly modern education which means that they should not study much law. They need to get the biological or evolutionary point of view, to conceive of society as on the way to being different. The authorita- tive solemnity of the legalist needs to be mitigated; justice does not reside in the breasts of judges unless judges look upon life unfettered by tradition. There is a better intelU- gence than that represented by the law. There is a valid idealism which is everywhere blocked by legalism. It is unfair to measure the intelligence of a people by their institutions, provided a tradition-reversing type is in a position to apply a strangle-hold on new thought through power to interpret and to pass on the constitutionality of laws. With government thus subject to the legal mind, popular intelligence cannot function happily." ^ There is a half truth here. The Anglo-American law grew up under social conditions some of which have passed away, and some are passing now. We come here to a point where the philosophy of pragmatism calls for consideration. Is the theory of a divine revelation of the principles of human law to be 1 Weeks, Ajnericam Journal of Sociology, Vol. XXI, p. 397. 196 THE YOUNG MAN AND THE LAW taught, or to be rejected, or to be passed over in si- lence ? Shall we say, with the Roman Stoics that there is a law of nature, into which every man is born? Or is law a mere expression in each government of the sov- ereign's will? Or is it whatever rule promises to be the most profitable for a people to follow and courts to rec- ognize in their behalf? An inclination towards the theory last suggested seems indicated in an address on legal education given in 1897 by one of the most distinguished of American jurists, Mr. Justice Oliver Wendell Holmes, in an ad- dress before the Boston University School of Law. What was to be taught there, he said was that " a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court ; — and so of a legal right. . . . The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory and more often, and indeed constantly, is making trouble in detail without reaching the point of consciousness. We can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between moral- ity and law. ... I think that the judges themselves have failed adequately to recognize their duty of weigh- ing considerations of social advantage. The duty is EDUCATION EEQUISITE FOR SUCCESS 137 inevitable, and the result of the often proclaimed ju- dicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious, as I have said. When socialism first began to be talked about, the com- fortable classes of the community were a good deal frightened. I suspect that this fear has influenced ju- dicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitu- tions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the eco- nomic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of law- yers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social ad- vantage on which the rule they lay down must be justi- fied, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions." Whatever law may be in its essential nature, it is certain that it moves by logical processes. The law stu- dent who is well trained in these, as applied to other subjects, will find constant occasion to recognize their value in attaining legal truths and detecting legal 138 THE YOUNG MAN AND THE LAW fallacies. Judge George H. Smith, in his treatise on Logic,^ gives some apt illustrations of this. One fault of statement obviously is an illicit substitution of terms. Austin, for instance, describes law as the product of sovereignty, and sovereign power as in- capable of legal limitation, and then refers to it as consequently " legally despotic " ; whereas to be legally despotic is to be despotic by law, and — according to Austin — law is only the expression of the will of the sovereign. So Chief Justice Marshall, in the Georgia Land Fraud case,^ held that an executed grant was a contract within the meaning of the constitutional pro- hibition of State laws impairing the obligation of con- tracts; and so that impairing the obligation of a con- tract was effected by impairing a past grant. The term " impairing a contract " was thus substituted, according to Judge Smith, for the term " impairing the obligation of a contract." Be this as it may, there certainly are many cases in courts in the argument of which there is either an illicit substitution of new terms as the equivalent of terms previously used, or an illicit substitution of a new sense for a term, previously em- ployed in another — the fallacy technically called Equivocation. But the faculty of logical reasoning is one of those that, for ready use, must be born in the man. It was born in Lincoln, of whom John Hay said that he could 1 Smith, Logic or the Analytic of Explicit Reasoning, New York, 1901, p. 200. Cf. id., 163. 2 Fletcher v. Peck, 6 Oranch'a Reports, p. 135. EDUCATION EEQUISITE FOE SUCCESS 139 " rake a sophism out of its hole, better than all the trained logicians of all the schools." There are many men on whom a legal education would be thrown away, and many on whom it daily is being thrown away. Education does not create. It im- proves. It discloses what is already there. It consists in drawing out — leading out — what already exists, inside. We develop from within. We are what we are ;> but it takes a drawing out process to show what we are. Somebody has said that every human being is com- posed of two human beings: one of them always very sagacious, and the other of them not at all sagacious. If so, the sagacious being does not show himself simply in throwing up the hand in order to ward off a sudden and unexpected blow, or any of those movements which we are pleased to call instinctive. He shows himself also in sound moral sense ; in seeing a point, as we say ; in deliberate good judgment; in every day practical wisdom. Education cannot make lawyers. It can help draw out and put in more active shape those inherent quali- ties to which I have alluded, and others of like kind. One of the leaders in his time of the American bar, Charles O'Conor, once said : " A great lawyer is not the one who knows the most law, but who understands exactly the point involved." Such an analytic faculty is one of God's gifts, Man can sharpen, but not supply it. The inner man is the real man, but in half the world he does not have a fair chance to show himself at 140 THE YOUNG MAN AND THE LAW its best. The leading American law schools give this chance to those who enter them. If they are men who have made the most of their previous education, they will be pretty certain to make the most of this. If they are college graduates, their rank in College wiU probably compare closely with that in their law classes. It has been often said that a man who has been a shirk in college may prove a leader when he passes into the law school. In fact, this seldom happens. Statis- tics show that the better scholars in law are those who have been among the better scholars during the period of their previous training. -"^ A lawyer's education never ends. What may suffice to secure his admission to the bar simply ends one stage of it. The best lawyer is the one who makes the most progress in the second stage. The first years of this are the most important. He will probably have ample time for the work. Entering the bar to most men brings perforce the opportunity for further study. A young lawyer seldom has clients enough to employ all his time. If he begins as an office clerk, he will gener- ally have his evenings, at least, at his own disposal. He will prosper best in after years, if he uses these first ones for close and continued study of two things: — law and literature. Senator Chauncey M. Depew has urged this in these words : " The valedictorian of the college, the brilliant victors of the Moot Courts who failed to fulfill the promise of their 1 See Haroard Law Beview, Vol. XXIV, p. 497. EDUCATION EEQUISITE FOE SUCCESS 14<1 youth; have neglected to continue the study and lost the enthusiasm to which they owed their triumphs on mimic battlefields. Business men may have a lucky stroke of fortune; preachers may buy or borrow sermons; quacks may win riches by a patent medicine; but the lawyer can rely on no one but himself. He is like the knight in the ancient tournament, when the herald sounded the trumpet, and he rode down the lists. Whether he splintered his enemy's lance or was unhorsed himself, depended upon his own prowess and skill. Upon his advice men risk their character and fortunes. In the exigencies of the trial he wins or loses by his own knowledge of his case, his ability to draw from a well stocked armory the principles to meet unexpected issues, his readiness to seize and turn to instant advantage testimony which can help to avert the force of that which can harm, by his trained ability to so discern and analyze amidst the mass of conflicting evidence the truth he seeks, and so present his cause to the court and jury, that he brings them both to his own convictions. This can only be done by thorough preparation and laborious study continued all through life. It is very di£Scult, with no immediate motive to offer incentive, to study and read while waiting for clients. It requires discipline, and is discipline. It tests the question of fitness for the work of the profession." CHAPTER VI THE IDEALS OF THE PEOPESSION The maintenance of public order under law. And of justice. Altruism. Malesherbes' defense of Louis XVI. Disregard of personal interest, for others' salte. Modem improvements in the American bar. Its influence in legislation. Law, an applied sci- ence. The common law not the perfection of reason. Not fitted to secure justice, in all lands. Justice inevitably comes, some day, to its own. Carlyle's testimony. Cicero's characterization of the rule of right. The attacic of Mephistopheles, in Faust, on inherited laws. The opportunity of the lawyer to develop law. Lord Eldon's creation of a new rule of equily. Ignorance of law, not knowledge of it, leads to litigation. Lawyers hold a place of duty to the State, and to Society at large. Chief Jus- tice Ryan's picture of this duty both for lawyers and Judges. EvEEY man has his ideals, though he may not name them such, or even recognize that they exist. The lawyer cannot fail to recognize the ideals which he ought to pursue in justice to his profession. His whole work in life is devoted to the definition and establishment of public order under law. No one ought to seek to share in that work, who does not feel its essential nobihty, and who is not ready to adorn and defend it with the best that in him lies. His practice may be small ; his efforts poor. All the more should he struggle to do his part in making justice in common things known and con- stant. He must be ready to say with Lowell : " Still through our paltry stir and strife Glows down the wished Ideal. 142 THE IDEALS OF THE PROFESSION And Longing molds in clay what Life Carves in the marble Real." A lawyer's ideals are imposed upon him by that sentiment of altruism which is the life of his profession. Noblesse oblige. Nobility under our institutions does not belong to any individual. If some foreign sovereign decorates an American with a title, it confers no preeminence upon him here. But under our institu- tions, that nobility of purpose and character which belongs to the legal profession in other countries, be- longs to it in equal measure in the United States. It is everywhere, as concerns its most conspicuous office — the advocacy of causes — a profession of strenuous and chivalric endeavor, and honored, as such, now as much as in any former times or other lands. It is the pro- fession of those who contend for the rights of others. Altruism and personal sacrifice are its foundations. This sentiment was the inspiration of Malesherbes, when he claimed the honor of defending the king whose disregard of his counsels had cost him his crown and was to cost him his life. It was the inspiration of Denman in supporting the rights of Queen Caroline ; of Evarts before the Senate of the United States on the impeachment of President Johnson. Great occasions like these come seldom, but the same qualities of advocacy are displayed and the same duties of advocacy discharged daily, in every American Stat.e. Disregard of personal interest in fulfillment of pro- fessional obligations ; sacrifice of personal convenience to secure the interests of others ; putting all one's pow- 144 THE YOUNG MAN AND THE LAW ers of mind and body in one supreme effort of concen- trated energy at the service of clients ; — these are the common story of the contests of the bar. The advocate can achieve the ideals of his profession without eloquence. Simple, plain, straightforward statement is often better than eloquence. He can achieve them, without any legal learning that could be called profound. A fair knowledge of law, with the power to make the most of what you know, is generally enough. He cannot achieve them without a high sense of the rights of man, as man; without a sincere rever- ence for the institutions of human justice; without patient, self-forgetful, chivalric devotion to his client's cause. In a recent treatise by the dean of one of the prin- cipal American Law Schools, he says that, taking into account the entire history of the American bar, there has been a deterioration "both in its persoimel, its corporate mode, and consequently in the public influence wielded by it." ^ I cannot agree with him. The lead- ers everywhere compare well with the leaders of the eighteenth and nineteenth centuries. The " corporate mode " of the bar has been immensely bettered and assured, and its public influence concentered and strengthened by the formation of the American Bar Association in 1878, and of the numerous affiliated State and local bar associations, a few before, but most after that event. With their aid, the bar has succeeded in greatly 1 Stone, Law and its Administraiion, New York, 1915, p. 165. THE IDEALS OF THE PROFESSION 145 raising the standard of qualification for admission to it ; in relieving the Supreme Court of the United States from a load of business which was beyond its powers to sustain; and in the abrogation of many rules of judicial procedure, some inherited from the prejudices of a half civilized society, and some imposed by unwise statutes. " Ideas," as Wendell Phillips once said, " strangle statutes." The American bar has come under the influence of new ideas, and its work in legisla- tion has been to repeal here and add there, in general conformity to modem thought. The great ideal to be held up before the members of every profession, is to make it better. For the lawyer it is first to work out a clearer conception in his own mind of the nature of law as an applied science, and its relation everywhere to its national environment. One of the English leaders of thought as to the philosophy of the law, Sir Frederick Pollock, has spoken thus of this subject of endeavor: " We have long given up the attempt to maintain that the common law is the perfection of reason. Existing human institutions can only do their best with the conditions they work in. If they can do that within the reasonable margin to be allowed for mistakes and accidents, they are justified in their generation. Even their ideal is relative. What is best for one race or society, at a given stage of civilization, is not necessarily best for other races and societies at other stages. We cannot say that one set of institutions is in itself better or more reasonable than another, except with reference, express or implied, to con- ditions that are assumed either to be universal in human 146 THE YOUNG MAN AND THE LAW societies, or to be not materially different in the particular cases compared. It may perhaps be safe to assume, in a general way, that what is reasonable for Massachusetts is reasonable for Vermont. It would not be at all safe to assume that everything reasonable for Massachusetts is reasonable for British India, nor, indeed, that within British India what will serve for Lower Bengal will equally well serve for the northwest frontier. The first , right of every system, therefore, is, to be j udged in its own field, by its own methods, and on its own work. It cannot be seen at its best, or even fairly, if its leading conceptions are forced into conformity with an alien mold. A sure mark of the mere handicraftsman is to wonder how foreign- ers can get on with tools in any way different from his own. . . . Development is a process, and not a succession of inci- dents. Environment limits and guides the direction of effort; it cannot create the living growth. Hence it seems to follow that a system which is vital and really individual either must be resigned to remain in some measure inarticu- late, or must have some account to give of itself that is not merely dogmatic and not merely external history, but com- bines the rational and the historical element. In other words, its aims are not completely achieved unless it has a philosophy; and that philosophy must be its own." To a thoughtful man, and to some extent even to a thoughtless one, the practice of law calls attention daily to the causes of things. Is the result of this or that suit to promote justice, or to postpone it.? For that somehow justice will finally be worked out, is the ideal of law to be upheld at all times by the legal profession. Carlyle brought this message sharply home in his Past and Present : " Alas," he says, " how many causes that can plead THE IDEALS OF THE PROFESSION 1*7 well for themselves in the Courts of Westminster ; and yet in the general Court of the Universe and free Soul of Man, have no word to utter ! . . . For it is the Court of Courts, that same; where the universal soul of Fact and very Truth sits President; and thitherward, more and more swiftly, with a really terrible increase of swiftness, all causes do in these days crowd for revisal, for confirmation, for modification, for reversal with costs. Dost thou know that Court ; hast thou had any Law-practice there? What, didst thou never enter; never file any petition of redress, reclaimer, disclaimer, or demurrer, written as in thy heart's blood for thy own behoof or another's; and silently await the issue? Thou knowest not such a Court? Hast merely heard of it by faint tradition, as a thing that was or had been? Of thee, I think, we shall get little benefit." The court of conscience, administering the golden rule, lies within the range of ideals, entertained in com- mon by lawyers in ancient and lawyers in modern times. Two thousand years ago Cicero declared that " there is one rule of right (jus) by which human society is bound together, and which is constituted by one law; which law is the rightful reason of command and prohibition ; and he who is ignorant of it is unjust, whether it be written anywhere or nowhere. But if justice is con- formity to written laws and public institutions, and if such a one says that all things are to be measured by their utility, let him be careless of laws and break them if he can, who shall judge that this is for his advantage. So it is that there is no justice anywhere if it do not 148 THE YOUNG MAN AND THE LAW exist by nature, and that which is set up for its utility be destroyed for another utility. And if nature shall not be ready to confirm the rule of right all virtues will perish. For where shall liberality, where love of coun- try, where piety, where the desire of meriting well from another or doing him a favor be able to exist.? For they are born of this, that by nature we are dis- posed to love our feUow men; which is the foundation of the rule of right. Nor only are services for men cut ofF, but worship and religious observances as to the gods, which I esteem to be preserved not from fear but from that union which exists between God and man." ^ It will be observed that the great orator here reaches much the same conclusions as those announced by Jesus Christ and Paul in the following century.^ The one, unvarying ideal of the legal profession is to ^ advance and perfect the law which it is created to call into action. It is always in danger of pushing this pur- pose of improvement too far. It is always in greater danger of not carrying it far enough. Lovers of Goethe will recall the brilliant scene in Faust's study, when Mephistopheles dons a Professor's cap and gown, and grants an interview to a student who wishes advice as to whether he should study law for his profession. My dear boy, he replies, keep clear of that. Laws and notions of right are inherited like an eternal 1 Cicero, De Legibus, I, XV. iMark, Ch. XII, 31; 1 Oonnthiam, Ch. XHI. THE IDEALS OF THE PROFESSION 1*9 disease : they slide themselves along from generation to generation, and spread imperceptibly from place to place. Reason becomes nonsense, and the best actions are called wrong. Wo to thee that thou art somebody's grandson ! Of the legal notions that we are born with there is unfortunately never any question made. If we strip this charge of its poetic intensity, it is true. The lawyer, and particularly the American lawyer, is naturally a conservative force in human society. He professes a science which some of his pre- decessors at the bar have praised as the perfection of reason. He must steadily aim to guard himself against sharing that opinion. He must be ready to confess that there are faults in American law and judicial pro- cedure which can be safely eliminated, and to do one man's part, at least, towards getting rid of them. A lawyer is potentially a discoverer and may have the joy of one. Law is a progressive science. It changes for the better, so far at least as that springing from custom and common consent is concerned, wherever society is advancing. This gives the young lawyer a great opportunity, a high and not remote ideal. The main principles of law are unchangeable, but new corollaries are always coming into view. He may be the first to discern one of them or to put it in an assured position. If so, he will have his reward. Lord Chancellor Eldon began his professional career without influential friends and in circumstances of real 150 THE YOUNG MAN AND THE LAW poverty. A chancery decree was to be entered, to which all the solicitors engaged in the cause had agreed. One of them retained John Scott (which was the name of the future chancellor) to give his client's formal consent in court before Lord Thurlow. The case turned on the equitable nature and incidents of a fund which was to be, but had not yet been, turned into property of a different kind. A will had directed this change of form, but before it was made, the decree was to be entered. It struck Scott, as he read the papers, that in equity a thing ought to be regarded as done, which ought to be done, wherever this would promote a fair accomplishment of the intention of those who im- posed the obligation. In the case before him that doc- trine, if applied, would secure an important advantage for his client. He asked the solicitor's authority to raise the point before the court, and received it, on condition that there should be no charge for arguing it. The court took his view and his fortune was made. He had become the father of a far-reaching rule of right, ever since known as that of " equitable conver- sion." On the other hand, an ancient rule should not be varied or a new one adopted without careful thought. The chance of this brings an element of uncertainty into the practice of the profession before the courts. The better the education for the bar, the more fully will the student come to feel that while law may be and in prin- ciple is a thing of certainty, the result of its adminis- tration often is not. With this knowledge, a lawyer THE IDEALS OF THE PROFESSION 151 will be always cautious in advising the entry into litiga- tion. Cicero, in the dialogue which opens his treatise De Legibus, throws this distinction into strong light.^ Asked to explain what law is, he begins by explaining its foundations in the nature of man. Quintus commends this, saying that those who describe the law of a State otherwise, describe not so much justice, as ways of liti- gation. Not so, Quintus, is the reply. Ignorance of law is litigious rather than knowledge of it. The " bidding prayer " of Oxford University asks for aid to turn out men " qualified to serve God in Church and State." The lawyer's place is one of service in the State. For this he exists, as a member of a privileged profession, to which is committed a large part in the administration of that law which, however we may name the author, has certain principles as invariable as the law of gravity. Its ideal is to do this service in large and in trivial affairs, alike ; by the use of such powers as one may have, be they great or small ; with a loyalty to the constant principles of law, not inconsistent with the hope of amending and improv- ing it in minor things; always striving to aid in the world-wide effort, ever being made, to make law and justice one and the same. In this spirit Chief Justice Ryan of Wisconsin, in an address before the Law School of the University of Wisconsin, used this language: 1 Lib. I, Cap. 6. 152 . THE YOUNG MAN AND THE LAW " This is the true ambition of the lawyer: To obey God in the service of society; to fulfill His law in the order of society ; to promote His order in the subordination of society to its own law adopted under His authority; to minister His justice by the nearest approach to it under the munic- ipal law which human intelligence and conscience can ac- complish. To serve man by diligent study and true counsel of the municipal law; to aid in solving the questions and guiding the business of society according to law; to fulfill his allotted part in protecting society and its members against wrong, in enforcing all rights and redressing all wrongs; and to answer before God and man according to the scope of his office and duty for the true and just admin- istration of the municipal law. There go to this ambition, high integrity of character and life; inherent love of truth and right; intense sense of obedience, of subordination to law, because it is law; deep reverence of all authority, hu- man and divine; generous sympathy with man, and profound dependence on God. These we can all command. There should go high intelligence. That we cannot command. But every reasonable degree of intelligence can conquer adequate knowledge for meritorious service in the pro- fession." ^ These words came from a great judge and one who set a high standard also of duty for Uie bench. He composed a prayer in a similar line of thought for his daily use, which is here given both as one of the gems of judicial composition, and one of the lights by which every judge might well guide his official course, in seek- ing to promote his ideal of justice on earth: " O God of all truth, knowledge and judgment, without 1 Winslow, The Story of a Great Court, p. 316, THE IDEALS OF THE PEOFESSION 153 whom nothing is true or wise or just, look down with mercy upon Thy servants whom Thou sufferest to sit in earthly seats of judgment to administer Thy justice to Thy people. Enlighten their ignorance and inspire them with Thy judg- ments. Grant them grace truly and impartially to ad- minister Thy justice and to maintain Thy truth to the glory of Thy name. And of Thy infinite mercy so direct and dispose my heart that I may this day fulfill all my duty in Thy fear, and fall into no error of judgment. Give me grace to hear patiently, to consider diligently, to under- stand rightly and to decide justly. Grant me due sense of humility, that I be not misled by my willfulness, vanity or egotism. Of myself I humbly acknowledge my own unfit- ness and unworthiness in Thy sight, and without Thy gracious guidance I can do nothing right. Have mercy upon me a poor, weak, frail sinner, groping in the dark; and give me grace so to judge others now, that I may not myself be judged when Thou comest to judge the world with Thy truth. Grant my prayer, I beseech Thee, for the love of Thy son, our Saviour, Jesus Christ. Amen." ^ 1 Ibid., p. 313. THE END INDEX Accident cases, S7 Adams, Charles Francis, 2d, 51 Adams, Henry, 51. Adams, President John, 16, 44; plan of legal study, 132, 133 Adams, President John Quincy, 44 Advertising, 59 Advocates, personal sacrifices, 143 American Bar Association, 49, 54, 61, 144. American Bar has grown bet- ter, as time went on, 144 Amicus cv/riw, 11 Anacharsis, 101 Analytic faculty, 139 Andrew, Gov. John A., quoted, 23 Antiquated procedure, 91. Arbitration, international, 67 Argumentation, legal, 16, 18; brevity, 26, 27 Aristotle, 101 Art, law is an, 22 Attorneys. See Lawyers. Deg- radation of name, 73 Austin, John, on sovereignly, 138 Baldwin, Roger S., 46 Ballantine, Sergeant, 48 Bar, attractions of, 5 ; discipline of, 9; American, 14; tra- ditions of, 16; English, 42, 76; overcrowded, 43, 44, 54; a 155 monopoly, 60; esprit de corps, 60 Barristers, number of, 43; in- come of, 46; no partnerships of, 50 Bayard, James A., 106 Benjamin, Judah P., 47 Bleckley, Chief Justice, 77, 92, 99 Boards, practice before, 66 Boileau-Despreaux, 71 Bolingbroke, quoted, 13, 72 Bradley, Justice Joseph P., quoted, 131 Bramwell, Baron, quoted, 78 Bright, John, quoted, 27 Brother, term of address be- tween lawyers, 62 Brougham, Lord, 20 Bryce, Lord James, 41, 46 Burke, Edmund, 24; quoted, 28, 54, 111 Business, variety of legal, 62 Campbell, Lord, 76 Carlyle, Thomas, quoted, 27, 146 Carter, James C, quoted, 30 Carter, Orrin N., quoted, 77 Case-books, 120, 125, 126, 128- 131 Case-lawyers, 103 Cecil, Lord William, quoted, 125 Character, good, 106, 162 Chitty on Pleading, 16 Choate, Joseph H., 46 156 INDEX Cicero, quoted, S, 10, 34, n. 1, 35, 32, 83, 147, 151 Clients, duties to, 80, 89, 108 Cockburn, Lord, 81 Codification, 95-97 Coke, Sir Edward, on Littleton, 16; income, 47 Coleridge, Lord Chief Justice, 113 Coleridge, Samuel T., quoted, 31, 87, 111 Common Law, 93-95, 134, 145 Comparative Law, 131, 132 Conflict of laws, 120 Conkling, Roscoe, 46 Construction of documents, 33 Contingent fees, 49 Counsel, right to have, 8 Courts, authority and function, 7; preventive powers, 40; making law, 118; declaring statutes unconstitutional, 119 Crispe, Thos. Edward, Reminis- cences quoted, 50 Cromwell, Oliver, 30 Cross-examination, 90 Curran, John P., 51, 53, 114 Curtis, Justice Benjamin R., 56 Custom, 6, 149 Denman, Lord, 143 Depew, Chauncey M., quoted, 140 Dialectic, 18 Divine law, 135 Doe, Chief Justice, 102 Duty to clients, 83 Dwight, Professor Theodore W., 107 Education, legal, 115-141; pro- gressive character of, 54; never ends, 115; beginning of, 116; from books, 115; lec- tures, 136; statutes, 116; in an office, 122; different meth- ods of, 135 Edwards, Pierpont, 44 Eldon, Lord, 47, 149, ISO Ellsworth, Chief Justice Oliver, 79 Eloquence, 144 Emerson, Ralph Waldo, quoted, 113 Employers' Liability Acts, 56, 57 Equitable conversion, ISO Erskine, Lord, 47; opinion of a trial lawyer's duty, 79, 117, 118; studying philosophically, 132, 124 Equivocation, 138 Estates, practice In settling, 66 Ethics, legal, 49; standard of raised after 1850, 74 Ethics, studying for its bearing on law, 133 Evarts, Wm. M., 46, 143 Evidence, legal, 23; artificial rules, 100 Evolution, law a process of, 135 Faust, 148 Fees, amount, 44-49, 55, 56; contingent, 49 Forbes, Sir Wm., 83 Forms, necessity of, 91 Fraternity of the Bar, 60 Gladstone, Wm. E., 27 Goethe, 148 Golden rule, 148 Great Britain, unity of legal system, 119, 120 Growth of law, 97 Guilty, defending the, 79 et teq. Habits, a lawyer's, 87 INDEX 157 Hadley, Arthur T., quoted, 62 Hague Tribunal, 67 Hale, Sir Matthew, 8ft Haller, 19 Halsbury, Lord, quoted, 78 Hamilton, Alexander, 45, 49, 60 Hamlet, 71 Hay, John, 138 Hegel, 122 Hermeneutics, 34 History, lawyers must study, 14 Hoar, Senator Geo. F., quoted, 133 Holmes, Justice Oliver Wendell, quoted, 124, 136 Hubbard, Thomas H., 89 Ideas, 14S Ideals of the legal profession, 142-153; justice the basis, 146 Imagination, 107 Influence, a lawyer's, 37 Institutions, changes in legal, 15 Instruction, legal modes of, 115-141 Interpretation, legal, 34 Isadora of Seville, quoted, 39 Jacks, Professor, 24 Jeffreys, Chief Justice, .13 Johnson, Reverdy, 45 Johnson, Samuel, 81, 83 Joubert, 86 Judges, function of, 7 ; must be lawyers, 37 Judgments, as historical land- marks, 123 Judicial legislation, 95-99 Jury, trial by, 25, 100-102; de- velopment historically, 124 Jus, 147 Justice, underlies law, 6, 151, 182; political, 23; sometimes works injustice, 95 Labori, Maltre, 110 Land titles, searching, 57, 58; Torrens system, 58 Law, both a science and an art, 120, 121; a science of re- lations, 131 ; an applied sci- ence, 145; definitions of, 5, 6, 37, 87; how made, 7; com- parative, 16, 131, 132; justice in, 37; relation to civilization, 33; changes in, 98, 134, 149; official statements of, 118; sci- entific arrangement of, 118; a silent historian, 132; Law Schools, 118, 130; class-room exercises, 136-130; what they offer, 140 Law-suits, theory of, 82; of doubtful issue, 86 Lawyers, function in court, 7; admission to the bar, 7; have a franchise, 8; duties and aims, 142; right to have serv- ices of, 8; each is an officer of court, 8; advising not to sue, 10; office of, 21; duty of research, 38; study of litera- ture, 38, 140; hold a public trust, 33, and office, 35; influ- ence of, 37; on government, 38; liability for negligence, 49; generally inclined to con- servatism, 149; groups of, 62, 63; variety of functions, 64; popular view of, 71, 73; trick- iness, 72, 73; conditions of success, 106 et aeq.; young lawyers have great oppor- tunities for improvement, 140 League of Nations, 68 Lecky, Wro, H. H., 29 168 INDEX Lectures in Law Schools, 126 Legal Aid Societies, 56 Legal education, cannot make lawyers, 139; in sociology, 135; never ends, 140; aims and ideals, 153 Legislation, a lawyer's part in, 29, 30; judicial, 95-99 Lincoln, President, quoted, 23, 36; Seward's estimate of, 25; logical powers, 138 Litigation, discouraging, 36, 69 Litigiousness, 9, 151 Logic, 16, 137 Macaulay, Lord, quoted, 75 Mandeville, quoted, 72 Malesherbes, 143 Mansfield, Lord, 19, 47 Marshall, Chief Justice John, 45, 138 Martin Luther, 44 Mason, Jeremiah, 44 Maxim, Sir Hiram S., 75 Maxims, legal, 17 Milton, quoted, 18 Ministry, claims as a profession, 1-3, 31 Moral philosophy as a legal study, 133, 134 Morality sometimes confused with law, 136 Napoleon, influence on the courts, 39 Nature, laws of, 3^, 135 O'Conor, Charles, quoted, 139 Office lawyers, 64, 112 Oratory at the bar, 25, 108 Ordeal, 124 Order, public, 143; the soul of law, 134 Otis, James, 132, 133 Oxford University, " bidding prayer," 151 Pandects, 21 Parker, Courtlandt, quoted, 31 Parsons, Chief Justice Theophi- lus, 45, 133 Particulars, study of, 130 Paul, St., 148 Pendennis, 13 Personal qualities, 106 Peter the Great, 33 PhilUps, Wendell, 145 Philosophy of law, 31 Pinckney, Wm., 45 Pleadings, legal, 21 Pollock, Sir Frederick, quoted, 6, 165 Pomeroy, Professor John N., quoted, 40 Pope, Alexander, quoted, 71 Practice, sharp, 75 Pragmatism, 135 Prayer, the Oxford "bidding prayer," 151; Chief Justice Ryan's, 153 Preparation for the Bar, 1 Principles, decisions resting on, 111 Private way, 98 Procedure, legal, 15, 91 et teq.; judicial control over, 103 Profession, choice of, 1-4; many now to choose from, 43; over- crowding, 42 ; character of le- gal, 72 Public service, 31 Psychology, 25, 29, 122 Queen Caroline's case, 80, 81 Quickness, 113 Reading, Lord Chief Justice, 103 INDEX 159 Relations, legal, 20, 93 Remedies, legal, 24 Reports, judicial, 7, 102-104, 118, 120 Retainer, refusing a, 84 Reverence, 22, 23 Rhetoric, 16 Rights, duty to enforce, 10; un- justly exercised, 19; legal remedies, 24 ; unenforceable, 27 Robinson, Professor W. C, quoted, 120 Roman law, its view of lawyers, 21, 35; defects in, 97; study of, 131, 133 Roosevelt, President Theodore, quoted, 38 Rousseau, Jean Jacques, quoted, 28 Ruskin, quoted, 3 Russia, lawyers in, 33 Ryan, Chief Justice, quoted, 94 Savigny, quoted, 16 Science, Law a, 35 Self-confidence, 111 Sempronius, AseUio, 123 Service, public, 42, 151 Seward, Wm. H., 26 Schaick, Peter Van, 74 Schiller, 108 Schopenhauer, 18, 70 Scott, Sir Walter, 15, 72 Shaw, Chief Justice Lemuel, 45 Sherman, Roger Minott, quoted, 1,2,3 Sidney, Algernon, trial of, 11 Sill, Edward Rowland, quoted, 12 Smith, Judge George H., on the aid of law from logic, 138 Smith, Sydney, 53 Social advancement, as a ju- dicial consideration, 136, 137; changes basis of law, 145, 146 Socialism, 137 Social justice, 69 Social progress, 124, 134, 140 Social service, a lawyer's part in, 42 Society, organized, 135 Sociology, as a legal study, 135 Socrates, 20 Socratic plan of teaching, 127 Solicitors, English, 43, 64 Sovereignty, Austinian theory, 138 Specialists, 63 Spinoza, quoted, 10 Stamp tax on writs, 74 Statutes, a lawyer's influence in making, 29, 39; and in con- struing, 84; rules for fram- ing, 39; must be in harmony with public opinion, 123; con- struction of, 134 Stephen, Sir James, 97 Stoic philosophy, 136 Story, Justice Joseph, 45 Swift, Dean, quoted, 26, 102 Swinney's case, 84 Tenderden, Lord, quoted, 37; income, 47; character as judge, 76; remarks on forms, 88 Thackeray, criticism of lawyers, 13 Title, searching land records for, 58 Tocquevnie, Alexis de, quoted, 40 Tooke, Home, 25 Tradition, 134 Trial-lawyers, 112 Truro, Lord Chancellor, 48 160 INDEX Trustees, lawyers as, 65 Wigmore, John H., quoted, 16 Truth, 18, 147 Wirt, William, 84 Wythe, Chancellor George, 84 Universals, study of, 130 War, raises new questions, 67 Youth, in some things a benefit Webster, Daniel, 45 to a lawyer, 24 PBINTED IN THE UNITED STATES OF AMBBIOA KF 297 Bl8 c.l Author Baldwin, Vol. Simeon Bben Title Copy Youns man and the law Date ■Rnrrn-wfr'"! 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