QJnrnf U ICaui ^rljnnl ffiibtaty KF 272.W29"l872""*^ "'"''^ The original of tiiis 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/cu31924024516472 A. POFUIL^R AND PRACTICAL INTRODUCTION TO LAW STUDIES. By SAMUEL ^AEKEN, or TUB INNER TBHFLB, BSQUIRB, D. C. !« OTOH F.R.B., ONE OP UElt UAJBBTT'S COVNSBIi, KBCOHDBR OF HULU AND HAATER IH LUNACT. SimuL ac duraverit setas Ifembra ammumque taum» nabis sine cortice. — Hon. FROM .THE THIRD LONDON EDITION. TWO VOLUMES IN ONE. EDITED BY \VILLIAM M. SCOTT. Of the Albany Bae. ALBANY: WEAKE C. LITTLE & CO., LAW PUBLISHERS AND BOOKSELLEBS. 1872. "d^/^^V^ Eiitererl accorning to Act of Con^'css, in tlie 3'ear Eighteen Hundred and tieventy-tw'o, BY WEABE C. LITTLE, In the Clerk's Office of the Librarian of CongresSi-at Washington ALBANY, N. Y.: VAN BENTHUYSEN PRINTING HOUSE, Stereotypers, Pkinteks and Bindebs.- TO THOSE lOTIlfG GENTLEMEN, WHO AIM TO BECOME LAWYERS, AKD WHO ARB WILLING TO WORK IN THE MANNER SO ADMIRABLY POINTED OUT BY THE AUTHOR, THE PRESENT EDITION IS INSCRIBED FUBLISHESS. PEEFACE TO THE LATEST AMERICAN EDITION. The present editioji of Wasreis's Law iStodies, has been prepared with especial reference to the use of Ame- rican Law-students. It has been carefully compiled from the latest London edition, in which the distin- guished author has given to our profession a work which, for its clearness of style, depth of thought, and purity of purpose, will cause it to remain an enduring monument to his fame. Of him it may be truly said, that he has paid the debt which Lord Bacon holds every man to owe to his profession. The editor has found it a most ungrateful task to abridge — he has been reminded, at every step, of the language used by Sir William Blackstone, where he says, in speaking of a like duty, "it is impossible to abstract or- abridge it, without losing some beauty and destroying the chain of the whole," Nothing but the necessity of bringing the work with- in the compass of a single volume, would justify abridge- ment. Finally it is hoped that this edition, the fruit of much care and pains, (more in rejec'.ting, than in adopting,) may meet the approbation of the class for whom the author designed it. vi Pkefacb. The index has been carefully revised, so that it may correspond to the present edition. The language of the author is most cordially endors- ed, where he recommends this prayer as " worthy of being engraved on the memory and heart of every stu- dent of the law " : " Almighty God, the giver of wisdom, without whose help re- solutions are vain — without whose blessing study is ineffectual, enable me if it be Thy will, to attain such knowledge as may qualify me to direct the doubtful, and instruct the ignorant; to prevent wrongs, and terminate contentions; and grant that I may use that knowledge which I shall attain, to Thy glory, and my own salvation, for Jesus Christ's sake. Amen." W. M. S. AiMnrz, Julg, 1872. TABLE OF CONTEITS. OHAPTEB I, PAGE. Law as It Is, - - - . . . , . i CHAPTEE II. Traiiting fob the Bae, - • - . - - 32 CHAPTER III. CONSIDBEATIONS IN THE CHOICE OF THE BAR, 39 CHAPTER IV. Students — their Characters, Objects, Pretentions and Prospects, 55 CHAPTEE V. On the Formation of a Leoaii Character — General Conduot, • - 69 CHAPTER TI. On the Formation of a Legal Character— Mentai Discipline, - 95 CHAPTEE VII. On the Formation op a Legal Character — &eneral Knowiedge, . 118 Section I — Preliminary Considerations — Acquisition and Use of Gen- eral Knowledge. II — Classics, Language, Logic, EhetOric, Elocution. Ill — Geography, Chronology, History. IV — Political Philosophy, Political Econoiny. V — ^Moral and Mental Philosophy, MedicalJorisprudenoe, Mer' cantile and Agricultural Knowledge, Science and Arts, Patent Law. CHAPTEE VIII. Ethics of the Bar, - . ^ 184 CHAPTER IX. Evidence, ' - , , , 864 CHAPTER X, Commencement and Prosecution of the Praotioajj Stfdt op the Law, ...... .397 viii Table of Contents. CHAPTER XI. PAGE. On Exercising the Mental Faculties, while Acquiring Legal Know- iiEDGEj - - - - 323 CHAPTER XII. Readiness and Accuracy in the Application of Legal Principles, - S39 CHAPTER XIII. Facility of Reference, - ... 344 CHAPTER XIT. The Masteet op Complicated CAses, - - - - 349 CHAPTER XT. How to Promote Distinctness of Thought, and Recollection, - 352 CHAPTER XVI. Leading Cases, - 357 CHAPTER XVII. The Art of Effectually Stating viva voce, Facts and arguments. Debating Societies, - - - - - 359 CHAPTER VIIL The EEPOBTSr-EEADiNo &]/,. Ash ExEKCiSES Upon Them, - - 366 CHAPTER XIX. Conduct in Chambers, - . 373 CHAPTER XX. Going Down to Court, - - - . 377 CHAPTER XXL Common Placing, - - - . . .... 390 CHAPTER XXII. Hints to Young Counsel, . . 335 CHAPTER XXIII. Constitutional Law, and Constitutional History, - . 395 Section I— The " Law and the Constitution.'' 395 II — ConstiftHtional History. 424 III— Authentic Acts and Records of English History. 434 Conclusion, - . .... 47a INTRODUCTION TO LAW STUDIES. CHAPTER I. Law As It Is. The first glimpse of " Law as it is," though still far from what it may, and ought to be, is cheering to an eye wearied with the long details of discreditable deficiencies and anoma- lies. Justice, it may be truly said, is no longer forced to look down, sorrowfully and indignantly, on her handmaiden Law, lying fettered and blindfolded at her feet, unable to per- form her behests. That handmaiden is now comparing, at least, her former with her present condition, upright, nim- ble and keen-sighted, and likely soon to be raised to a posi- tion of complete activity and efficiency. Before, however, proceeding to sketch lightly, but distinctly, an outline to be filled in hereafter, of our existing jurisprudence, a momen- tary act of homage is due to our great master Lord Coke,^ by introducing him, for the first time, to the student in an attitude entitling him, in spite of those blemishes which can- 1 "So great/' says a laborious American writer (Mr. Hoffman) on the" Study of the Law," " has been the change in the legal science, even of England, and altogether for the better, that it has been said, that were Lord Coke, with his immense learning, suddenly restored to Westminster Hall, he would find him- self compelled to become a close and methodical student of law, before he could venture to take his stand among his professional brethren." If this were true when it was written, in the year 1836, what would be the condition of the venerable sage, presenting himself at Westminster in 1863 ? 1 2 The Law As It Is. dour must recognise in his character and conduct, to that student's regard and reverence. The quaint and touching passage with which he closes his last Institute, while afford- ing incidentally an inkling of the state of matters in his day, shows his vast and voluntary labour in expounding the laws of which he had been so great an administrator, and his solicitude to adapt them cautiously to exigencies of altering times : — " Thus have we, by the great goodness of the Almighty, brought this painfull work, consisting of such and so many varieties and difficulties, concerning the jurisdiction of such and so many distinct courts (above the number of one hun- dred), to a conclusion And our desired end is, that all these high and honorable tribunals, and other subordi- nate courts and venerable seats of justice, may prosper and flourish in distribution of justice, which assuredly they shall do if they derive all their honour and strength from their proper roots. • " Whilst we were in hand with these foure parts of our INSTITUTES, we oftcu, having occasion to go into the city, and thence into the country, did, in some sort, envy the state of the honest ploughman, and other mechanics ; for the one, when he was at his work, would merrily sing, and the plough- man whistle some selfe-pleasing tune, and yet their work both proceeded, and succeeded : but he that takes upon him to write, doth captivate all the faculties and powers of his minde and body, and must be only intentive to that which he collecteth, without any expression of joy or cheerfulneese, whilst he is in his work " And you, honorable and reverend judges and justices, that do or shall sit in high tribunals, and courts and seats of justice, as aforesaid, feare not to do right to all, and to deliv- er your opinions justly, according to the laws ; for feare is nothing but a betraying of the succours that reason should afford. And if you shall sincerely execute justice, be assured of three things : First, though some may maligue you, yet God will give you his blessing. Secondly, that though there- by you may offend great men, and favourites, yet you shall have the favorable kinduesse of the Almighty, and be his CouETS or Common Law as now Existing. 3 favorites. And lastly, that in so doing, against all scandal- ons complaints and pragmatical devices against you, God will defend you as with a shield. Fw thou Lord wilt give a blessing unto the righteous, and with Thy favorable kindnesse ioilt thou defend them as with a shield.^ "And for that we have broken the ice, and out of our owne industry and observation framed this high and honor- able building of the jurisdiction of Courts, without the help or furtherance of any that hath written of this argument be- fore, I shall heartily desire the wise-hearted and expert build- ers (Justice being Architectonica Virtus) to amend both the method or uniformity, and The Structure itselfe, wherein they shall finde either want of windowes, or sufficient lights, or other deficiency in the architecture whatsoever. And we will conclude with the aphorisme of that great lawyer ^ and sage of the law, (which we have heard him often say), Bless- ed be the Amending hand." Following, haud passibus cequis, the bold censor of our legal institutions in 1828, let us approach, first, the three Superior Courts of Common Law.^ We behold them thrown open, equally to practitioners and the public, in harr monious action as courts of co-ordinate jurisdiction ; all trace of injurious monoply vanished ; and their business equalised, subject only tp the free preference, by the public, of one court rather than another. Their practice has been simpli- fied and made unitbrm ; there being but one form of com- mencing proceedings, that by writ of Summons, which is as brief as is consistent with plain and sufficient information, as to the nature of the demand sought to be enforced, and the consequences of disregarding the document affording such information. Each court has now five judges, paid by fixed salaries ; and their services are placed as amply at the command of the public, as can b'e desired, in both term and vacation, in Banc and at J!fisi Prius, in court and chambers, 1 Ps. V. 12. 2 Bdmund Plowden. 3 Throughout the ensuing popular summary, or epitome, of recent changes in th? law, a reference to the various Acts affecting them has, with one or two exceptions, been deemed unnecessary. It wiU be found otherwise, however, in those portions of the work of an institutional character, appropriated to the more detailed examination of the results of such changes. 4 The Law As It Is. in town and country. There is now, perhaps, no class of harder worked public functionaries in the kingdom than these, as may be gathered from the picture, it may almost be called a moving one, drawn by one of their number,^ be- fore the commissioners recently appointed for the purpose of inquiring into the state of common law judicial business. The judges are ai-med with the power of issuing orders, and framing rules of practice, to meet such necessities as from time to time develope themselves in the conduct of business ; and can interfere promptly, and efficiently, at the instance of the parties, and any one interested in proceed- ings pending before them, at any stage of those proceedings, to further the ends of substantial justice. The Welsh judi- cature has been incorporated with that of England since 1830, when the separate jurisdiction of the county palatine and the principality of "Wales, was put an end to.^ The four Terms are fixed ; and the arrangement depend- ent on that salutaiy alteration, have proved so satisfactory, that the commissioners for inquiring' into that and other matters, do not recommend any changes. Process, plead- ing, and the various proceedings in an action, go on now irrespectively of term and vacation — with the exception of the Long Vacation, now fixed between the 10th of August and the 24th of October ; the commissioners recommending the abridgment of that lengthened interval, by substituting for the 24th, the 1st of October.* Sittings at Nisi Prius con- tinue to be held in Middlesex and. London, both durins: and after term ; while those in Blanc are continued in vacation, as may be deemed requisite. The question as to whether the circuits shall remain as at present, or be re-arranged, is under the consideration of the legislature ; but the commissioners, while difiering on that subject, are unanimous in recommend- 1 Mr. Baron Bramwell's Evidence, " Report of the common Law (Judicial Business) Commissioners — 1857." pp. 1 — 6. 2 There are at present two Welsh Circuits, for Sorth and South Wales re- spectively, each combined with Chester; but this arrangement appears iuoon- venient, and may easily he altered ia conformity with the suggestions of the aboFe-mentioned Commissioners. 3 Report, (fee. p. xix. Courts of Admiralty and Privt Counoii/. 5 ing an adherence to the system of spring and summer cir- cuits, with a special commission in the winter.^ The Court of Admiralty has been entirely re-constructed ; its criminal jurisdiction withdrawn ; its civil juiisdiction ex- tended ; its procedure improved, and assimilated in all essen- tial particulars to that of the common law courts ; and it is likely soon to be opened to all practitioners in the law. The appointment of the judge, who is paid % a Hxed salary, is vested in the Crown ; and on the next vacancy of the office, it will be conjoined with that of the judge of the newly-con- stituted court of Probate, and of the judge ordinary of the Court of Divorce and Matrimonial causes. The Court of Delegates has been abolished, and its jurisdiction, as a court of appeal in matters testamentary and matrimonial, after having been, since 1840, vested in the judicial com- mittee of the Privy Council, has been transferred to the House of Lords. The judicial functions of the Privy Coun- cil are exercised by the committee above referred to ; a per- manent tribunal consisting of members of the greatest dis- tinction for learning, experience, and ability, in every de- partment of our jurisprudence ; dealing, subject to no appeal, and giving universal satisfaction, with every matter which the Queen may think fit to refer to it, for the purpose of hear- ing and considering it, and advising Her Majesty thereon.^ The position and duties of Justices of the Peace, have been placed ou a more satisfactory footing, as regards both themselves and the public. While their summary jurisdic- tion has been immensely augmented, their exercise of it may be promptly and cheaply challenged by those afl'ected by it, on the ground that it is erroneous in point of law. They may bring it, within a few days' time, under the considera- tion of any of the Superior Courts of law, or a single judge of any of them sitting in chambers, in either vacation, or term time. And the justice is bound to state, when required, a case disclosing the facts and grounds on which he has proceeded, unless he deem the application merely frivolous. Hei-e again, however, he cannot act capriciously; for he 1 n. p. xTi. 2 Stat. 3 & 4 WUl. IT. o. 41, s. 4. 6 , The Law As It Is, must give a certificate of his refusal on the ground that he thinks the application merely frivolous ; and, if the court or a judge differ from him in opinion on that point, he may- be ordered to state the case, and perhaps at his own costs.^ Justices of the peace are, on the other hand, effectually shielded, by recent ^cts, from harassing objections to the mere technical propriety of their procedure, and from frivol- ous and malicious Jitigation. The load of oppression from which they have fhus been relieved, cannot be appreciated but by those jrfbq^Aainted with a former state of things.. The number, also,*bf paid, or stipendiary justices, has been greatly increased. Such being the amendments effected in the construction of our various tribunals, let us approach the improvements brought about in the law administered in those remodelled tribunals. That of REAL PEOPEBTT, It must suffice here to say gen- erally, has been revised, and greatly improved, by persons consummately qualified to deal with that vast and intricate department of our jurisprudence ; and vigorous efforts have been, and continue to be made, to remove those hindrances to its amendment which have so long harassed the legisla- ture and oppressed the public. The Legislature has, from time to time, rectified many of the oppressive anomalies of copyhold tenure : the most recent of these efforts^ making material amendments in the Act of 1852, which had for its object to render the enfranchisement of copyholds com- pulsory at the instance of either loi'd or tenant, — and effect- ing other important amendments in this direction. It must be added, that neither freehold nor copyhold property any longer enjoys its ancient immunities, but both have been subjected to the payment of their owner's debts. Unnecessary litigation has been checked by many stringent regulations, having for their object to reduce the expense of legal proceedings, and abolish those of an ob- 1 Stat. 20 & 21 Yiot. o. 43, s. 5. For this admirable Act the public is in- debted to Horatio ■ffaddington, Esq., the present permanent Under-Secretary of State for the Home Department. 2 Stat. 21 & 22 Tiot. o. 94. Altering Eelations of Law and Equit^. 7 solete, dilatory, technical, and fictitious character; When a strong presumption of right appears in favour of a plain- tiff, as in the case of negociable instruments, the burthen of disputing the claim is thrown on the defendant. The plaintiff is, in those cases, entitled at once to judgment ; the defendant being not allowed to resist the action unless he can, upon oath, satisfy a judge that he has real and sub- stantial grounds of defence.^ With a view to preserve the proof of (jne class of events, the knowledge of which de- pends on the memory of living persons, and could not be ■ preserved authentically by a written document, — namely the time, place, and circumstances .of a person's birth,, so as to establish legitimacy, and the right to be deemed a natural born subject, — the legislature has recently passed an Act of great importance, the first of the kind introduced into the law of England, and borrowed from that of Scotland. With proper safe-guards, it entitles a person to apply to the Divorce Court for a declaratory Decree, to operate as anticipatory proof, against the time when such proof may have become requisite.'^ Multiplicity of suits has been greatly diminished by enabling courts of law and equity to wield many, if not most, of each others' weapons, for the purpose of enabling a suitor to obtain complete justice, in that one court which he may prefer, instead "of driving him from it, to another — from a court of law, to one of equity, and again from the latter, to the former — whenever the facts of the case appear to assume the tinge of law, or equity. An Act passed in the session 1857-8,^ arming the Courts of Chancery, as will be presently seen, with additional powers for doing com- plete justice between their suitors, by enabling those courts, among other things, to ascertain facts, with or without the aid of juries, and to award damages in a very extensive class of cases,* was. to have been,' and will probably soon be, ac- 1 The Act effecting this important improvement (Stat. 18 & 19 Vic. c. 67), was brought in by Sir Henry Keating. 2Stat. 21&32Tiot. c. 93. 3 Stat. 21 & 22 Tict. e. 27. i Id. s. 2. 5 A BiD, entitled, " A Bill to amend the Common Law Procedure Act 8 The Law As It Is. companied by an Act of a complementary nature, extend- ing to courts of law those powers of directing specific per- formance, issuing injunctions, and otherwise, at present exercised by the courts of equity only. It must, however, be observed, that this approximation towards what has been called the " fusion of law and equity," is at present of only a tentative or experimental character, having to overcome considerable practical difficulties. " Legislative attempts to invest all our great' courts with the like jurisdiction over contracts, "1 says that great master of the subject. Lord St. Leonards, " have in a great measure necessarily failed, and never can succeed, till the requisite machinery is provided in the Common Law Courts, to enable them to perform the duties which now devolve on the Courts of Chancery." How far such machinery has been, or can be, brought into action, remains to be seen. — A rational and simple pro- cedure has been substituted for the cumbrous fictions of Fines and Reoovekies, which have been wholly abolished ; and a title to land may be tried without any longer pray- ing in aid the services of those quaint old antagonists, John Doe and Eichard Eoe. The law of akbiteation has been carefully revised, and made the vehicle of obtaining speedy and complete justice ; judges, moreover, being empowered to compel a reference to arbitration, in such matters as are obviously unfitted, however much the inflamed hostility of the parties may desire it, for protracted investigation by a jury- The number of cases in which compromises may be effected, by allowing money to be paid into court, has been considerably, and might perhaps be advantageously further, extended. While proceedings in the Superior Courts have thus been simplified and cheapened, the County Courts have been placed on an entirely new footing ; their number 1854, with reference to the exercise of equitable jurisdiction," after having undergone discussion, during the session of 1857-8, and been amended in Com- mittee, shared the fate of other useful BUls, and was postponed to the ensuing Session. 1 Handy-book on Property Law, p. 4. This is an incomparable little work, of which Lord John Eu'ssell, on an occasion which will be presently referred to, truly said, that it was " a boon to the whole community." County Couets — Commencing Peoceedings. 9 increased ; their judges and officers made more efficient ; their proceedings simplified and accelerated, and their juris- diction immensely extended. These tribunals, now sixty in number, substituted for no fewer than one hundred ineffi- cient and mischievous Courts of Request, — independently of many small Courts of Eecord, the proceedings of which have been in many respects improved — dispose daily of a vast amount of business which used formerly to find its way into the Superior Courts. An instance of the extent to which the Legislature is disposed to go in this direction, is afforded by a recent Act,^ which enables the proprietor of copyright in designs to sue, in County Courts, for damages for piracy of those designs. A late Parliamentary Return^ affords striking evidence of the increasing activity, efficiency, and popularity of these tribunals. In the year ending on the 31st of Dec. 1857, they had entertained 744,652 com- plaints ; being an increase over those in the preceding year of 163,599 ; the amount for which they were entered (1,937,745?.) exceeding that of the preceding year by 404,079Z. It is moreover highly creditable to the judges of these courts, that the number of appeals in the year 1857, from the decisions of them all, in cases in which an appeal was allowed, was only twenty ; and of these, very few were successful. There can be little doubt that the sphere of the operations of these local tribunals will be constantly ex- tended, and their machinery improved,^ so long as they continue to exhibit proofs that a cheap summary jurisdic- tion is at the same time easily accessible, prompt, and effi- cient.* The mode of commencing peoceedings in the Superior Courts stands conspicuous among the modern practical im- 1 21 & 22 Yiot. c. 70, i 8. 2 No. 445. 19th July, 1858. 3 See, for instance, stat. 21 & 22 Tict. o. 95, mvestiiig the Lord Chancellor with ample powers to correct, from time to time, inequalities in the districts of these courts, by re-arranging such districts, and re-adjusting the positions of the judges, but without increasing the number of them. i These advantages have their alloy The facility of recovering, breeds the facility of contracting, small debts, and too often places an unfortunate, but not ill-intentioned customer, at the mercy of an exacting, even though not necessarily a cruelly disposed creditor. 10 The Law As It Is. provements of our judicial system, and now may be regarded as satisfying all the conditions prescribed.^ Arrest on mesne process has been abolished; leaving it still open, however, to the plaintiff, in case of a proved necessity for doing so, where the cause of action is 201. and upwards, to arrest and hold the defendant to bail, if a judge can be sat- isfied by affidavit that the defendant is about to quit England, unless forthwith arrested. The debtor has now the earliest and amplest information of everything necessary to be brought to his notice, for the pupose of enabling him to determine on the course he will pursue, — whether, and to what extent, he will resist, or submit to, the demand ; and if he wilfully absent himself, the plaintiff may proceed in his absence, giving him every reasonable notice of what is intended ; but the " distringas" to compel an appearance, or for proceedings to outlawi-y, is abolished. The next stage of the proceedings. Special Pleadings, has also undergone a comprehensive and thorough reform. The accumulation, at every stage, of elaborate and subtle nonsense, harassing technicalities, fictions, repetition, and prolixity — for the purpose, apparently, of actually hiding the real qUestioh from both parties, from judge and from jury — can take place no longer ; and the true merits on each side are now made to stand out distinctly, from the very be- ginning. Each party may, by leave of the court, or a judge, with his respective pleading, deliver to the other, written interrogatories to be answered in writing, and on -oath ; and if not answered sufficiently, an oral examination may be ob- tained, and the production of documents enforced, for the better elucida,tion of the truth. These great powers are accompanied by due safeguards against abuse, the exercise of them being subject to judicial discretion. Each party again, may procure for himself, for his witnesses, or for the jury, the inspection of any real or personal property, the in- spection of which is material to the proper determination of the question in dispute ; and may obtain an inspection of the documents on which his opponent means to rely. 1 Ante, p. 24. Questions of Law and Fact. 11 Almost every imaginable facility is afforded each party, at every stage, to cjear up real doubts as to his opponent's meaning and intention ; and when required, the authority of the conrt may be appealed to at once, and at a trifling cost. The record, once so bloated, is now generally speaking, shrunk into a span, to the infinite relief of all parties con- cerned, in respect of trouble, time, and expense. Thus the issue is arrived at easily, and quickly ; and then comes the Trial. In this department of the common law system, so much has been affected, with a happy boldness, as to leave little to be desired or suggested. Almost every contingency is provided against, and the judge armed with novel powers, for the purpose of dispensing true and substantial justice, without violating those great legal principles which the experi- ence of ages has developed, for the purpose of ensuring the administration of justice. He may, for instance, on terms which he may prescribe, adjourn the trial, at any stage of it, if he see that course to be expedient ; he is invested with the largest equitable discretion in amending variances be- tween proof and allegation ; the claims of justice having been reconciled with the interests of the revenue, by render- ing instruments imperfectly, or wholly, unstamped, admissi- ble in evidence, on paying a reasonable penalty. As many causes of action, whether of Tort or Contract, as exist between the same parties, and in the same rights, may now, except in the cases of replevin or ejectment,^ be com- bined in a single action, with corresponding rights on the part of the defendant ; power being reserved to try these different causes together, or separately, as the court oj- a judge may deem either course the more expedient. The opinion of the court may, by order of a judge, be taken on a question oi Law, as soon as the parties consent to do so ; which may be from the moment of issuing the writ which gives the court jurisdiction, down to its pronouncing judgment : and the decision, thus promptly obtained, may be 1 Stat. 15 & 16 Yiet. o. 76, s. 41. 12 The Law As It Is. reviewed by a court of error. A question of Fact, on the other hand, may, at any time between wuit and judgment, be referred directly to a jury, without any formal pleadings whatever : all that is requisite, in either of these cases, being a brief plain statement of the respective questions. And still further — if the parties consent, the question of fact may be disposed of, and damages assessed, by the judge himself, exercising the functions of both judge and jury, with all the incidents and consequences of a trial by jury, except that the judge's verdict cannot be impeached as being contrary to the weight of evidence.^ All objections on the ground of merely technical and formal error, in the pleadings, are swept away with that little engine of cruel oppression which gave effect to them, the Special Demurrer ; hxxt bona, fide substantial, objections are more readily assailable than ever. Not only is a General Demurrer allowed, but great expense and peril- ous incertitude are now averted, by permitting either party, if the court or judge think it just, to challenge in the first in- stance the substantial sufficiency of his opponent's case^ in both fact and law, by demurring and pleading to the same matter at the same time ; and the court or judge may direct which issue shall be first disposed of. Either party, more- over, is now allowed, if just grounds for doing so be sup- plied on affidavit, both deny the truth of his opponent's alle- gation, and admitting its truth, encountered it by a plea in avoidance, and by as many of these as may be requisite, at any stage of the pleading. Nor is even this all : hut to ena- ble an ' unlearned' reader to appreciate another late improve- ment, he is presented, before it is explained, with a signal illustration of its necessity and value, afforded by a reported case.^ The plaintiff, a gentleman, being possessed of different kinds of stock in the funds, his brother forged, then at the 1 The policy of tliis bold innovation, however, is gravely questional)le. On a recent occasion, (in a case of Hibbert v. Potter, tried at Guildhall, the 12th of December, 1857,) Mr. Justice Cresswell, a consummate master of Nisi Prius administration, long resisted the importunities of counsel that he would assume these functions; declaring that he had known of only three oases of the kind all of which had turned out failures. 2 Davis v. The Bank of JEngland, 2 Bingham, 393. Illustration of Modeen Impeovements. 13 peril of his life, powers of attorney, by means of which up- wards of 10,000?. were, in the month of October, 1819, sold out, on the supposed authority of the plaintiff, without the Bank of England having made any inquiry into the validity of the instruments in question. The eminent bankers in whose favour they had been made, were total strangers to the plaintiff. In the ensuing March, the fact of these for- geries was first brought to his notice, by his brother, then in custody on account of other forgeries. A few weeks after- wards, he succeeded in escaping from the kingdom, and the plaintiff concealed the fact of his brother's forgeries till the mouth of September ; when, having given powers of attor- ney to certain pei'sons to receive his dividends, on the stock which he knew had been in point of fact sold out, the bank refused to pay them. The plaintiff immediately sued them for breach of duty in that refusal; stating his case differ-, ently, in four counts of the declaration, applicable respec- tively to the different kinds of stock sold out ; two counts charging the defendants with having wrongfully permitted the stock to be transferred, and the other two with having refused, although he was possessed of that stock, and had not authorized it to be transferred, to pay him the dividends. Here were obviously questions to be decided, of great and general importance. The case was tried twice : first in 1821, and a second time in 1822, the verdicts being in favour of the bank. The facts were afterwards turned into a Special Case, which was argued twice over, at different times, by different sets of counsel, and on the broad merits — whether the pro- perty in stock can, in point of law, be transferred from the owner, by a forged instrument of transfer ? and whether, in the particular case, the plaintiff's conduct in concealing, and for so long a period, his brother's forgery, had disentitled him to recover? The Court, in an elaborate judgment, de- cided both questions in the negative, and consequently or- dered the verdict and judgment to be entered for the plain- tiff, in respect of the dividends in question. This was at the close of the year 1824. The Special Case was afterwards turned into a Special Verdict, which, in conformity with the course of procedure at that time, was afterwards removed, 14 The Law As It Is. by writ of error, into the Court of King's Bench. The sole error alleged was — that the pleader, in framing the decla- ration, had happened not to have expressly averred that the government had issued money to the bank to pay the dividends 1 In vain that great lawyer, Mr. Tindal, (after- wards Chief Justice of the Common Pleas) argued on the common sense view of the case, that the point had never been taken in the Court below, there having been no pretence for it, in point of fact ; and that the government ought to be presumed to have done its duty, and to have acted in the ordinary course of public business, in supplying the bank with money to pay dividends due to the public. The Court of King's Bench held ^ this mere technical objection to be fatal to the validity of the whole proceedings ; and on this ground, alone, reversed the judgment of the Court of Com- mon Pleas, thereby causing six years of expensive and har- assing litigation to be thrown away I It may not be worth while, now, to inquire whether the conduct of the plaintiff, or the course taken by the Bank of England, was creditable to either, nor whether the decision of the Court of the King's Bench was, even in jioint of law, sound, which may possibly be doubtful ; nor to sympathize with the student's indigna- tion on seeing Justice thus impaled on Form. The experi- enced lawyer's eye is unhappily faniiliar with such spectacles. His books swarm with cases like that now brought under the notice of the student. But, he may eagerly enquire, how would it be dealt with at the present day, under our improved administration of law ? Thus. If the alleged blot were one real and substaiitial, and discovered at the earliest stage, it would be the defendant's interest to demur at once, and not lie by, to take advantage of it at a later stage ; for then, even if successful, costs would be allowed, not to him, but to his opponent, in respect of the abortive issue in fact raised on the faulty pleading. In addition to this, the plain- tiff, on the objection being taken, would be allowed to obvi- ate it, by suggesting, and proving, that the government had, in truth, supplied the requisite funds to the bank ; and if 1 Bank of England v. Davis, 5 B. & C. J.83. Remodelled Law of Evidence, 15 such were the fact, his judgment would stand ; the record be amended ; and he be entitled to all costs occasioned by his being driven, at the eleventh hour, to rectify the error, only at the eleventh hour pointed out by his opponent. Is not this completely reconciling good sense, and justice ? It is time, however, to resume the exposition of these salu- tary changes. The Law of Evidence has been thoroughly remodelled. That fertile source of vexation, and obstruction to the inves- tigation of truth, the disqualification of a witness from giv- ing testimony, because he happened to have some interest, to the extent of a single farthing, in the matter in dispute, has disappeared, through the instrumentality of the late Lord Denman : even the very parties themselves being now, ex- cept in veiy few and special cases, admissible witnesses. His Act ^ was one of the greatest importance, as clearing the Law of Evidence of one of its greatest defects. He was urged by Lord Brougham and others, to extend it so far as to render competent the parties themselves, but declined to do so ; having then [a. d. 1842J, as he has himself stated in a published letter to Lord Brougham, a strong repugnance to so great a change in the law. In the year 1845, when Lord Brougham first brought in the Bill " enabling parties to be examined in the trial of civil actions," the repugnance of Lord Denman continued. The exprience. however, since the year 1846, of the working of the County Courts, in which parties were competent witnesses, overthrew his objec- tions, and he became a warm advocate of the Act of 1851, '^ inti'oduced by Lord Broughatfa, rendering parties compe- tent ; giving his reasons in print,'* when infirmity prevented his attending to do so in his place in Parliament. The result of these bold changes is, that all may give evi- dence in courts of justice, who have the use of their reason, and believe in a God who rewards and punishes mankind 1 Stat. 6 & 7 Tiot. o. 85. 2 Stat. 14 & 15 Tiot. c. 99. This great improvement in tlie law was sug- gested, as we hiave seen, {ante, pp. 26, 27,) by Lord Brougham, in 1828; and the Bill he introduced in 1845 may be seen in extenso, in "Lord Brougham's Acts and BiUs," by Sir J. Bardley WUmot, pp. 672-3. 3 In a letter to the editor of the Law Eeview. 16 The Law As It Is. according to their deserts. Not only may Quakers and others now affirm, instead of swearing, in Criminal, as well as in Civil cases ; but all persons declaring their belief, on religious grounds, of the unlawfulness of taking oaths, may, in like manner, in all cases give evidence on simple affirmation. If a witness unexpectedly prove " adverse," — that is as it would seem, in mind and disposition, — to the party who has called him, that party is now at liberty to show that the witness cannot be relied on, having made, for instance, at other times, statements opposed to those to which he has just de- posed, in Court. He may be cross-examined as to a previous wi'itten statement by him, without its being first shown to him : and if, on being questioned whether he has been con- victed of any felony or misdemeanor, he deny it, or refuse to answer, that conviction may now be proved, simply by pro; ducing a certificate of its substance, in order to prevent his obtaining false credit with the jury. To enable each party to make the most of his own case, before its being finally left to the jury, the plaintiff's coun- sel is now at liberty to sum up. and comment on, the evi- dence which his witnesses have given, unless the defendant then announce that he also intends to offer evidence. In that case the defendant may, in his turn, sum up the evi- dence given by his witnesses, the plaintiff being at liberty to have the last word, by replying generally on the whole case. — The truth of a libel is now an answer to a prose- cution for publishing it, provided it can be shown by the defendant that it was for the public good that that truth was IDublished. — The salutary machinery of the Statute of Frauds, requiring the security of writing, in the cases which it specifies, has been extended to many others of importance, and frequent occurrence ; and the beneficial provisions of the Statute of Limitations aided, by requiring that acknowl- edgments and promises relied on to bar it, shall be in writing. No action can now be brought on bonds, or other specialties, after twenty years. As for Eeal Actions, sixty of them have been swept away,^ leaving only two in exist- 1 Chancellor Kent of America, ■will.be found {post, Chapter on " Common Law/') deploring, -svith mournful eloquence, " the innovating spirit of the Law of Execution. 17 ence, and those rarely had recourse to, applicable respec- tively to the recovery of Dower, and the presentation to a Benefice. Advancing now to the means of gathering the fruit of legal proceedings — the law of Execution will be found greatly improved ; by accelerating the period of obtaining it, and arming the plaintiff with ample powers against an absconding defendant ; and by rendering a judgment operative against the debtor's person and property of every description, reaP and personal, in possession, reversion, or remainder, vested, or contingent. Even the debts due to him by third parties, can now be reached by the judgment creditor ; who is empowered for that purpose to obtain from his debtor a full disclosure, upon oath, of the debts so due to him. age," which has, in England, swept away, the following objects of pleasant contemplation to an English law student ! " Writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationabili 'parte, writ of right of advowson ; writ of right upon disclaimer, writ de rationabilibus divisis, writ of right of ward, writ de eonsuetudinibus et serviUis, writ of cessavit, writ of escheat, writ of quojwre, writ of secta ad molehdinum, writ de essendo quietum de theolonio, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formsdon in descender, in remainder, or in reverter ; writ of assize of novel disseisin, nuisance, darrein presentment, juris utrum, or mart d! ancestor ; writ of entry sur disseisin in the quibus, in the j»er, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation, dwmfuit non compus mentis, dum fvit infra mtatem, dum fuit in prisona, ad communeun legem; in casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divorUum, writ of entry sur abatement, writ of entry quare ejeeit infra terminum, or ad terminum qui proBteriit, or causa matrimonii prmlocuti, writ of aeil, iesaiel, tresaiel, cosin- age, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ of quod ei deforceat, writ of covenant real, writ of warrantia chartm, writ of euria clauAenda, or writjjer quoi servitia." 1 Lord Brougham informs us that it was to stop Sir Samuel KomiUy's menaced innovation of subjecting men's real property to the payment of all their debts, that the phrase " the wisdom of our ancestors" waS first used by that great Equity Judge, Sir WiUiam Grant, and by Mr. Canning. " Strang* force," says Lord Brougham, " of early prejudice — of prejudice suffered to warp the intellect while yet feeble and uninformed ; and which owed its origin to the very error that it embodied in its conclusions — that of making the errors of mankiud, in their ignorant and inexperienced state, the guide of their conduct at their mature age, and appealing to tbose errors as the wis- dom of past times when they were the unripe firat of imperfect inteUectnal culture." Statesmen of the Times of Geo. Ill; Sir WiUiam Grant. 2 18 The Law As It Is. In an action for the detention of a chattel, the defendant can now be compelled to deliver it in kind to the plaintiflf ; and if he do not, his lands and chattels may be distrained till he do ; or if the plaintiff choose, the sheriff may realize the value of the chattel out of the defendant's goods : he being no longer allowed the option of retaining the chattel, on paying an equivalent in damages. Great facilities have been afforded for subjecting the de- cision of either a single judge, or the whole court, to prompt revision by courts of appeal, as well before, as after judgment has been obtained : and the cumbrous and dilatory writ of error has been superseded by a simple, in- expensive substitute, effectually guarded against being re- sorted to for purposes of chicane, or delay. The " amending hand," has not feared to grasp the prickly question of costs, recognising in it one of equal importance and difficulty. The growth of them has been checked in proportion, of course, to the diminution of needless legal proceedings : the right to those costs has been adjusted be- tween the parties equitably ; and the careless, wanton, and oppressive infliction of them by either party on the other, restrained, by largely substituting the ready and efficient in- terposition of judicial discretion, for a rigid unaccommo- dating statutory _/?ai. Here ends our journey through the different stages of proceedings in the courts of law. The reader will bear in mind, however, that few of the many recent alterations in our law have been brought under his notice, beyond those distinctly traceable to the great efforts of Mr. Brougham in 1828. — If it be asked, what has been the effect of all these changes, upon the practice and administration of the law ? ;ui authoritative answer is at hand, in the Report already re- ferred to, of the royal commission, appointed on the 30th uf April, 1857, to inquire into "the present arrangements lor transacting the judicial business, civil and criminal, of the superior courts of common law in England and Wales, and also into the times and places at which the assizes are now holden, and as to the division of the country into cir- cuits ; and to report whether any changes could be made, AUTHOEITATIVE EXPOSITION. 19 by -which such business might be transacted with greater ; convenience, and at a less expense ; and also whether any reduction might be made in the present number of the judges of those courts, without detriment to the public service." The Commissioners,^ after examining with care, many experienced witnesses, issued an able and interesting Report on the 31st of July, 1857, the substance of which, as far as regards the matters here more immediately under consideration, is as follows. Starting with the year 1830, when the Welsh judicature was abolished, and three addi- tional judges were appointed ; with the unequal division of business in the three courts, and the consequent great arrear in the king's bench, as contrasted with the existing more equal distribution of business, and absence of arrears, — ^the Commissioners say, that the business which now occupies the judges is so altered in its character, that even if the amount of litigation were numerically the same now as then, fewer than fifteen judges would not suffice to dispose of it. (1.) The summary procedure on bills of exchange and promissory notes, while lessening the number of actions commenced, has scarcely affected those really tried ; this, as well as the number of days occupied on the trials, prov- ing that the really contested actions have increased. (2.) The Act authorizing the examination of the Parties to a suit, further developed by the still more recently introduced alteration in the mode of addressing the jury — allowing the counsel on each side to sum up his evidence — has, beyond all doubt, increased the time occupied in trials, but not with- out proportionate advantage to the public. (3.) While the county courts have also cleared the cause lists of many trifling actions, a cause paper of the present day, numeri- cally the same as those of former times, in reality represents a mass of contentious litigation of far more intricacy and importance : so that, to keep down arrears, it is frequently 1 Among them were Lord Campbell, then L. 0. J. of the queen's henoh, lord "Wensleydale, Sir Cresswell Cresswell, then a justice of the court of com- mon pleas, but now judge of the courts of probate, and divorce and matri- monial causes, and Mr. Baron Martin. The only judges who appeared as witnesses, were Sir John Coleridge, then a justice of the oouii; of queen's bench, and Mr. Baron Bramwell. Their evidence is valuable and interesting. 20 The Law As It Is. necessary that two judges in each court should sit simul- taneously at Nisi Prius. Undefended actions also, formerly so very numerous, have almost vanished. (4.) The common law procedure acts of 1852, 1854, combined with other re- cent acts, have served, at once to transfer to a judge at chambers the great bulk of those matters of practice form- erly brought before the full court, and to originate many new applications of a similar nature. While, on the one hand, special demurrers, and proceedings of a purely formal character, have been abolished, recent acts of parliament relating to interpleading, joint-stock companies, railways, and particularly the two common law procedure acts, have introduced entirely new matters of business, far outweigh- ing in difficulty and importance those which have ceased to exist. And, finally, it is stated, that diminished litigation cannot be referred to the falling off, or even abolition, of obsolete and useless forms of proceeding, and the substitu- tion of a more rational system. During our progress thus far, through the administration of justice in courts of common law, glimpses have been from time to time more or less distinctly obtained, of the whole field of English jurisprudence. It will have been borne in mind, however, that certain portions of it were, at the com- mencement of the journey, professedly excluded from con- sideration as subjects of direct treatment, namely, commer- cial law, the law of real property, equity, and criminal law. Incidentally, these were frequently noticed, aud cannot be here altogether passed over, slight only and rapid as may be the survey. Commercial law,^ especially the portion of it relating to partnership and bankruptcy, spoken of by Mr. Brougham as being then in a highly unsatisfactory state, admits of much further improvement, in spite of re- peated interference by the legislature. It has had, however, since to cope with the rapid development of commercial en- terprise, by means of those huge partnerships called joint- stock COMPANIES, which have proved so unwieldy as to be nearly unmanageable, so far as relates to the adjustment of 1 Vide post, chapter xxi, on Mercantile Law, pp. 1120-1141. PARTNERSHIP: — BANKRUPTCY. 21 rights and liabilities between themselves collectively, and their individual members, and between themselves and the public. The other source of embarrassment to the legisla- ture, as well from difficulty inherent in the subject, as from the different views concerning it entertained by different schools of political economists, lawyers, and legislators, had long been the law of bankruptcy. Whether, for instance, the distinction between bankruptcy and insolvency, with its various alleged anomalies, evils, and inconveniences, should be maintained any longer ; and whether the mercantile and judicial elements in bankruptcy should be kept distinct, were, with other cognate questions, incessantly brought un- der the grave consideration a{ the legislature. From the year 1858, down to the year 1861, both inclu- sive, elaborate bills were introduced into each house of par- liament, by laymen and lawyers, by government and private members ; serving only, till the latter year, to illustrate the difficulty of dealing with the subject. After protracted and animated discussion and difference of opinion between the two houses, however, was passed in the year 1861, the act now in force, and explained in a subsequent chapter, which it is to be hoped will prove one reflecting credit upon the legislature, and conferring benefits long, and loudly, demanded by an enlightened commercial community. The Usury and Navigation Laws have been boldly abro- gated altogether. Natural operations of commerce are no longer regarded as the offences of Forestalling, Engrossing, and Eegrating ; while many laws conferring unjust local and exclusive privileges, have disappeared from the Statute Book. Our Warehousing system has been remodelled ; the rights and liabilities, criminal as well as civil, of Factors, and the laws relating to Bills of Lading and negotiable in- struments, have been greatly improved ; while various bene- ficial changes, in the direction indicated by Mr. Brougham in 1828, were recently effected by a brief but important statute,^ entitled, "The Mercantile Law Amendment Act, 1856," having, for its recited object, to remedy the incon- 1 19 & 30 Tiot. 0. 97. 22 The Law As It Is. venience arising to persons engaged in trade, through the difference between such laws and those of Scotland, in mat- ters of ordinary occurrence. It may be observed, briefly, before quitting this topic, that the general tendency of recent legislation has been, to set free mercantile enterprise and discretibn. The Law of Eeal Peopertt, though still involved in a maze of technical difficulties,^ has undergone, as already in- timated, considerable and salutary modifications, with a view to the attainment of uniformity and simplicity, as well as facility and cheapness of transfer. The extent to which this was required, may be estimated by the fact, that a single statute, — that, for instance, dispensing with the necessity, by precluding the possibility, of issigning satisfied terms to attend the inheritance— is said to have saved no less a sum than 300,000?. a year^ to the owners of landed property ; while a similar beneficial effect has followed a dispensation with the superfluous lease for a year, as an instrument of conveyance. Our system of Real Property Law, as identi- fied with, or rather represented by, Convetancing, of which a full account will be found hereafter, may at present be re- garded as in a state of transition. If the bold system origin- ally established in Ireland in 1848 by the Irish Encumbered Estates Act of that year,^ and extended in 1858 to Unen- cumbered Estates there,* should, as seems almost inevitable, be speedily introduced into England, empowering a duly constituted Court to sell lands, by allowing the proprietor to submit his title to investigation, and receive from that Court an indefeasible parliameTdary title, it will go far to- wards subverting the existing system of Conveyancing, and 1 See the able Inaugural Address of Lord John Eussell, delivered on the 11th of October, 1858, before the National Association for the Promotion of Social Science. 2 Speech of the Solicitor- General in the House of Commons, 4th June, 1858. 3 During the ten years the Act has been in operation, the net proceeds of sales under it reached to the enormous sum of 21,326,000^. — The system was in the year 1854 introduced into the West Indies by stat. 17 & 18 Vict. c. 117, amended in 1858 by stat. 21 & 22 Yict. c. 96. i Stat. 21 & 22 Tiot. c. 72, entitled " An Act to facilitate the Sale and Transfer of Land in Ireland." It was passed on the 2nd of August, and came into effect on the 1st of November, 1858. Impending Change in System of Conveyancing. 23 seriously affect the position of both counsel, and attomies and solicitors, practising in that department. It will to a great extent supersede their functions. It may be, added, in passing, that while facilitating the transfer of real prop- erty will undoubtedly confer great benefit, on ;iot only its owners, but the community at large, it may entail, and per- haps not remotely, grave political and social consequences. As great changes have been effected in the administration of Equity, as in that of Common Law. The number of judges, and of courts, has been increased ; the business of those courts re-distributed ; pleading and practice have been remodelled, so as to shorten, simplify, and accelerate pro- ceedings ; while, with a view to the cheap and expeditious • dispatch of business, matters far beyond those of a routine character, are disposed of by the clerks of the Master of the Rolls, and three Yice-Chancellors, at Chambers, irrespectively of the sitting of the_ courts; a code of rules for their guid- ance having been recently ^ promulgated by the last men- tioned judges. . A Chancery Record, again, is no longer the enormous, unsightly -thing it was, but reduced to reasonable dimensions, divested of fiction and verbiage, and' speaking with a terseness and simplicity appreciable by a mere lay- man. The judges are armed with those powers of prompt and effective interposition, at any stage of the proceedings, which we have seen conferred on their brethren of the Com- mon Law Courts ; and, in particular, have nowj as has been already intimated, the advantage of informing their con- science, as to facts, by the aid of viva voce evidence. They may, also, exercise rights, in addition to, or substitution for, their own proper functions, by way of Decree for Injunction, or Specific Performance, as to ascertaining and awarding damages,^ which have been hitherto confined to the Com- mon Law Courts. Such damages may be assessed, or any necessary question of fact arising in a suit, be tried, either by or without a jury, before the court itself, which may or- der a new trial ; or the court may order such assessment, or trial by a jury, before a Common Law Court at Nisi Prius, I Oct. 30th, 1857. 2 Stat. 21 & 22 Vict. c. 27. 24 The Law As It Is. or a Sberiff : and the Lord Chancellor and other Equity judges are empowered to frame General Eules and Orders to carry into eifect these important enactments. The course of appeal has also been altered, but is yet susceptible of con- siderable improvement. While so much ground is now thus occupied in common, by Courts of Equity and the Superior Courts of Common Law, — the County Courts, which are an- nually extending their encroachments on the provisions of the latter, have been also intrusted with a considerable share in the administration of Equity. The Ceiminal Law has been equally ameliorated. An in- dictment is now, comparatively speaking, a brief instrument speaking in plain language, divested of technicality ; and de- fects in it may be remedied, and variances between it and the proof amended, on equitable terms, by the judge presiding at the trial. Over that trial he has now complete control : he is empowered to postpone it, or even discharge the jury, in a part-heard case, where he sees that course necessary to pre- vent a failure of justice. A miscarriage at the trial, more- over, may now be readily remedied by a Court of Appeal, amply armed with powers for the attainment of substantial justice, between the Crown and the prisoner. By holding a winter assize, and arming stipendiary magistrates and justices of the peace with greatly increased summary jurisdiction, many serious evils, necessarily arising out of the delayed ad- ministration of criminal justice, are obviated or mitigated. The establishment, finally, of Eeformatory institutions, is silently and surely, though it may be at present slowly, as- sailing the source of crime itself, by reforming the youthful, before he has been hardened into the irreclaimable, offender ; and thus fulfilling the wishes of our great master. Lord Coke, that "justice severely punishing," might be superseded by "justice truly preventing ;" — " the consideration of which," he truly said, " were worthy of the wisdom of a Parliament." '■ T|]>e establishment of new Courts of Probate and of Di- vorce and Matrimonial Causes, in the year 1857,^ after a 1 Epilogue to the Third Institute. 2 The Judge of the Court of Prohate, is also the Judge Ordinary of the Court for Divorce and Matrimonial Causes (stat. 20 & 21 Viet. o. 85, s. 9) ; and on the OuE Legislative Process Unsatisfactoey. 25 thirty years' war by the Legislature against the ancient Eccle- siastical Courts, has marked a great eppch in the annals of our juridical institutions. Having been deprived, in the year 1855,1 of their jurisdiction in suits for Defamation, the Eccle- siastical Courts found themselves, two years afterwards, strip- ped of the whole of their jurisdiction in matters Testamentary and Matrimonial, which are now administered by the newly- constructed courts in question, in the Queen's name, on a sys- tem in accordance with that prevailing in our other courts of justice, especially those of common law : ^ while the ancient monopoly of Advocates and Proctors has been abolished, on equitable terms, and the practice thrown open to the entire profession.^ The tribunals thus shorn of so much of their ancient jurisdiction, are henceforth restricted to one purely ecclesiastical. Let it finally be added, as a leading and excel- lent feature of this class of legislation, that the judges of all the courts thus thoroughly reformed, remodelled, and newly- constituted, are empowered to frame Greneral Rules and Or- ders,* from time to time, for the regulation of their proced- ure; thereby dispensing with incessant and inconvenient reference to the legislature, and keeping judges on the alert to remedy defects, as they develope themselves, and extend improvements already found to be in beneficial action. Consolatory, however, as is this retrospect of so much beneficial change in our judicial institutions, the future is disheartening to those familiar with the faltering resolution next vacancy of the office of Judge of the Court of Admiralty, it also will be united with that of the Judge of the Court of Probate. (Stat. 20 & 21 Tict. c. 77, s. 10.) Both these Acts were amended in the ensuing year (1858) by Stat. 21 & 22 Tict. cc. 95, 108. 1 Stat. 18 & 19 Tict. o. 41. * The Court for Divorce and Matrimonial Causes, however, must, except in proceedings for dissoMng marriage, and also subject to the provisions of the Act constituting the Court, '■'act, and give relief, on priMdjales and rules deemed by the Court to be as nearly as may be conformable to those on which the Ecclesiastical Courts have heretofore acted and given relief." Stat. 20 & 21 Tict. 0. 85, s. 22. s See an important restriction repealed, by stat. 21 & 32 Tict. c. 95, s. 2; a clause iutrdduoed by the author. ^ See in the case of the Court of Probate, stat. 20 & 21 Tict. o. 77, s. 30 ; and in that for Divorce and Matrimonal Causes, stat. 20 & 21 Tict. c. 85, s. 53. 26 The Law As It Is, of the legislature, while professing, and attempting, to deal with a giant evil, the presence and action of which are evi- denced by the truly discreditable condition of our Statute Book. Reiterated recognition of the necessity for vigorous and systematic action in this direction, has hitherto co-ex- isted with an utter impotence, calculated to expose Parlia- ment to the contempt of both our own, and foreign countries. Difficulties may be considerable, undoubtedly, but are as nothing before a Parliament bent on legislating wisely, and recording its legislation creditably : that is, methodically, accurately, and intelligibly. Passing over the re-construction of our parliamentary and municipal institutions, in the years 1832 and 1835, organic changes in themselves the parents of so many others, the student has now been afforded the opportunity of glancing at Law As It Is, by the light of Law. As. It Was : having had as yet, however, presented to him a mere bird's-eye view of the legal vineyard, with a view to guiding his selec- tion of some particular scene of action to be by and by care- fully examined for himself. To one capable of superior aspirations, surely this retrospect of the legislative action of a great and enlightened people, during thirty eventful years of their history, cannot but be instructive. He sees, in as determined action as ever, the spirit which dictated the immortal words, " To no one will we sell, to no one will we deny, to no one will we delay. Right, or Jus- tice." ''This is spoken," says Lord Coke,^ whose spirit- stirring" words cannot too frequently be repeated, or re- corded, " in the person of the King ; who, in judgment of law, in all his courts of justice is present, and repeating these words, Nulli vendemus, nulli negabimus, aut differemus, Rectum vel Justitiam: and therefore every subject of this realm, for injury done to him in bonis, in terris, vel persona, by any other subject, — be he ecclesiastical or temporal, free, or bond, man, or woman, old, or young — or be he outlawed, excommunicated, or any other without exception, — may take his remedy by the course of the law, and have justice 1 2 Inst., Magna Charta, cap. 29, pp. 55, 56. What Constitutes Law. 27 and right for the injury done to him, — ^freely, without sale ; fully, without any denial ; and speedily, without delay." Needs, then, must the student echo the comment of our philosophic jurist on the aforesaid famous words of the Great Charter, "No man can carry further the principle, that Justice is the grand debt of every government to the people, which cannot be paid without rendering Law cheap, prompt, and equal."^ What but this, is the scope of all the legislative action, — of every one of the details, — which haye hitherto fallen under the notice of the student ? He must, however, here ask himself a great question : What is the Law, thus cheapened, quickened and equalised ? Practi- cally, it is, that which defines every man's Eights, and secures his enjoyment of them ; redressing an infraction of them as a Private, or punishing it as a Public, Wrong. The true manner of doing this. Procedure, constitutes a great portion of our Corpus Juris, prescribed and regulated as is that procedure, by the principles of justice, and freedom^ Audi alteram partem — "No man shall be condemned un- heard,"-^ is, for instance, a cardinal maxim of justice, under- lying a great portion of the Practice, which is the Law,* of our Courts. Again, that a transaction between two par- ties ought not to prejudice a third^ — is as obvious, and a cognate, principle of justice, standing in the same relation to the Evidence, on which, alone, a court of justice can act. So also with Pleading. " The law itself," says Lord Coke, ^' speaketh, by good pleading — which is the living voice of Law itself."^ Its utterance should, therefore, be true, precise, and pertinent, in order to reach the ear, and inform the understanding, of Justice. The stating of the case on both sides, the proof of it, and the settled course of procedure to obtain the final decision, — in other words, Pleading, Evidence, and Practice, — constitute a large sec- 1 Sir James Maokintosh, History of England, Chap. III. 2 This principle is well illustrated by the case of Williams v. Lord Bagot, 3 Bam. & Cress. 786. 3 Cursus curice est Lex curies, per Croke, Justice. John Bwrrows and others against the Sigh Commission Court, 3 Bulstrode, 53. i Bes inter alios acta, alteri nocere non debet. 5 Co. Litt. llf) b. Jpsius legis viva vox, ib. 28 The Law As It Is. tion of law, often necessarily determining the very sub- stance of that law, or, at all events, its application to a given and duly established state of facts. Eights and Wrongs, however, both public and private, in all their endless modifications, exist independently of any question as to the fad of their existence, or the mode of en- forcing claims in respect of them ; being as varied as the relations between individuals, or between them, or any num- of them, and the public, and as the circumstances in which they may be placed. Here we are introduced to General Rules, really existing, though often hidden beneath, and to an uaskilled eye diffused among, limitations, exceptions, and qualifications, apparently of the most arbitrary and shadowy character, yet to the lieen and practiced jurist, as real as the rules. All of these, however — rules, exceptions, limitations, and qualifications — depend on reasons and principles essen- tially unchangeable, amidst all the fluctuations of legislative or judicial policy and action. That " no man shall be the judge in his own cause ;"^ that is, in any matter in which he is interested, is, for example, a gredt fundamental princi- j)le in the administration of justice, commending itself to every one's conscience as well as understanding, and in its very nature unchangeable. Again: " So enjoy your own property, as not to injure that of another,"^ is a principle founded equally on justice and policy ; the very key-stoue of the arch of social order, and " generally serving as a clue to the labyrinth,"^ in the case of co-existing and clashing rights. What, however, in the former of these two cases, constitutes a " cause " a man's " own," investing him with a cognisable " interest" in the matter litigated ? and, in the lat- ter case, such an " enjoyment" of a man's own propeily, as does, or does not, "injure" another? No thoughtful stu- dent, especially if advantaged by logical training, can fail to 1 Nemo debet esse judex in propria sua causa, Earl of Derby's case, 12 Coke, 114. 2 Sic utere tuo, ut alienum non Iwdas. Palmer, 536 ; Aldred's case, 9 Co. 59. S Per Curiam, Tlie Emg v. Ward, 4 Adol. & Ell. 406. This case deserves study, as exhibiting an instructive application of the maxim mentioned in the text. DrFFICULTIBS AND FACILITIES. 29 see these questions bristling with difficulties, which afford scope for, or rather demand the exercise of, practiced acute- ness and judgment, in the application of fixed principles to fluctuating and perplexing combinations of circumstances. How intolerable, then, that these inherent difficulties should be aggravated by gratuitous obscurity, prolixity, and techni- cality I Is it a greater curse to the public, than plague to the student ? Listen to another passage in the great oration of 18281:— " It is the foolishest of vulgar errors to suppose, that by how much the more you vex and harass the professors of the law, by so much the more you benefit the country. The fact is quite the reverse; for by these means you make infe- rior men, both in feelings and in accomplishments, alone follow that profession out of which the judges of the land must be appointed. I should rather say, that by how much the more you surround this renowned profession, with diffi- culties and impediments calculated only to make it eligible for persons of mere ordinary education, and mere habits of drudgery, who otherwise would find their way to employ- ment in tradesmen's shops, or at best in merchants' counting houses; by so much the more you close it upon men of tal- ent and respectability, and prevent it from being the resort of genius, and of liberal accomplishments." Proportioned, therefore, to the extent to which these vex- ing and harassing difficulties and impediments have been cleared away, so as to aflbrd freer, and distinctly visible, action for the great reasons and principles On which law is founded, are the facilities afforded for the study and admin- istration of that law. These inestimable benefits are shared equally by students, practitioners, judges, and suitors. Thus are attained the ends which the illustrious Lord Bacon re- minds^ Queen Elizabeth, that she had "vouchsafed" to inform him she had many years proposed to herself: — "to enter into a general amendment of the states of your lawes, and to reduce them to more brevity and certainty; that the 1 Hans, xviii. N. S. ool. 149. 2 See the "Epistle Dedicatory to her Sacred Majesty," prefixed to his Ele- ments of the Common Law of England. 30 The Law As It Is. great hollownesse and unsafety in assurances of lands and goods, may be strengthened; the swarving penalties that lye upon many subjects, removed; the execution of many profit- able laws, revived; the judge, better directed in his sen- tence; the counseller, better warranted in his counsaile; the student, eased in his reading; the contentious suitor, that seeketh but vexation, disarmed, and the honest suitor, that seeketh but to obtainc his right, relieved; which purpose and intention, as it did strike mee with great admiration when I heard it, so it might be acknowledged to be one of the most chosen workes, and of the highest merit and benefi- cence towards the subject, that ever entred into the mind of any king; greater" adds the courtly writer, "than wee can imagine, because the imperfectidns and dangers of the la-«ves are covered under the clemency and excellent temper of your Majesty's government. And though there be rare presidents of it in government, as it cometh to passe in things so excellent, there being no president full in view but of Justinian, yet I must say as Ciceko said to Cesae, nihil vulgatum te dignum videri potest; and as it is no doubt a pre- cious seed sowne in your Majesty's heart by the hand of God's divine majesty, so I hope in the maturity of your Majesty's owne time, it will come up and beare fruit," Has then, the student by this time acquired an inkling of Law As It Is, by the light of Law As It Was, only thirty years ago ? If he have, has he failed to observe that every change, whatever its benefits to others, has been in his most especial favour ? That there is a manifest and increasing tendency to uniformity and simplicity in the administration of justice, in the three kingdoms; to extricate meiits, from meshes of technicality; to prevent substance being strangled by form; and consequently that he enjoys facilities for ac- quiring legal knowledge, denied to even his more recent predecessors? Is there not, however, another view to be taken of the matter : that his responsibilities are augmented ? That superficiality, slovenliness, and unskilfulness, will hence- forth be more easily detected, to his own perilous disbomfit- ure ? That thorough and comprehensive as has been the reformation of our laws, so must be his study of those great Effect of Change on the Study of Law. 31 principles and reasons, and the rules embodying them, which pervade every just and enlightened system of jurisprudence ? Let him be well assured, that accordingly as he recognizes, or repudiates, these considerations, he will enter upon and prosecute the study and practice of the law, in a generous and noble, or a jjettifogging and beggarly spirit; and the censor of our judicial institutions will have to record, eithfer that the race of our great lawyers continues, or that it is,' alas !. dying out. 32 Training fob the Bab. CHAPTER n. Teaining fob the Bab. Peesonal fitness, as far, at least, as concerns the practi- tioner, is more rigorously exacted by the bar, than by any other of the learned professions, not excepting even that of physic, which approaches it, in this respect, nearest. There is a point, however, of difference between the two. In the latter, " maki praxis" may have existed to a serious, and even fatal extent, without having been detected, or even sus- pected, by the victim of it, or those interested in his safety. The mischief is done ; but the evidence of it moulders in the dust I except where timely misgivings may have averted the consequences of inexperience, ignorance, or unskilfulness. Imagine, however, the practitioner of physic, with a rival always sitting on the other side of the patient's bed, then and there starting objections to every step of a treatment of which that rival maj^ disapprove ! And not only this, but with those also present, who must decide between the two, and others who are deeply interested in the correctness of that decision ! Now, at the bar, this watchful rival must al- ways be reckoned on ; for it is a ceaseless scene of gladia- torship, involving personal sisill and strength. Inferiority, or gross disparity in these respects, cannot long maintain the discreditable footing of a pretended equality — of fighting, as it were, by deputy — however selfishly willing to avail itself of the energies of merit, itself neglected, or the support of a resolute and unscrupulous nepotism. Let an Attorney once have to suffer the discredit of failure, through the mis- cari-iage of his nearest kinsman — his brother, his nephew, even his own son — to smart, in costs, from negligence in em- ploying incompetence — and his ardour is suddenly cooled ; an instinct of self-preservation sending him, for the future, to safer advisers. Deficiency of Systematic Guidance. 33 If it be true, that the Bar is a profession exacting, more rigorously than any other learned profession, the exhibition, by its members, of personal fitness ; equal must be the sur- prise and concern of the reader not previously aware of the fact, to learn that this profession has been, and is perhaps still, to a serious extent, destitute of any appropriate, ade- quate, and uniform system of preparatory professional educa- tion, or any means of testing the extent to which preliminary training has been successful. Thus, also, it seems to have been two centuries ago, as_ attested by Eoger North, an Attor- ney-General of his day.i "Of all professions," he declared,* " in the world, that pretend to book learning, none is so destitute of institution as that of the Common Law." . . . . . " Each student," he complains, " is left to himself, to enter at which end he fancies, or as accident, inquiry, or conversation prompts. And such as are willing and inquisi- tive, may pick up some hints of direction ; but generally, the first step is a blunder ; and what follows, loss of time, till, even out of that, a sort of righter understanding is gathered, whereby a gentleman finds how to make a better use of his time : and of those who are so civil as to assist a novice with their advice what method to take, few agree in the same ; some say one way, some another, and amongst them, rarely any one that is tolerably just. Nor is it so easy a matter to do it, that every one should pretend to aJdvise ; for most enter the profession by chance, and each, all his life after, is partial to his own way, though none of the best ; and it is a matter of great judgment, which requires a true skill in books and men's capacities ; so that I scarce think it is hard- er to resolve very difficult cases in law, than it is to direct a young gentleman what course he should take, to enable him- self so as to do."-* It is painful to have to acknowledge, that the foregoing passage but too nearly represents the state of things existing in the middle of the advanced, advancing, and ambitious nineteenth century. In spite of honest efforts, 1 Ho was younger brother of Lord Keeper Guildhall, and Attorney-General in the reign of James II. 2 Discourse on the Study of the Law. 3 Discourse, pp. 2, 3. 3 34 Training fob the Bar. by the authorities, to redress so great an evil, students are still driven to rely chiefly, if not altogether, on their own desultory and often ill-directed efi'orts, and the conflicting suggestions of persons ill qualified to act as advisers in a matter of such serious moment. Thus it happens, that every passer by directs the harassed and perplexed pilgrim to ap- proach the shrine of his devotion by a diflierent route — scarce- ly any two, of even qualified advisers, being found to concur ' in a course of elementary professional study. Is it well that this should continue to be so? If it be answered, " Look at the thousands who have nevertheless succeeded, and splen- didly, as their own teachers," may it not be replied, "True : but at what a needless and excessive cost of time and labour! What health ! what prospects I what lives, wasting away under that hope deferred, which maketh theheart skTcl^ have been devoted and sacrificed uselessly I Look, again, at the heavy-hearted throng of those -vyho have failed, but who, properly guided, would have succeeded 1 How many highly- gifted men have thus contracted a disgust and hatred of study for the Bar, for want of a timely intimation of its real charac- ter, the unsuitableness, for them, of the sort of life it entails; and who, after a brief, or perhaps protracted struggle, have abandoned it in despair I How many as highly-gifted men have, on the other hand, been deterred from entering into this brilliant and exciting scene of action, who would have proved the very foremost figures in it, had they but been ap- praised of its true character, and so enabled to fling to the winds their erroneous apprehensions and prejudices 1" Brilliant, however, and exciting as may be the scene of action afforded by this great and powerful profession, its ap- proaches are often difficult, and its distant aspect is forbid- ding, to one of the humbler classes of society. Of obscure family, perhaps, and straitened means, he sees there no wel- coming faces of school and college friends. To him, an Inn of Court is, indeed, a. cheerless and stern solitude 1 And will any one presume to say, haughtily to such an one, Laeoiate ogni speranzavoi. oh' intrate? i Proverbs siii. 12 Necessity of a Peeliminaey Examination. 35 Forbid it, everything that is just, that is genuine, that is ennobling in the noble emulations and rivalries of mankind. Nay, on the contrary, says every right-minded member of that Bar, God bless thee, poor student ! Be of good cheer! You shall be received on the footing of a cordial equality, — so, however, as you but bear yourself bravely through the ordeal of difficulty and privation which is before you, resolv- ing to perish rather than gain success by means which shall hereafter call a blush into your cheek, to reflect upon, and cloud .the faces of your honourable rivals, with displeasure and contempt. Your eye is as bright with intellect, your heart swells with as true and high an ambition, as that of your wealthy or aristocratic competitor, who, flushed more- over, it may be, with academic honours, confident amid " troops of friends," iS borne to the scene of contest cheered by assurances. A serious difference of opinion prevails, and has long pre- vailed, among the most distinguished persons, both at the Bar, and on the Bench, as to two points. One of these is, the propriety of instituting a Preliminaiy Examination, to test the possession of a liberal education on the part of an applicant for admission into the ranks of an eminently learned professiojj. "Surely," says the present Lord Chief Justice of England,! .. before students are entered at the Inns of Court, there should be a preliminary examination, to ascer- tain whether they have acquired the elements of a liberal education. Such a regulation could not be complained of, like the exclusion of all who could not produce a certificate from the Heralds' College, of gentle birth. Leaving a free course to merit emerging from obscurity, it would guard the Profession of the Law from the intrusion of those who bring discredit upon it by their ignorance, and would pro- tect the administration of justice from being perverted by- vulgar prejudiceSj haunting the minds of those placed in high judicial stations." " I doubt," says, on the other hand, an accomplished witness, called before the Commissioners,* 1 Lives of the Chief Justices, vol. iii, p. 6. 'i Report, p. 126. Mr. PhUlimore, Q. C, Reader on Constitutional Law and Legal History. 36 Teaining foe the Bar. " if either Dunning, or Lord Hardwicke, or Lord Ken- yon, — not to give modern instances (and there are many), would have passed a Preliminary Examination : " yet he concludes his evidence by emphatically " repeating, that he did not mean to express an opinion immovably adverse to a preliminary examination of students ; but, without more reflection, he should not like to say he was in favour of it." In another part of his evidence, ^ however, he seems to sup- j)ly startling evidence , in favour of such an examination, if the Bar is to maintain its position before, and command the respect of, an educated public. " One of the gentlemen who were thought by the Council worthy of ' passing,' had never heard of the Spanish Armada ! Another, who had never heard of Lord Clarendon ! was selected for an ' hon- ourable notice.' The gentleman who had never heard of the Spanish Armada, was allowed to hold rank in a profession supposed to consist of educated men ! "" Surely, in the face of such derogatory instances as these, may be indig- nantly exclaimed — Pudet haec opprobria nobis, Et dioi potuisse, et non potuisse refelli ! The question as to the propriety of instituting this pre- liminary examination would appear to have pas^d, since the Eeport of the Commissioners, jnto a new phase. After the inauguration, by the University ot Oxford, of her cele- brated system of (as it is popularly called) " Middle-Class Examination," in pursuance of the Statute " concerning the Examination of tJiose who are not members of the University" all the real difficulties complained of, disappear. It seems preposterous, in every point of view, to regard him as a worthy candidate for admission into the ranks of the Bar, who has neither the disposition, nor the capacity, previously 1 11., p. 122. 2 " I am a very strong advocate," said an eminent member of tbe Bar, Mr. Whateley, Q. C, tbe |ieader of the Oxford Circuit, and then Treasurer of the Inner Temple, " for a preliminary examination iu respect of general informa- tion, before a, man is admitted as a student. As far as my opinion goes, I thiiik that a previous examination, to prove that a man has had a liberal edu- cation, would have excluded almost all the objectionable men that I have ever knoton at the Bar." Report, p. 54. Conclusions of the Commissionees. 37 to avail himself of the facilities now so nobly ofi'ered by both our great Universities, for showing himself possessed of at least the elements of a liberal education, — of some pre- tensions, however moderate, to the status of gentleman. The standard of education proposed for senior candidates is so reasonable, that unless it can be reached, that fact alone should justify postponing, till that standard has been reached, the admission of one whose ambition so far out- strips his qualifications and pretensions, as to disentitle him to sympathy, and justify its being reserved for one of a bet- ter stamp. The other, and the great question, relates to the uniform test of fitness for the Bar, afi'orded by a compulsory exami- nation. The chief, if not only argument against it, is thus stated, and, at the same time, conclusively answered, by the Commissioners : — " Apprehensions are entertained, lest a Compulsory Test should tend to exclude from the Bar, that class of persons who proceed to it, not with a view to professional practice, but with the intention of becoming members of parliament, or magistrates. We should regret such a result, but do not share in the apprehensious. It must be admitted, that to this class of persons, the knowledge of some portions of science of Law, — especially Constitutional Law and Legal History, Jurisprudence, and International Law ; and of some portions of the professional branches of Law, — as Criminal Law and the Law of Evidence,: — would be highly valuable. It is not found that examinations for Degrees, discourage those persons to whom a Degree is of no practicaV utility in after life, from going to the Universities, and completing their course of education there. And we conceive that the opportunities of obtaining a better education, than is at present offered in scientific and practical branches of the Law, which may be especially useful to the Legislator or the Magistraite, may not only counteract the possible fear of examination, but induce a large number of young men of that class, to prepare themselves for the Bar. Those who may be unwilling to submit to any examination, can have little reason to complain, if they are not allowed to 38 Teaining poe the Bae. assume the position of members of a learned profession. And we are not prepared to say that either the former sys- tem of dining a certain number of days in Hall, or the present additional requirement of sitting a certain number of hours in a lecture-room, should be accepted as sufficient qualifications for that position." " The incurvations of practice," observed Sir William Blackstone,! with equal force and elegance, " are then, the most notorious, when compared with the rectitude of the rule ; and to elucidate the clearness of the spring, conveys the strongest satire on those' who have polluted or disturbed it." As there are spots in the sun, so may there be blein- ishes in the Bar ; and if such can be believed, by a faithful censor of that Bar, to exist, it becomes his duty to indicate them. Passing away, however, from these less grateful topics, let the student rest assured of the truth of the obser- vation with which this chapter commenced : that after mak- ing every allowance for short-comings occasionally deemed chargeable against some of its members, the Bar of England forms, as a body, an institution not unworthy of the English nation, even if in respect only of the unostentatious liberali- ty, and honour, of the great majority of its members. It is a worthy object of any man's ambition, to be recognised as a loyal member of that Bar, whether cheered by the sunshine, or chilled in the shad^ j For loyalty is still the same, Vliether it win, or lose the game : . True as the dial to the sun, Although it be not shin'd upon.2 That Bar, as gratefully receives, as graciously reflects, lus- tre, in respect of every one of its loyal members. It aflbrds scope for the highest moral and intellectual energies, while exposing littleness and meanness to contempt inevitable and unutterable. It has special temptations, and exquisite trials ; but also resplendent rewards for the great and true-hearted, who, resisting those temptations, and enduring those trials, turning to neither the right hand nor the left, nor poorly fainting by the way, hold on to the end. 1 1 Com. 172, note (n). 2 Hudibras, P. III. e. 2. CONSIDEEATIONS ON THE CHOICE OF THE BaB. 39 CHAPTER m. Considerations on the Choice of the Bab. Student, throbbing with the worthy desire of distinction ! have you adequately reflected on the step you are about to take, iu committing yourself to the brilliant but arduous struggles, the precarious fortunes, of the Bar ? Fixing your dazzled eye on the prizes glittering at the goal, have you then glanced round the throng of your competitors at the starting post, all eager and hopeful as yourself perhaps most of them at least your equals, in trained strength and agility, and some, startling your confident self-reliance and self-love, by the suspicion that they are, and that greatly, your supe- riors ? Sobered, perhaps, by the glance you have taken, but by no means disposed pusillanimously to withdraw from the race, look again toward the goal : have you considered well the length of the course ? And eyeing more keenly the prizes which first attracted, do you perceive that they differ from each other, even as one star differeth from another star in glory? There, behold the Gbeat Seal! Well, friend, eye it steadily 1 Why should you sigh, in dismay and despair ? So has, before, you, sighed many a man, who has, nevertheless, afterwards surprised his friends, as much- as disconcerted his enemies, and gained that dazzling central prize — ^that star of the first magnitude 1 Then there are others, stars of the second, and of succeeding degrees of magnitude, some of them come into sight scarce a day or two ago ; . some glistening afar off ; others nearer, of lesser magnitude, but very numerous, and which may be regarded as telescopic stars, visible to only the assisted eye of modest enterprise. The legal hemisphere, however, has not even yet been swept ; for there is the galaxy of Private Practice, ensur- ing its possessor more or less of social position, influence, 40 Considerations on the Choice op the Bab. fortune, and reputation, even enabling him at the same time, to disregard all minor offices and employments, and fix his strong aspiring eye on the stars of only the first and superior magnitudes. But, behold, saith the perplexed stu- dent — where are we ? Suddenly, as it were, attracted from a race-course, into the Heavens 1 "Well, certainly, quoth his Mentor, it would appear so ; and the apparent confusion of metaphor, may be regarded as due to the disturbing in- fluence of The Grandeur of the Law. Such is the awe-im- pressing title of a work^ by a recent learned and laborious writer, evidently subdued by contemplating the Peers who, or whose ancestors, have filled the judicial seat in England I He reverently enumerates : Dukes, 3 ; Marquises, 7 ; Earls, 32 ; Viscounts, 1 ; Barons, 35 : in all, 78 : — a number which has been augmented during the last fifteen years to eighty-four.^ One of the most distinguished names in our legal annals is that of whom the reader has already heard — Sir John Fortescue, ancestor of one of the aforesaid proud Earls, Chief Justice and Chancellor of Henry VI. : and in that famous treatise which has been already quoted,^ he says to the Prince,* with whom he is conversing, " I think it is no less a peculiar blessing, that from amongst the judges and their offspring, more Peers and great men of the realm have risen, than from any other profession or estate of men whatsoever ; who have rendered themselves wealthy, illus- trious, and noble by their own capacity, conduct, and appli- cation : although the merchants are more in number by some thousands, and some of them excel in riches all the judges put together." The opening passage of the Preface 1 The Grrandeur of the Law : or, the Legal Peers of England ; Tvith Sketches of their Professional Career, by Edward Foss, Esq., 1843. This is a little sketch, the title of which Mr. Foss says (Preface, p. xi.), is borrowed from a laborious predecessor in 1684. 2 Lord Truro, C; Lord Cranworth, C; Lord St. Leonards, C; Lord Chelms- ford, C; Lord Wensleydale ; and Lord Eingsdown — The three Dukes re- ferred to, are Norfolk, Devonshire, Manchester; the seven Marquises are, "Winchester, Townshoiid, Salisbury, Exeter, Camden, Aylesbury, Bristol. To the list of Earls must be added two, EUenborough and Cottenham. s De LaudibuB, c. 51. * Bdwai'd Prince of Wales, son of Henry TI., dming his exile. Ambitious Anticipations. 41 to " The Grandeur of the Law" is so pertinent to the pre- sent purpose, that it is here presented to the student : " Few fathers have devoted their sons to the study of the law, without a latent hope, and perhaps a more confident expectation than would bear expression, that they would attain the highest honors of the profession ; and still fewer sons have commenced their legal career, without forming a sanguine prospect of a brilliant termination. Indeed, it will not be too much to say,' that, even in maturer years, the unsuccessful barrister, pondering in his solitary chamber over his infrequent briefs j which come ' like angels' visits, few, and far between,' can scarcely refrain in his day-dream from picturing a more prosperous futurity, in which he sees himself dressed in the ermine, and seated on the Bench. " These ambitious anticipations, though necessarily doomed to frequent disappointment, are not to be ridiculed or discouraged, for the aspirations of the active mind often produce the excellence which leads to distinction : and it is one of the glories of this country, that, unlike other lands, where nobility is never conferred out of a certain grade, there is no position, however humble, no individual, how- ever obscure, excluded from competing for the honors and emoluments of the State. If his talents are prominently exhibited, if his learning is extensive, and his integrity and honour are unquestionable, all remembrance of what his ances- tors were, is lost in the contemplation of what he is. It has been no uncommon occurrence that the son of the most ignoble parent has been raised to the peerage, and by his own character and attainments has graced the dignity. " It will not, therefore, it is presumed, be deemed an un- interesting inquiry, not only to those who are connected with the law, but to those also who are proud of their coun- try, to trace among the present members of the House of Peers, the number of those, by whom, or by whose ances- tors, the judicial seat in England has been filled. It may, perhaps, also, not be without its efiect in exciting the indus- trious scholar to a prosecution of his labors, by exalting the study in which he is engaged, and by exhibiting to his view. 42 Considerations on the Choice op the Bae. as a possible reward for his perseverance, an object of legiti- mate ambition." Let 'not the student, however, be so idly fascinated by this, the bright side of the picture, as to suppose that it has no dark sidel Let him even credit himself, justly, with the possession of superior, or even first-rate powers, and every disposition to use them with discretion and deter- mination : still must be whispered in his ear the mournful saying of the Royal preacher, / returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of under- derstanding, nor yet favour to men of shill?- There are causes in operation which paralyse the strongest nerves : there is a ho'pe deferred which maketh the heart sick,'' of those who have never been able to obtain a fair start in the race ; or, having once had it, have afterwards been distanced or thrown out by the caprice and neglect of others, or from physical powers imequal to the heavy, unceasing demand on them : from deficient pecuniary resources : from haughty impatience, or morbid sensitiveness, leaving them soured in temper, and broken in spirit, — consciously neglected and forgotten, — prostrate, and, as it were, crushed under the foot of favoured mediocrity and unscrupulousness 1 Pro- fessional discomfiture at the Bar, moreover, has this specially tantalising and mortifying incident, — that so much failure lies close to so much success, whether well or ill deserved. Without pursuing this painful topic further, let the student look calmly at both the bright and dark side of the picture ; being in the meantime assured, that contemplating the prizes of the Bar, and his own likelihood of obtaining them, is really but a small part of the subject with which .he has now to deal, if he desire to be regarded as a student of superior pretensions, and promise. That to which he must direct his serious attention, is the intellectual and moral character, attributes, and requirements of the science or profession of Advocacy. It deals with the moral and 1 Bcclesiastes, ix. 11. 2 Prov. xiii. 12 The wise man. adds, however, but wlien the desire eometli, it is a tree of life. Id. ib. Scope of Foeensic Duties. 43 material interests of every individual in the comnaunity, from the Sovereign on the throne, down to the inmate of a Poor House : under circumstances affording incessant and subtle temptation to do wrong, as well as opportunities for exhibiting the noblest qualities of our nature. The finest intellect, illuminated by the purest conscientiousness, has here ample scope for action : but so, also, have the most powerful faculties, though darkened by the absence of honour and religious principle. . Well, indeed, is it said by Sir William Blackstone, that " the law is a science which distinguishes the criterions of right and wrong ; which teaches to establish the one, and prevent, punish, or redress the other ; — which employs, in its theory, the noblest faculties of the soul, and exerts, in its practice, the cardinal virtues of the heart : a science which is universal in its use and ex- tent, accommodated to each individual, yet comprehending the whole community."^ Every imaginable modification of right, and every shade of wrong, or infraction of right, arising out of the endlessly varying interests, exigencies, and transactions of mankind, — incessantly presents itself to the lawyer's eye, challenging the prompt and precise appli- cation of appropriate modes of vindication, and redress. Is it a light matter, then, to encounter the study and practice of Juripsrudence — a science which, in the language of the great Edmund Burlie, " is the pride of the human intellect : a science which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the prin- ciples of eternal justice, with the infinite variety of human concerns ?" Very little reflection must surely suffice to sat- isfy a thoughtful student, of the gravity of such an under- taking as he meditates ; the acquiring such, and so inuch, knowledge, and the means of using it under circumstances, of peculiar difficulty. Let him by no means, however, be disheartened. " Our profession,^' said one of its bright or- naments,'-^ "is generally ridiculed as being dry and uninter- esting: but a mind, anxious for the discovery of truth and information, will be amply rewarded for its toil in investi- 1 Comm. 27. * Mr. Dunning, afterwards Lord Ashburton. 44 Considerations on the Choice of the Bae. gating the origin and progress of a jurisprudence, which has the good of the people for its basis, and the accumulated wisdom and experience of ages for its improvement." Listen, again, to another celebrated man,i describing his first impressions of legal study : " I have just begun to con- template the stately edifice of the laws of England — ' the gathered wisdom of a thousand years,' if you will allow me to parody a line of Pope. I do not see why the study of the law is called dry and unpleasant ; and I very much sus- pect that it seems so to those, only, who would think any study unpleasant, which required a great application of the mind, and exertion of the memory." Plere also, again, Edmund Burke, characterising the law " as, in his opinion, one of the first and noblest of human sciences : one which does more to quicken and invigorate the understanding, than all the other kinds of learning put together.^ The profession of the Bar is usually adopted at a period of life when, if at all, a sober and manly judgment on such a matter, may be looked for. Listen to the teaching of a sagacious old lawyer of 1675. The ensuing paragraph is equally characteristic and instructive, and every whit as ap- plicable in 1859, as in 1675.'' " Many, applying themselves to the study of the law, without due and serious consideration of the qualifications such a student ought to be furnished withal, have missed of that content and delight which are ti'easured therein ; and instead thereof, have met with trouble and vexation of spirit, judging it to be studii, non sui mor- bum, an inseparable incident to this study ; thinking it uuat- tainable and full of difficulty, because they are not qualified for the same ; according to that of Seneca, Multis rebus inest 1 Sir William Jones. 2 He adds, howevev, " but it is not apt, except in those who are happily born, to open and liberalise the minj, exactly in the same proportion :" an ob- servation "worthy of being borne in mind, for its weighty truth. 3 The sight of the Latin quotations with which the following passage is so profusely studded, may remind the reader of a remark of Sir Thomas Browne, almost equally applicable to his own writings : " and indeed, if eleganoie still proceedeth. and Enghsh pens maintain that stream we have of late observed to flow from many, we shall, within few years [ho was writing in 1G46] he fain to learn Latin to understand English, and a work will prove of equal facility in either." Pseud. Epidem. — Epist. to the Reader. Physical Energies Sevbbelt Taxed. 45 magnUudo, non exnatura sua, sed ex debilitate nostra. And certainly it cun be no otiierwise, where any imdertake a pro- fession inviia Minerva (as we say), when both their genius and qualifications check them in their choice. For those things delight every man, and those only which are Oketa TTJ (pvaei, as the philosopher speaks, suitably fitted and accom- modated to their genius and frame of nature. It is for the thoughtful student, or his provident friends, to consider whether he bei physically or mentally equal to such wear and tear as this, or even to anything approaching it, for ten months in the year, and that, too, year after year. What can be more wretched than to enter on such a career, and when the sunbeams of success are beginning to shine upon him, be obliged to withdraw, and " turn his pale face to the wall"? How often does a man hold desperately, and fainting on, from reasonable fear of ' losing his connection,'^ where a year's intermission might have prolonged his life : which, indeed, would never have been endangered, had he but selected a calmer walk of the profession, or even another profession where a frail constitution may nurse itself and hus- band its energies ! Let not the student, on the other hand, yield to chimerical apprehensions, of themselves disabling him from any pursuit in life. If conscious that he has but too much real ground for caution, that caution let him exhibit, by con- sulting his health ; by moderation in living, and in studying; by avoiding scenes of dissipation, as he would places swarming with deadly snakes : and with God's blessing, he may tran- quilly pass through many a storm, into dignified repose and security — " the chair-days of most reverend age." Nothing can sustain the burthen of extensive or at lest of first rate practice, but a good constitution, gradually strengthened and, so to speak, case-hardened by early and systematic care. But, it may be asked, is not all this common to other professions, especially that of physic ? No. At the Bar, the lungs are incessant and often severe exercise ; the con- suming fire of excitement is ever kept up by eager contests, 1 See the author's of the life of his late most learned, able, and aooomplished fi-iendj Sir John William Smitli. " Miscellanies." tit. " John WilUam Smith." 46 Considerations on the Choice oe the Bar. about matters often themselves exciting ; against eager ri- vals/ under the stimulus and pressure of constant publicity, and the hope and prospect of advancement and distinction. How can this co-exist with wealtness — a predisposition, per- haps hereditary, to disease in the lungs, in the brain, or other vital organ ? Yet it may be said, how rarely one hears of unfortunate cases of this description, especially among the foremost members of the profession 1 There are, however, more FoUetts,^ in this respect, than the public is aware of : besides which, it may be fairly said, that those on whom the student's eye is fixed so anxiously, could not have reached, or retained, their high position unless favoured with a strong constitution. If such comparison be allowed — those who have been able to stand so long in the flames, may safely be pronounced fire proof I May these friendly cautions, how- ever now spurned with an impatient incredulity, by the eager forensic aspirant, never be recalled amidst the sad scenes of a sick chamber — by one drooping in premature decay ! But must these dismal and dismaying apprehensions, it may be again asked, sei-ve in all cases to seal the lips of eloquence, consigning a Cicero to inglorious obscurity and silence? By no means ! How many have rashly adopted and clung to the Bar, who might have adorned the pulpit, or even, after due and safe delays, the senate ? Who might long have distinguished themselves in any other elevated walk of life, than that which they had selected so unwisely, and unfortu- nately ? How many might have adorned the ranks of litera- ture and philosophy, transmitting to posterity a distinguished reputation, had they not rashly plunged into the dead sea — for such, to them, it may prove — of law, to be instantly and ingloi'iously extinguished 1 Supposing, however, and incli- nation towards the Bar cannot be overcome, let it be yielded to discreetly : by passing, for instance, with every attention 1 " If you give way Or edge aside from the direct forth-right, Like to an enter'd tide they all rush by And leave you hindmost." Troilus and Cressida, Act III, Scene 3. 2 See the author's sketch of the Life of Sir 'William FoUett, in "MisoeUa- nies." Adequate Pecuniakt Eesouboes. 47 paid to health, a lengthened Chamber-novitiate. Mora dat vires. In this comparative repose, frail physical powers may rally, and so far make head against morbid tendencies, as even at length to justify gradually and cautiously adventur- ing on the more formidable scenes of forensic, or parliamen- tary life. Has the student, again, adequate pecuniary resources, — such as will ensure him, for a reasonable period of study and probation, mental tranquility, and enable him to avoid compromising the credit of the Bar ? This is a topic of a practical nature, delicate and difficult to be dealt with. Few questions, indeed, could be asked, the answer to which would be looked for with livelier anxiety, by those whom it con- cerns ; and it is felt that to deter by too high, or tempt by too low, an estimate of the requisite expenditure, would be equally censurable; productive of serious injury in either case, and unavailing regrets and mortification. The attempt, however, will be made, to supply trustworthy information, to those who may reasonably expect it, from a work of this description. The late Lord Abinger declared his deliberate opinion to be, that no one ought to come to the Bar ^ who did not pos- sess an independent income of 300?. a year ; but now-a- days, such a requirement would generally be regarded as unreasonable and mischievous. It might render the Bar equally select, and incapable ; excluding, as it would, a large class of able and promising young men, whose severe self- denial would make even a third of that sum suffice, and with it, at length, triumphing over every obstacle, distance him who had enjoyed teu times their humble resoui'ces. It can- not, on the other hand, be doubted, that entering an Inn of Court with really inadequate means, entails an amount of hindrance, and suffering, to which no man of only ordinary prudence ought, however ambitious, to expose himself. How can such an one, let him reflect, give himself up, heart and soul, to his exacting studies ? How can he be expected to 1 The author believes that Lord Abinger even went so far, as to hold that a person should be prevented, by legislative enactment, from coming to the Bai-, if not -possessed of the income specified in the text. 48 Considerations on the Choice or the Bar. do so, while harassed by importunate claimants, whom he can neither pacify, postpone nor satisfy ? If a student thus circumstanced be a man, however rash, of sensibility and honour, distress distracts his attention, and enfeebles his faculties ; he sits, so to speak, with a mill-stone hanging from his neck, perhaps surrounded by those who, with no such incumbrance, cheerful, " with all appliances and means to boot," are, as he feels with bitterness and alarm', hourly distancing him in the acquisition of professional knowledge. Since only so short an interval as three years elapses, at present, between entering an Inn of Court and being called to the Bar, does not ordinary prudence dictate the inquiry, Have I, or can I command, funds to support me during those critical three years ? And how shall I stand when those years have elapsed, and those funds are exhausted ? Am I then to betake myself dismally to borrowing, and from that moment become a slave ? Or shall I be able, by the honourable use of my pen, or othei'wise, to sustain my- self during the trying period of anxiety and suspense on which I must calculate, before beginning to derive support from the practice of my profession ? Or am I content to shut my eyes on a threatening future, and idiot-like trust to " the chapter of accidents ? " One of very limited means, is apprised that his first out- lay will be of 4:01, or thereabouts, for the stamps and other expenses attendant on being entered at an Inn of Court ; and that he must, if not a graduate of one of the recognised Universities, deposit the sum of 100?. by way of caution money. If he choose to dine every day in the Hall of the Inn, during the four terms, it will cost him 137.; but half that sum will sufiice, if he choose to dine only so many times as constitute "keeping his term." He cannot do real justice to himself, without appropriating 200, or, at the lowest, 150 guineas during the ensuing three years, for fees to the gentle- men in whose chambers he is to see the practice of the pro- fession. No prudent and experienced adviser would sanc- tion dispensing with chamber tuition, nor, consequently, dis- carding this considerable but well-disposed item of expen- diture. Then the student must live, though as economically Outline or NECESSAEr Expendituee. 49 as he may feel to be necessary. A set of chambers in one of the four Inns of Court, amply sufficient for his purpose, may be obtained at as low a rental as 25?.; and for little more than that sum they may be adequately, though modestly, furnished. Taking all these things into account, a student cannot expect to live in London, even practising severe economy, under 150?. a year. But if he be in earnest, this he can do, and maintain the status of a studious gentleman. To such an one, Inn-of-Court life is very pleasant. He has access, as has been seen, at all hours of the day to the gardens of his Inn, and may spend his whole days, in the amply-stored libraiy, with every convenience and comfort at his command. He has a seat in the magnificent Temple Church, or the Chapels of the other two Inns. When eligible to be called to the Bar, if he have deposited his 100?. on entering the Inn, he will, provided he have regularly paid his commons' bill, receive back from 15?. to 20?., the residue being absorbed by the stamp fee of 50?., and other necessary expenses. Once called to the Bar, the pro- fession has no further pecuniary claims on him, except trifling annual "dues," varying in the different Inns, between 1?. and 2?. or 31, He may also continue to dine, as long as he pleases, and with great comfort, every day during Term, for the sum it had cost him before. Whether he will be content, awhile, with the modest chambers in which he commenced his forensic career, or engage others, is a matter for himself to determine. A clerk can hardly be procured for less than five to six shillings a week, nor a laundress under 10?. a year. The nucleus of a Law library may be set down at 40?. or 50?.; and from 4?. to 10?. a year will supply the current Reports, and an occasional book of Practice. A wig and gown cost about 8?., and an objectionable item of 2?. or 3?. a year, consists of rob- ing-room fees. Thus equipped, and starting thus, the future Chancellor or Chief Justice may continue to live with as severe simplicity and economy as he pleases. If he select the Common Law Bar, he must make up his mind to a some- what serious item in respect of Sessions and Circuit, — depend- ing on the number and frequency of the one, and the extent 50 Considerations on the Choice of the Bae. and distance of the other.^ Roughly estimated, this head of expense will be from 801. to lOQI. a year ; and it is saved, of course, by him who selects the Equity department of the profession. Guided by these few plain hints, let him who is fortunate enough to possess, or who can safely depend upon being supplied with funds sufficient to secure g, " start " in the profession, still ponder his future. Let him steadily contem- plate the disagreeable contingency of failing, after a fair trial, perhaps painfully protracted, to secure a livelihood at the Bar. He may, by that time, have become unable to turn to another calling : friends and opportunities may have disappeared, and he may have lost heart. Sad, indeed, will it be, then to find no reserve ; nothing to fall back upon : middle age, so far from brightening with realised hopesand expectations, only darken- ing with disappointment and apprehension . Surely, it should be regarded as a friendly voice which whispers, be wise, and be wise in time 1 And that same friendly voice is again heard gently asking of one confident, and panting with eagerness, at the thresh- old of the bar — Have you a fair and reasonable prospect of introduction to business ? Do not at once leap into a Foal's Paradise, and place a delusive reliance on the very civilest assurances of future support. Alas, what broken reeds they are generally found 1 Promises of this sort are made in a moment, forgotten in a moment ; and when the time for performance has arrived, three or four years after- wards, the most plausible reasons can be given, accompanied by honied expressions of regret, for non-performance. "It is so unfortunate ! If it had but been two years — or even a year ago—" and so forth. The reasons are profuse, satis- factory, and so — sickening I "Whatever be his talents and acquirements, and however justifiable a reliance on proffered assurances of support, the student is warned that he must, so to speak, lay in an ample stock of fortitude and patience. Years, perhaps even many years, may elapse, before his op- poi'tunity presents itself. Even so it is now, as it was in 1 It must be borne in mind that considerable alterations ai'e likely to be effected in the existing circuit arrangements. Delusive Eeliance on Peomises, 51 the days of Eoger North. " This length of time in the ap- proaches to practice, must be endured," he says : "for what inconvenience is it, wh&n a man has once f/rmly dedicated his whole life to the law f If any good fortune invites to any steps forwarder — there he is to embrace the opportunity ; if not, he caunot be secure of moderate success in the profession, but by entering by proper means, and not per saltum, leaping over hedge and ditch to come at it. An egg may have more than its natural heat, but will hatch or be addle ; therefore let the motions be rather phlegmatic than mer- curial — for 'tis a true saying, ' soon ripe, soon rotten.' "^ When Boswell told Dr. Johnson that he intended trying his fortunes at the English Bar, "You must not," said the great man, " indulge too sanguine hopes, should you be called to the Bar. I was told by a very sensible lawyer, that there are a great many chances against any man's suc- cess in the profession of the law, — the candidates are so numerous ; and those who get large practice so few." " He said," continues his attendant, " it was by no means true that a man of good parts and application is sure of having business ; though he, indeed, allowed, that if such a man could but appear in a few causes, his merit would be known, and he would get forward ; but the great risk was, that a man might pass half hie life-time in the courts, and never have an opportunity of showing his abilities."^ This is as true in 1859, as it was in 1777. In the tedious interval which must elapse between preparation and employment, will be required all the young lawyer's fortitude and phi- losophy. He must be content to " bide his time" — to " cast his bread upon the waters, to be found" only " after many days." He must never give up ; he must not think of slackening his exertions, thankless and unprofitable though they seem to be. Does he imagine his to be the only un- watered fleece ? — Let him consider the multitude of his competitors, and the peculiar obstacles which, in the legal profession, serve to keep the young man's " candle," be it never so bright, so long, " under a bushel." How many, 1 Discourse, &o., pp. 34-35. 2 BoBwell's Life of Johnson, chapter Ix. 52 Considerations on the Choice of the Bae. with pretensions vastly superior to his own, are still pining in undeserved obscurity, after years of patient and profound preparation 1 It is impossible to disguise this sad fact ; it would be cruel and foolish to attempt it. The student of great but undiscovered merit, will sometimes be called upon, his heart aching, but not with ignoble envy ! — to give his laborious and friendly assistance to those who, immeasur- ably his inferiors in point of ability and learning, are rising rapidly into business and reputation, through accident, through conneKion, — it may be, even, through undue and unfair advantage and favour. This, also, the student must learn to bear ! He must repress the sigh, force back the tear, and check the indignant throbbings of his heart, while, in the sad seclusion of unfrequented chambers, or the sadder seclusion of crowded courts, he watches year, perhaps, after year passing over him, " each leaving — as it found him." 'Tis a melancholy but a noble struggle to preserve, amid trials such as these, his equanimity — " in patience to possess his soul." Let him neither desert, how- ever, nor slumber for a moment at his post. "In this lot- tery," it has been well observed,^ "the number of great prizes will ever bear a small projjortion to the number of competitors. You, or any of your contemporaries, may or may not, in the end, have the very prize on which you fixed your eye at the onset ; but can he ever have it, who takes his ticket out of the wheel, before the prize is likely to be draion ? For our comfort, however, in this lottery of the profession, there are comparatively but few blanks, if, in- deed, there be strictly any. The time and labour we employ, which may be considered as the price of our tickets, must always produce useful knowledge ; though the knowl- edge that is acquired may not be attended with the profit or eminence which we expected." There seldom yet, said a great judge, has been an able and determined man who really did justice to the law, to whom it did not, in turn, at one time or another, amply do justice. His success is sometimes as sudden, as splendid and 1 Wynne's Eunomus. Dialogue II. Dignified Duties of Advocacy. 53 permanent. Names could be easily mentioned, of those who knew scarce a year's interval, between an income of two or three hundred pounds, and as many thousands, a-year. In a inoment, in the twinkling of an eye, the desolate dark- ness is dissipated ; , the portals of wealth, popularity, and power, are thrown open ; and he does not walk, but is in a manner thrust onward into their radiant regions. JVon it, sed fertur. For all this he is fully prepared ; the '• viginti annorum lucubrations " bear him up, under the most unex- pected accumulation of business, and enable him calmly to take advantage of this "occasion sudden." Patient and modest merit, may be assured that friendly eyes are more frequently observing it, though they have to penetrate through the shadows of long-continued and undeserved neg- lect, than the possessor of that merit may suspect. Some time ago, a gentleman at the Bar, of high personal charac- ter, refined and accomplished mind, and solid professional acquirements, but scarcely ever employed in business, was greatly surprised, one afternoon, by receiving a letter from a profoundly learned Lord Chancellor, offering him certain valuable promotion. "I had no personal knowledge of him, and question whether I had even seen him," said the Chancellor to a friend,^ who assured him of the satisfaction with which the appointment had been received at the Bar," " but I knew his labors, and appreciated the learning and talent they showed. It is 'true that I never saw his name in the Eeports, as arguing cases, but I determined to do what I could for him, whenever I had the opportunity." "No one was more surprised than he was." " Well he might be. Neither he applied to me, nor any one on his behalf It was entirely my own doing, and very happy I was to do it. I have always kept my eye on modest men of neglected merit at the Bar." Finally, let the student strive to form a fitting conception of the dignified and important duties which he seeks -to undertake. To his keeping, are from time to time entrusted the most delicate and momentous affau-s and interests of all 1 The author of this work. 54 Considerations on the. Choice oe the Bae. classes of society : — entrusted to his honour, his discretion, his experience, ability, and learning, with a confidence which ought never to prove misplaced. His fitness, or unfitness for such a trust, is open to the observation of all. Qui in excelso OBtatem agunt, eorum facta, cuncii mortales novere.^ He aspires, in due time, to occupy the seat of jus- tice, and that with a purity, with a grace, with a dignity which shall be recognised and applauded by all. In such an exalted position, for such ennobling responsibilities, what novitiate can be too long, or too severe ? But who is sufficient for these things f He who will commence his career in the spirit exhibited by a great man, the glory of English letters, Samuel Johnson ; who once meditated devoting himself to the study of the law, and has left on record^ a prayer, worthy of being engraved on the memory, and the heart, of every, student of the law : — "Almighty God, the giver of wisdom, without whose help resolutions are vain, without whose blessing study is ineflfectual, enable me, if it be Thy will, to attain such knowledge as may qualify me to direct the doubtful, and instruct the ignorant ; to prevent wrongs, and terminate contentions : and grant that I may use that knowledge which I shall attain, to Thy glory, and my own salvation, for Jesus Christ's sake. Amen."^ 1 SaUust De BeU. Cat. LI. 2 26th September, 1765. 3 Boswell'B Johnson," chap, xviii. Chaeactees, PeetensioNs, and Peospeots. 55 CHAPTER V. students : Theie Chaeactees, Objects, Peetensions, and Peospeots. The varied throng of candidates for admission to the Bar, will be found, perhaps, separable into three classes : and when this has been done, we shall be enabled, by look- ing more distinctly into the characters and objects of each, to form a just estimate of their respective pretensions, and prospects. It is proposed to devote this chapter to such an enquiry ; shortly suggesting what each individual has to expect, and what not ; — what to learn, and what to unlearn. The first class comprises those who may for convenience'- sake, be styled merely nominal, or amateur students ; the second, those who seek to qualify themselves for the duties of the legislature, or magistracy ; the last, those who purpose becoming actual practitioners. Of these, then, in their order. I. — The class of merely nominal, or amateur law stu- dents, consists of those who become such, simply from a desire to attach themselves formally to one of the learned professions, but with no intention of ever practising ; with no necessity, indeed, for doing so. Many of these belong to the highest classes of society, and have ho other object in view, than amusement and quasi occupation, before coming into the full possession of their fortunes. Need it be said that such are always welcome, and even valuable, additions to the society of the Bar ? Many young gentlemen, not of this highest class, enter, or are sent to, the Bar, as others into the army, navy, or perhaps the church— purely to say that they belong to it ; and are influenced in doing so, seldom by any other feeling than that of indolence or indifference. Some, to be sure, contrive to gratify their vanity, and that of weak relatives and friends, by the hope of hearing themselves sometimes spoken of as " tlie learned gentleman ;" and feel asmuch satisfaction in &6 Characters, Pretensions, and Prospects - being able to assume, at will, the grave imposing vesture of comisel, as others experience in wearing the gay and dash- ing uniform of the soldier. They are Certainly entitled, by this means, to a good seat in the courts, when interesting trials are on ; and to go the circuit, and share its excite- ment, frolics, and variety. It is not, in short, a very expen- sive way of securing a pleasant, and sometimes eminent acquaintance ; of purchasing, as it were, a free admission, both before and behind the scenes, to the entertainments of the legal theatre ! A few of these gentry there may be, fore- casting enough to autieipate the possibility of their present means not always enabling them to continue the life of a fine gentleman ; and that it may therefore be advisable to secure a chance of employment at the Bar, if, unfortunately, there should ever be a necessity for it. They will be pos- sessed, certainly, of long standing 1 and will, besides, no doiibt ! find it as easy to assume business habits, and acquire legal knowledge when needful, as their wig and gown I Chambers will thus be a shelter from the pitiless pelting of the storm of poverty I They will be found, iu the esti- mation of some few other members of the class, constituting, it is hoped, a small minority, delightfully calculated for wine-parties, as well as" hiding-places from inquisitive rela- tives, and impertinent creditors. If overcome with excite- ment, at any of those vivid scenes of enjoyment which a London life afibrds, they can retreat to chambers at a moment's notice, bar the outer door, and sleep off a debauch in sacred silence ! " ' Ifeinpe hoc assidue 1 — jam clanini mane fenestras Intrat, et angustaa extentUt lumine rimas.' ' Stertimus, indomitum quod despumare Falemum, Suffioat — quinta dum linea tangitur umbra.' ' Bn,~quid agia 1 sieoas insana canionla messes Jamdudum coquit ! — * * ' TJerumne ? Itane f 'Jam liber, et bioolor positis membrana capillis Inque manus chai'tse, nodosaque venit arundo. Tunc queritnr, orassus oalamo quod pendeat humor : KTigra quod infusa vanesoat sepia lymph a : Dilutas queritur geminet quod fistula guttas. 0, miser ! — inque dies ultra miser I' " 1 1 Pers. Sat. III. Aeistocratic Students. 57 Never need this sort of student be at a loss for an account of himself, when questioned by one pleased to thidk him- self entitled to receive one. Is he absent from his cham- bers ? He is at those of the pleader, or barrister, under whom he studies I Is he not there ?— He is gone down to court, at either Westminster, Lincoln's Inn, or Guildhall, to hear a great cause tried, or argued, in which he has drawn the pleadings. Is he not to be found there? He has returned, indefatigable man, to his chambers, there to digest the legal acquisitions of the day I II.-7-The second class of students is a select and distin- guished one, consisting almost exclusively of those young men of rank and fortune who, l)orn to an exalted station,, and not satisfied with barely occupying it, are inspired with the proud ambition of adorning that station : who, if a pro- fessional allusion may be pardoned, will not inherit, but purchase greatness. " Honotirs happiest thrive "When rather from oiir'aots we them derive Than our foregoers." Duly appreciating the importance of the duties ere long to devolve upon them, they are nobly anxious to qualify them- selves for filling worthily the important office of magis- trates, or sustaining the more splendid responsibilities of legislators and statesmen ; by obtaining, if so disposed, and capable, that from 'which much may be hei'eafter expected, a thorough and comprehensive knowledge, both theoretically and practically, of the country's constitution, and of the legal relations, rights, and duties of civil life. To the para- mount importance of acquiring such knowledge, all the greatest and wisest men have borne testimony. The Em- peror Justinian ^ thus at the close of the Proemium to hia "Institutes," addressed the noble youth of his dominions, for whose use he had caused those Institutes to be pre- pared. 1 Summa Hague opo, et alarci studio, has leges nostras aceipite : et vos- metipsos sic eruditos ostendite, ut spes vol pulcherimma foveat, toto legitimo opere perfecto, posse etiam nostram rempublicam, in parWbus ejus vohis cre- dendis, guTiernari."— Justin, in Proem. Inst. [Dated the 21st Koy., a. d. 533.] 58 Chaeactees, Peetensions, and Peospects. " Receive, then, these our laws, and address yourselves at once to the study of them, with cheerful energy. Show yourselves such proficients that, having thoroughly mas- tered them, you may justly cherish the brightest hopes of bearing a part in the government of your country, and ac- quitting yourselves with honour, in the offices which may be entrusted to you." One of the constitutions of our own King Alfred, ex- pressly required that his nobility should be instructed in the laws.^ Without this knowledge, indeed, a man will advacf e but empty and contemptible pretensions to exercise the func- tions of a statesman, or a legislator. He will be really a cypher in either house of Parliament ; he cannot, creditably to himself, or safely for the country, even vote, on questions of the true nature of which he is ignorant — those questions continually relating to the administration of the law, and proposed changes in it, of magnitude. What but an in- glorious mute can such an one be, on great constitutional questions, often started as suddenly, as the interest they ex- cite is universal ? He cannot prepare himself fitly as either listner or speaker, for such occasions as these, at a minute's notice ; and then he will bitterly realise the want of those careful leisurely acquisitions of early .years, which he sees telling so powerfully in favour of their provident possessors ! Whatever may be attributable to structural defects in the legislature, which it seems at once as ready to recognise as impotent to remedy, it cannot be doubted that legislative action sufiers seriously from the defective training of its members. What a difference would now be visible, if every member of either house of Parliament possessed a fair knowledge of the actual condition, and practical working of our laws ! knowledge, too, attainable with greater ease than m;iy be supposed. A single year, well spent, in the chambers of an able practitioner of the law, would prove of incalculable service to the future les-islator, and invest his parliamentary duties with great and enduring interest. 1 Maoquesn's " Practice of the House of Lords/' 2, note b. QuALiriCATiDNS OF THE Magisteact. 59 He would there see how law really acts upon the concerns of life, in all its relations, coming home to the business and bosom of the entire community; why it should be altered, and how the alteration should be eflfected — without being forced to take all such matters upon trust. Our physicians dare not attempt to administer the simplest physic, our surgeons to perform the commonest operations on the human body, without having first learned the differ- ence between diseased and healthy structure and function — without having seen and studied all its inward parts, devot- ing to the most secret and minute, their profoundest atten- tion ; but our state physicians will administer the most potent medicines, our state surgeons perform the most cap- ital oderations, without having even effected to learn the plainest principles of state medicine, pathology, or surgery, or devoted a single moment to dissection I What, then, can they be, in plain terms, but impudent and presumptuous quacks ? And what is to become of the state patient ? Properly to discharge the duties of the magistracy, requires, in our days, much more legal knowledge, and readiness in using it, than have hitherto been too frequently deemed sufficient. The jurisdiction of magistrates has been enor- mously extended, and is now of a very multifarious char- acter ; and although they have recently been surrounded with valuable safeguards against vexatious and malicious challenges of their exercise of authority, any errors in law, committed by them in their summary jurisdiction, are now, as we have seen, liable to be questioned and rectified, and even at their own cost, before a superior tribunal, at the in- stance of the party injuriously affected by the miscarriage. For such things frequently to occur, would not be creditable to a magistrate ; but how is he to avoid them, if ignorant of the very elements of law — of the leading principles of evidence, for instance, and. the construction of statutes? Is he content to be a mere tool in the hands of the magistrates' clerk ? Is he indifferent to the humiliating rebuff of a sharp pettifogger, who repeatedly catches him tripping ? And does he view with complacency the increasing tendency to supersede his order, by paid lawyers — that is, by stipendiary 60 Chabactees, Pretensions, And Peospects. magistrates ?^ It is, however, of much more moment to the public, than to the magistrate himself, that he should be properly qualified for the duties which are generally the object of a legitimate ambition ; since an ignorant, can hardly fail of being an unjust judge, and may inflict griev- ous injustice, unconsciously — except where his errors are exposed, often with great, but not unjust severity by a vigi- lant press. Whether, therefore, with a view to qualification for the legislature or the magistracy, let the class of students now under consideration enter the profession, with cheerful resolu- tion to undergo its honourable and invigorating discipline. They will find it not only the true and only source of con- stitutional learning, but the finest school for talent, perhaps. 1 The case of The King v. Borrow (3 Bam. & Aid. 433), is one both inter- esting and important to Justices of the Peace. A Eule for a oriminal in- formation against a Lancashire magistrate, for alleged misconduct in the exercise of his office, was discharged with costs : and in the oarefolly consid- ered judgment of tlie Court, delivered by Lord Tenterden, 'C. J., occurs this instructive passage. " The application is made against a gentleman who is one of that class of persons to whom this country is under as great obliga- tions, as this or any other nation is, or ever was, to any members of its com- munity : — I speak of the gentlemen residing in the diflferent parts of England, who act in the execution of His Majesty's Commission of the Peace, and who gratuitously devote a great portion of their time, and bestow much valuable, but often thankless labour, in the administration of many branches of the law ; and among others, in most of the early, and in many of the mature stages of our oriminal jurisprudence. In this most valuable class, many persons are found who possess a sound knowledge of the law, united with the most use- ful and extensive practical information. They ai'e called upon in many cases of a difficult, and in many of a delicate kind, and are in general addressed by those who apply to them with the respect that is due to their station and character. The present case affords an unusual, if not a solitaiy instance, of address, in the language of demand and menace. They are, indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But whenever they have been challenged upon this head, either by way of Indictment, or application to this Court for a criminal information, the question has always been, not whether the iiot done, might, upon fuU and mature investigation, be found strictly right, but from what motive it had proceeded ; whether from a dis- honest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case alone, they have become the objects of punishment. To punish as a oriminal any person who, in the gratuitous exercise of a public trust, may have fallen into en'or or mistake, belongs only to the despotic raler of an enslaved people, and is wholly abhorrent from the jurisprudence of this Idngdom." SUPEECILIOUSNES'S AND PeESUMPTION EeBUKED. 61 in the world. Infinite pride, conceit, and pedantry, are rubbed off in a single month's friction of its fearless rivalry ; and a volatile temper may have here its besli, and perhaps latest chance of being sobered and settled into business habits. " Goe now, yee worldings," says old Bishop Hall, " and insult over our palenesse, our needinesse, our neglect. Yee could not be so jocund, if you were not ignorant ; if you did not want knowledge, you could hot overlooke him that hath it : for me, I am so farre from emulating you, that I professe I had as lieve be a bruit beast as an ignorant rich man. How is it, then, that those gallants which have priv- ilege of blond and birth, and better education, doe so scorn- fully turne off these most manly, reasonable, noble exercises of scholarship ? An hawke becomes their fist better than a booke ; no dog but is at better companion."^ The professira, it is repeated, opens wide its arms to re- ceive these visitors, but reasonably expects them, in return, to exalt it in public estimation, not by the bare fact of their having belonged to it, but by exhibiting proofs of the high culture they have received, — of thrar having left it wiser and better men than they bad entered it. Should, however, any aristocratic idler now enter that profession, with a view of discovering only a ready access to place and sinecure, he may be assured that he will find himself mistaken. The time for that sort of speculation, is for ever gone by. What- ever disposition may have existed at any time, to create and dispense such patronage as is thus sought for, the vigilance of the Bar, and the fearless vigilance of the Press, render success in such attempts, a task of daily increasing difficult3\ Legal office, of any kind, can now be rarely obtained, or at least retained, by any one who is not able personally to dis- charge its duties ; and in order to do so, the candidate must "Doff his spai-kliiig cloak, and fall to 'vrork, With peasant heaat and arm ;" forget, for a while, splendid connections, fastidious tastes, and fashionable life, and enter himself in the third or work- ing class. Nor let him fancy that in doing this, he is " con- 1 " Epist. to Mr. Matt. Milward." 62 Characters, Pretensions, and Prospects. descending to men of low estate." He is entering a stern re- public, in coming to the Bar. Nothing will suffer, in its per- petual collisions, but a preposterously short-sighted pride, and leprosy of " exclusiveness." No magnificent airs of puppy- ism and presumption will be tolerated, there. "I confesse I cannot honour blond without good qualities ; nor spare it with ill," quoth the same stern old bishop already quoted. "There is nothing that I more desire to be taught, than what is TRUE NOBILITY : what thanke is it to you that you are born well ? If you could have lost this privilege of nature, I feare you had not been thus farre noble : that you may not plead desert, you had this before you were ; long ere you could either know or prevent it ; you are deceived if you think this any other than the body of gentility : the life and soule of it is, in nobler and vertuous .disposition, in gallant- nesse of spirit without haughtinesse, without insolence, with- out scorneful overlinesse : shortly, in generous qualities, car- riage, actions. See your error, and know that this demean- our doth not answer an honest birth." ^ III. — The third class comprises all those who enter the profession with a view to becoming practitioners ; and this class it may be well to subdivide. First in order are Univer- sity-men, especially those from far-famed Oxford and Cam- bridge, where some have greatly distinguished themselves. Hear Lord Coke, himself a Cambridge man,^ on the advan- tage of University education, as exemplified by "our great master," Littleton : "By this argument, logically drawn a divisione, it appeareth how necessary it is that our student should (as Littleton did) come from one of the Universities to the studie of the common law, where he may learne the liberall arts, and especially logick ; for that teacheth a man, not only by just argument to conclude the matter in ques- tion, but to discerne between truth and falsehood, and to use a good method in his studie, and probably to speak to 1 Ep. vi. — "A Complamt of the Mis-education of our Gentry." 2 He was a member of Trinity College, Cambridge, but left without taking any degree. "He always, in after life, spoke with gi'atitude and reverence of his Alma Mater. "—hord Campbell's "Lives of the Chief Justices," vol. i., p. 241-2. "Working Classes at the Bab. 63 any legal question, and is defined thus : Didlectica est sdentia probabtltter de quovis themate disserendi, whereby it appeareth how necessary it is for our student." ^ It needs not, however, the authority of either Littleton or Coke, to establish the proposition that a solid University edu- cation is the best possible introduction to the profession of the Bar. Who will doubt it ? And let any one disposed to do so, be pointed to the highest places in the profession, for generations — for ages — at this moment — and he will see them tenanted by the Sons of Cani and Isis, equally distin- guish at the Bar, and on the bench. " Foreigners often ask," said Mr. Canning, in one of his parliamentary speeches, " by what means an uninterrupted succession of men, qualified more or less eminently for the performance of united parliamentary and official duties, is secured ? First, I answer (with the prejudices, pei'haps, of Eton and Oxford), that we owe it to our system of public schools and universities. From these institutions is derived (in the language of the prayer of our collegiate churches), ' a due supply of men fitted to serve their country both in Church and State.' It is in the public schools and universi- ties that the youth of England are, by a discipline which shallow judgments have sometimes attempted to undervalue, prepared for the duties of public life. There are rare and splendid exceptions, to be sure ; but in my conscience I believe, that England would not be what she is, without her system of public education, and that no other country can become what England is, without the advantages of such a system." Perhaps it may be safely said that those who have distin- guished themselves in mathematics are coBteris pai'ibus, best adapted for the Bar : but, in fact, both classic and mathema- tician, have undergone such systematic discipline, and at- tained such a degree of intellectual superiority, as must dis- arm Law of its terrors. He who has been accustomed to wrestle with Newton and La Place, to wind his way through the mazes of algebraic calculation, and work out the pro- 1 Co. Litt..235, b. 64 Chaeaotbes, Peetensions, and Peospeots. fouiidest problems of a " rigid and infallible geometry," need not fear to be turned aside by the subtleties and complexities of law. Logic so masterly as his, what difficulties can with- stand, what multiplicity distract ? If, indeed, the bow have not been over-bent, — the mind and body paralysed by an excessive strain, — men such as these commence their legal career under the happiest auspices. There are, however, one or two matters worthy of their consideration. They will find that a vigorous and consummately trained intellect is not, alone, a passport to success. Business habits must be ac- quired — promptitude, decision, ducility ; the power of think- ing, amid the hubbub of the world, on the spur of the moment, without having to retire, in order to marshal the thoughts ; in a word, to use the language of Lord Bacon, there must be made " all possible endeavour to frame the mind to be pliant, and obedient to occasion.'''^ It may be, also, that the acquisi- tion of much practical information, necessary to fit men for dealing with affairs, has been altogether neglected. Then, again, let it be borne in mind, by one intending to apply himself to Court practice, that he must, with the utmost assiduity, cultivate the art of public speaking. " Reading may make a full man, and writing a correct one," says Lord Bacon, " but it is speaking only, that maketh a ready man." Let it, lastly, be remarked, that in quitting the brilliant scene of academic distinction, the swell of excitement and exulta- tion ought to be allowed to subside as quickly as possible : for with an Inn of Court commences that to which all that has gone before is preliminary and preparatory only : — the strug- gle with men — the real battle of life. The first man of his year at Oxford or Cambridge, must be content to propose to himself a considerable interval of severe labour, during which" he will be lost to the eye of public observation, and the voice of applause. Let him assui-e himself, however, that during this blank interval of disappearance from the surface, he is but diving beneath, anon to reappear with the pearl which he has been seeking. Thus only can he justify the high 1 " Advancement of Learning." Coming to the Bar from an Attorney's Office. 65 expectations of others, and realise the proud hopes he is justi- fied in cherishing. Secondly. Those who come to the Bar, after a novitiate passed in an attorney's ofEce, are of late years greatly increased in number ; and if possessed of certain great advantages in respect ot professional connexion, have also to contend with no inconsiderable disadvantages. " Making due allowance," says Sir William Blackstone,^ " for one or two shining exceptions, experience may teach us to foretel, that a lawyer educated to the Bar in subservience to attornies and solici- tors, will find he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know. If he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally dis-. traot and bewilder him : ita lex scripta est, is the utmost his knowledge will arrive at : he must never aspire to form, and seldom expect to comprehend any arguments drawn a priori, from the spirit of the laws, and the natural foundations of justice." The Commentator wrote this in 1753, when a state of things existed difierent from that in 1859 ; for the attor- nies and solicitors of the present day have acquired great credit, from their zealous and successful efforts to promote a scientific study of the law, by the younger members of their own body. Still, a lengthened experience of the roii- tine of an attorney's office, is apt, so to speak, to encrust the mind with technicalities, rather than inspire it with princi- ples. " By strictly adhering to form," observes the cele- brated Lord Kames, " without regarding substance, law, instead of a rational science, becomes a heap of subterfuges and inconveniences, which tend, sensibly, to corruptive mor- als of those who make the law their profession."* The know- ledge of such a tendency, ought surely to suggest commensu- rate efforts to counteract it, by the expansive study of princi- ples. Several years' sojourn in an attorney's office, is apt, moreover, to induce a neglect of that general knowledge, without which it is discreditable and dangerous to come to 1 1 Com. S2. 2 " Hist. Law Tr." p. 54. 66 Characters, Pretensions, and Prospects. the Bar. To remedy this serious defect, requires great judg- ment, as well as pains and perseverance. Let those about to take "the bold step from an attorney's office, to the Bar, never forget that they will have to associate and contend with many of the ablest and inost highly-educated men in the country. Let them not, however, expect to be encountered, by the best class of gentlemen at the Bar, otherwise than with frank- ness and friendship, so long as they exhibit gentlemanly con- duct and strict integrity and honour. A vulgar, selfish, and unscrupulous use of their great adventitious advantages, how- ever, justly entails galling contempt and dislike. It were as futile as unjust, to discountenance an attorney's clerk, or even an attorney himself, in yielding to the promptings of an honourable ambition, and trying his fortunes at the Bar. Its ranks at present contain numbers of this class who are a credit to it, — whose personal, social, and professional conduct may challenge keen scrutiny : and the possessors of such ad- vantages may surely reckon on that scrutiny, and regard it as neither unjustifiable nor unreasonable. Thirdly. Many come to the Bar, purposing to become practitionei-s, who belong to neither of the two sections into which this class is divided — they have had no University education, nor have belonged to the other branch of the pro- fession. Many of these, nevertheless, have reaped the great- est benefit from private education, and bring well-disciplined and powerful intellects to bear upon the study and practice of the profession ; while others have lost the advantage of early education, trying to atone for previous neglect, or compensate for the absence of opportunities, by self educa- tion. To do this while studying for the Bar, is certainly an arduous undertaking ; but what cannot be accomplished, by God's blessing on well-ordered industiy, and talent ? Some have quitted other professions or callings in life, into which they had been thrust reluctantly, or which, from subsequent- ly contracted dislike, or any other cause, they have resolved to quit, in order to try their fortune in a more ambitious walk of life. No man, in fact, is prevented from taking that step, who can persuade two Barristers to certify to the A Case for Caution. 67 Benchers of one of the Inns of Court, that "they believe him to be a gentleman of respectability, and a proper per- son to be admitted a member of the society." The Benchers must rely upon the personal honour and discretion of those who think fit thus to certify ; but often institute inquiries oF their own, when it may appear necessary. To such an extent, indeed, are carried this freedom and facility of ac- cess to the English Bar, that a complaint on this score is scarcely ever heard of ; but a number of disqualifying sit- uations of much higher order are carefully specified in the regulations of the various Inns, having for their object to secure as far as practicable, the purity and respectability of the Bar. Nothing, however, can be more undesirable in this matter, than to lay down any rule, excluding humble respectability. The Bar is believed at this moment to num- ber in its ranks many more then one individual, who strug- gled to it from a very obscure position, and are now deserv- edly prosperous and respected. There may be mentioned yet one case more — that of a youth whom parental weakness and indecision, or other un- avoidable causes, have kept in, idleness and uncertainty dur- ing a perilous interval between quitting school, and settling in a profession. This case, of course, excludes a University education ; unless, though late, its inestimable advantages may yet be available. Those interested in the welfare of a youth, under such circumstances, , should make it a matter of the gravest consideration, whether he possess such sobrie- ty of character, strength of purpose, and vigour of intellect — to say nothing of pecuniary resources and prospects — as will justify placing him in a position where he may unfor- tunately indulge in any taste he may have acquired for dis- sipation, or extravagance. To parents and friends of limited means, this suggestion, if slighted when offered, may chance to recur, fraught with the anxieties and disappointments of years. Thus, then, from all these quarters, is collected a miscel- laneous throng of candidates for admission to the Bar. Here is the confluence of the streams — or rather, the starting-post, whither— to borrow an illustration from the turf — horses 68 Chaeactees, Peetensions, and Peospects. from all parts, with all characters and pretensions, are col- lected for a great heat I "We, however, must turn, for a while, from the exciting and brilliant race-course, to the all- important scenes of the teaiotng. General Conduct. 69 CHAPTER Y, ON THE FORMATION OF A LEGAL CHARAOTEK : General Conduct. Mat it be presumed that, of those described in the fore- going chapter, a few, standing at the threshold of the Bar, capable of attaining high excellence, but conscious of habits unsettled, characters immature, and education incomplete, will listen with candour and attention, to a few suggestions designed as helps towards the formation of a legal char- acter ? To such only, and not to one presumptuously self sufficient in proportion to his ignorance and incapacity, and despising a hint, come from what quarter it may, — are the ensuing suggestions offered, as products of some experience and observation. Surely something more than aptitude for the acquisition, or the use, of law learning, is to be looked for in him who comes to the Bar, with proper feelings and objects; who aspires to become an honour to an honourable profession, filling so large a space in thfe public eye ; fraught with such heavy responsibilities as conservator of momentous social interests ; enabling a man to become a great blessing, or a great curse, to his fellow-creatures ; which — a very Hippo- menes to Atalanta — at once supplies its members with the most ennobling incentives to perseverance in the path of rectitude, and incessant and strong temptations to deviate from it ; which affords almost equal scope for the exercise of the best and basest qualities of human nature — for integrity and corruption, for generosity, fortitude, fidelity, as well as " envy, hatred, malice, and all uncharitableness ;" capricious, moreover, and often tantalising to its most worthy votaries. Well may the student, anxiously and distrustfully pondering all these things, exclaim, Wlio is suffieient for them I Let 70 Genebal Conduct. him not suppose tnat the above is an over-wrought picture of the profession which he has selected : for, to a moderately- thoughtful observer, every day's experience will serve but to corroborate the fidelity of the representation. Numerous as are, and have been, the ornaments of our profession, their numbers would probably have been doubled, had but a cor- rect and comprehensive estimate have been formed of the requirements of that profession at the outset. Had its can- didates but been cautioned against its peculiar besetting dan- gers, fewer might have deflected from the paths of honour and integrity, or been satisfied with a low tone of moral feel- ing, or a low standard of intellectual attainments. Many, aware that the Bar is a learned, forget that it is also a LiBEEAL profession. They seem to think it impossible to be lawyers, without being also mere lawyers : thus, when brought to the brink, hurrying down out of the translucent water, with reptile propensities, into the mire beneath — their congenial element. Such are the appetencies of infe- rior organisation. These are the true pettifoggers. Your mere lawyer is but a pettifogger, however disguised, and imaginarily dignified by, a wig and gown. Yes, truly — ■ "Pigmies are pigmies still, though perched on Alps!" Better things than these, are hoped of him who is perus- ing these lines I He will take special care not to lose sight of the duties he owes to society,' in those which he acknowl- edges to his profession— to himself; not to forget the heart, in cultivating the head ; not to sink the man, in the lawyer ! It is, indeed, said of the law, as of metaphysics and mathe- matics, that it tends to deaden the sensibilities ; but it is not so. It is the undue prosecution of all these pursuits, which is attended with such baneful efiiects. But when to an ex- clusive devotion to the practice of the law, is joined a grovel- ling and covetous character, who can wonder at the result ? Thus also it is with the mind. The eye which is able to "inspect a mite," is also able " to comprehend the heavens :" but a wiofe's is not so ; and some men- bring to the law a mole- • eyed mind. These, crawling oft-times from their under- ground darkness, the broad day-light blinds ; they are not Trial of Temper. 71 formed for coming out upon the open, bright, breezy emi- nences, and gazing at the diversified prospects of cultivation and refinement ; the glorious realms of literature, art, sci- ence, and philosophy, are for ever hid from them, — '" dark with excessive light." Far better things are expected, it is repeated, of him who reads these pages. He is not required to bring to the Bar dazzling abilities, which Providence intrusts to only a few, but given credit for a frank and manly character. Grant, even, that he has but moderate pretensions to intellect ; if, nevertheless, he be prudent, reasonable, and teachable, he still has in him, to use the language of an old writer, " the stuff whereof a right worthie lawyer may be made, so it be but rightlie worked up ;" and by beginning well, acting steadily on the assurance that slow work, at first, makes quick and sure work afterwards, he bids fair to overtake, and end better than many who at the first, easily distanced him. Let him, then, attend to the friendly and practical cautions •which follow. I. — No profession so severely tries the temper, as the Law — and that both in its study, and its practice. First, as to its study. The young student is perpetually called upon to exercise calmness and patience, though fretted by provoking difficulties and interruptions. He is apt to feel dispirited and disgusted when he finds, from time to time, how much he has utterly forgotten, that he thought he had most thoroughly learned — and the increasing difficulties of acquiring connected legal knowledge, and turning it to prac- tical account : all this moreover, not in abstract speculative studies, but in knowledge which he must promptly master, because his livelihood, and all his hopes of fame, are at stake. Do all that he can ; strain his faculties to the utter- most ; approach his subject by never so many different ways, and in all moods of mind, he will nevertheless be baffled after all ; and, on being assisted by his tutor, or possibly even by some junior fellow-student, be confounded to think that so obvious a clue as he is then supplied with, could have escaped him. How apt is the recurrence of such mor- tifications to beget a peevish, irritable, desponding humor, 72 ' General Conduce. disgusting the victim of an ill-regulated temper, -with him- self, his profession, and everybody about him 1 Now let him, from the first, calculate on the recurrence of such obstacles, that so he may rather overcome them, than suffer them to overcome him. "When you find, therefore, motions of resistance, awaken your courage the more, and know there is some goode that appeares not. Vain endeavours find no oppo- sition, All crosses imply a secret commodity : resolve then to will, because you begin not to will ; and rather oppose yourselfe, as Satan opposes you, or else you doe nothing."^ True— legal studies are difficult — often in appearance, insur- mountable : but what of that ? Difficulty is a friend ; the best friend of the student. Hear the great Burke. " Difficulty is a severe instructor, set over us by the supreme ordinance of a parental guardian and legislator, who knows us better than we know ourselves, as he loves us better, too. Pater ipse colendi haud fadlem esse viam voluit. He that wrestles with us strengthens our nerves, and sharpens our skill. Our antagonist is our helper. This amicable conflict with Difficulty, obliges us to an intimate acquaintance with our object, and compels us to consider- it in all its relations. It will not suffer us to be superficial. " The patient man," says Bishop Hall, " hath so conquered himselfe, that wrongs cannot conquer him ; and herein alone finds that victory consists in yielding. He is above nature, while he seems belowe himselfe. Hee trieth the sea after many shipwrecks, and beats still at that doore which he never saw opened. This man only can turue necessity into vertue, and put evill to good use. He is the surest friend, the latest and easiest enemy, the greatest conqueror, and so much more happy than others, by how much he could abide to be moue miserable."^ Truly, these are golden sentences, worthy to be ever borne about with the student, as having the virtues of an amulet J " When thou sittest to eat with a ruler," says the wise man, "consider diligently what is before thee: and put a knife to thy throat, if thou be a man given to appetite." And so, reverently adopting this language, when the student 1 Bishop Sail, "Epist. Deoad." T. Bp. viii. 2 " Characters of Virtues and Vices," b. i. Virtues of Patience. 73 sits down- to the study of the law, let him "put a knife to his throat, if he be a man given to " haste and impetuosity of temper. It will never do. 'Tis no use to fume and fidget, and try to enter into Law's secrets, as the angry housekeeper, who having got hold of the wrong key, pushes, shakes, and rattles it about in the lock, till both are broken and the door still unopened. Take time, eager student ;^ for there is a time for every thing, even in the law : a time for study, and a -time for relaxation. The clearest and strongest eyes, by too long exertion, become overstrained, and everything is misty and confused. So is it with the mind. Nil invita Minerva. Are you foiled, after hours, it may be, of patient thought and research ? Good student, be satisfied. You have already done much. Quit your books ; shut them up ; put on your hat and gloves ; sally forth in search of air, exercise, and amusement, wherewith to recreate your exhausted spirits After but a brief inter- val of changed thoughts, you will come back in cheerful mood ; your head cleared, your temper cooled, aind the dif- ficulty, lately so formidable, disappears iu a trice.^ " A man must use his bodyj" says Lord Hale, "as he would his horse, and his stomach ; not tire them at once, but rise with an appetite ;"■' and this, if it be only for temper's sake, 1 " There can be no study without, time," says South ; " and the mind must abide and dwell upon things, or bo always a stranger to the inside of them. There must be leisure, and a retirement, solitude, and a sequestration of a man's self from the noise and toil of the world."-^" Sermons," vol. ii. p. 347. '' Sir.Matthew Hale/' says Bishop Burnet, " was naturally a quick man ; yet, by much practice on himself, he subdued that to such a degree, that he would never run suddenly into any conclusion concerning any matter of importance. Pestina lknte was his beloved motto, which he ordered to be engraved on the head of his staff; and was often heard to say that he had observed many witty men run into great errors, because they did not give themselves time to think, but, the heat of imagination making some notions appear in good colors to them, they, without staying till that cooled, were violently led by the impulses it made on them ; whereas calm and slow men, who pass for dull, in the common estimation, could search after truth and find it out, as with more deliberation, so with more certainty." — " Life of Hale, pp. 86, 87. * Similar advice is given by Archbishop "WTiately, in his recent edition of Lord Bacon's Essays — " Of Studies." He says, also, " always trust, for the overcoming of a difficulty, not to long-eontinued study after you have once got bewildered, but to repeated trials at intervals." 3 Seward's "Anecdotes," vol. iv. p. 416. 74 General Conduct. to render the study of the law a pleasure, instead of a plague. II. Its practice, by these means will lose many asperities. The young practitioner must not fret at the delay of busi- ness : and, above all— not at this trying period only, but throughout his career — oh, let him " beware of Jealousy !" "Puisse, Messieurs," said M. Dupia aine, addressing his brethren of the Bar, in 1829, " cette emulation se develop- per de plus on plus au milieu de vous, mais, sans jamais alterer le sentiment de la confraternite I C'est assez vous dire qu'il faut se garder de I'envie: elle rend plus mal- heureux, encore ceux qui le prouvent, que ceux qui en sont I'objet. L'envie degrade I'envieux ; car il ne fonde son elevation que sur I'abaissement ou I'hmniliation d'autrui ; tandis que I'emulation, en laissant aux autres tout leur merite, nous inspire seulement le louable desir de faire encore mieux.'"^ He that brings to the law a disposition which pines and sickens at another's joy, an eye jaundiced, a heart blighted with envy, ^-however great may be his learning, however splendid his talents, will lead the life of a fiend. " The envious man," says Bishop Hall, " feeds on other's evils, and hath no disease but his neighbour's welfare. — -Finally, hee is an enemie to God's favours, if they fall beside himself ; the best nurse of ill-fame ; a man of the worst diet, for he con- sumes himself, and delights in pining ; a thorn- hedge cov- ered with nettles ; a peevish interpreter of good things ; and no other than a leane and pale carcase quickened with a fiend." The torments of the Inquisition will be light and tolerable to those which he must endure. " Invidus alterius macrescit rebus opimia Invidia Siouli non invenere tyranni Majus tormeiitunii"2 Oh, 'tis a pitiful, a despicable, a horrid propensity which some have, of going about sneering, detracting, toad-spitting, at their more successful brethren,—" uttering innuendoes 1 Disoours pron. a I'Ouyerture des .Conf. de la Bibliotheque des Avocats." —Themis, tome dixieme, p. 568. 2£[or. Bpist. I. U. 57. Emulation Distinguisheu from Eimr, 75 cursed" against merit, wherever it shows itself I Do you, reader, ever feel these infernal promptings ? Then your soul has been blighted, and is cankering within you. But you shall not be insulted by such a supposition. Strive, if such a strife be needful, to cultivate a manly, frank, and generous spirit ! Do not let your fellows, when they rejoice, rejoice at your cost ; joy rather with their joy, — give the cordial, cheering, sincere look, and ready hand of congratu- lation, to successful merit, wherever, whenever it appears I Consider, when you see a man rising steadily to eminence, "how severe, how protracted, in all probability, has been his struggle with Difficulty : how honourable he has been I what patient self-denial he has practised : what privation he has suffered : how little of the pleasures of life he has en- joyed ; the secret inroads which intense application and unremitting labour may have made upon his constitution : the invaluable assistance which, while himself neglected and disheartened, he has from time to time afforded to his in- ferior but more favored brethren I And if, in addition to this, he be characterised by manly modesty and good-nature —oh, reader, ought you not to sympathise with him — to be proud of your rising bkothek ? If, at such times, a sud- den excruciating twinge should be felt, then say with one of old, " down, down, devil," — for you may be sure that your greatest enemy is at work within. The victory you thus achieve will be really a glorious one, as the struggle is severe, though secret ; and a series of such victories will elevate you into a noble character 1 Emulation, the very life-spring of honourable exertion at the Bar, is thus accurately distinguished by Bishop Butler from the base quality of envy. "Emulation is merely the desire and hope of equality with, or superiority over, others, with whom we compare ourselves. To desire the attainment of this equality, or superiority, by the particular means of others being brought dawn to our level, or below it, is, I think, the distinct notion of envy. From whence it is easy to see, that the real end which the natural passion, emulation, and which the unlaw- ful one, envy, aim at, is the same : namely, that equality or 76 . General Conduct. superiority ; and consequently, that to do mischief is not the end of envy, but merely the means it makes use of to attain its end."^ But once more. You will sometimes meet with unrea- sonable men, among both brethren and clients, as well in public as in private. A cutting, unkind expression may fall, in a moment of irritation, even from the patient and generally placid Bench ; your leader, charged with the ex- citing cares of conducting the case, may treat you sharply — possibly even with rudeness ; and your client, broiling beneath, may grow testy and unreasonable. All there, un- doubtedly, are trying and provoking ; but not to him who bears about with him the talisman of an even and well-regulated temper! The author, some time ago, heard a judge in open court, utter a severe and petulant sarcasm against a popular counsel. The latter, however, ready as he was, uttered not a word in reply, but fixed upon the judge, for a moment, a steadfast unwavering look, — " A cold, rebukefiil eye." and then calmly proceeded with his argument, as if he had not been interrupted. He — the judge — the whole court, felt where the triumph was! Suppose, now, instead of ex- hibiting this admirable self-control, he had demeaned him- self by flippancy and importance towards even an impatient occupant of the Seat of Justice ! A considerate junior should make allowance for the pres- sure of anxiety on his senior, responsible for the conduct of the case, and even the more, as he perceives in that leader any deficiency of presence of mind and self-control. If a gentleman, no one will more highly appreciate such forbear- ance. A corresponding discretion is due to your client. The exigencies on which they consult you are sudden, and sometimes even alarming. They are subject to far more numerous and exquisite vexation at the hands of their own clients, than ever you can be, at the hands of yours — a fact too often quite lost sight of by counsel. When engaged 1 Sermons at the Rolls. Sermon I. " Upon Human Nature." Note. Dangers of Dissipation. 77 with your clients, be calm, patient, and collected ; bear in mind the advice given by Lord Bacon: "Give good hear- ing to those that give the first information in business, and rather direct them in the beginning, than inierrwpt them in the coTdinuance of their speeches; for he that is put out of his own order, will go forward and backward, and be more tedious, while he waits upon his memory, than he could have been if he had gone on in his own course ; but sometimes it is seen that the moderator is more troublesome than the actor." ^ Finally, a good temper is an inestimable advantage to a lawyer, old and young ; and whatever his position, it will carry him, as it were with rail-road ease, comfort, and rapid- ity, over all obstructions, to the end of his journey ; it will lengthen his life, as well as make it happy. A. bad one will strew his way throughout with thorns, — will convert every- one with whom he has to deal into an enemy, and himself, in short, into his greatest. "The thorns which 1 have reaped, are of the tree I planted. They have torn me, and I bleed 1" 2 III. The general conduct of the law-student is a matter of high concernment, depending upon individual character and tendencies, upon early association — upon discipline and edu- cation — or the want of them. It would be a childish and thankless task to dwell at large upon so trite a topic : never- theless, the author ventures to oflFer a few practical sugges- tions — the results of no inconsiderable observation. First. Our profession unavoidably offers dangerous facili- ties for DISSIPATION. The reader must bear to be reminded, that every year of his legal life will give him cause to re- joice at, or regret the want of, early sobriety of conduct, and consistency of character. "Phol" may exclaim a mettle- some youngster, " let me alone for that ! There are fish that never swim so well as in troubled waters ; and there are men who compensate for days of hard study, by nights of enjoy- ment I " True ; there may possibly be a few who succeed in their studies, and it may, to a certain extent, in their pro- fession, in spite of even systematic profligacy ; whose minds 1 Bacon's Essaya— " Of Dispatch." 2 Lord Byron. 78 General Conduct, have naturally, or have acquired, the power of settling at will upon any subject proposed to them ; whose iron con- stitutions appear impervious to the drippings of daily dis- sipation. But do they never hear of men breaking down, suddenly and unaccountably, in the very prime of life, — in the very moment of success? The seeds sown in a hard constitution, by debauchery, may be long in germinating, — but, sooner or later, the baleful crop makes its appearance ;. and then the heart aches with unavailing remorse, at the re- collections of early misconduct ; amid the gloom and misery of premature decay, the heart is left to its own bitterness, — destitute of hope for the future, or consolation from the past. To say nothing of moral or religious considerations, could the eye of the young law-student be brought to look steadily forward for a few years, and see how heavily his bodily and mental energies, should his eflForts be crowned with success, will be taxed in the discharge of his professional duties, how he would husband them 1 How he would " prepare for a rainy day," by doing justice early to his constitution ! As for one of the grosser besetments, intemperance, that is now becoming a vulgar vice ; a circumstance weighing more in the estimation of some, than all other considerations put together ! How can a man sit down hopefully to his studies, with his system disordered, his temples throbbing, his head swimming, his eyes strained and blood-shot with over- night excesses ? Is this the way to fit a student for his studies ? — to render them easy and attractive ? How can the mind, polluted and choked with associations derived from incessant scenes of riot and excess, " cleanse" itself " of that perilous stuff that weighs upon it? " Passing by the con- sequences of such conduct upon his own mind, with what mortal peril is it fraught to his character — his reputation ! Is it of consequence to the yoimg counsel to stand well with attorneys and solicitors, and others who are likely to put busi ness in his way ? Then let him bewai-e how he so fatally compromises himself, as to indulge in dissolute habits, which are soon known and noised abroad. Reports, of this sort, whether well or ill-grounded, are like water spilled on the ground — not to be gathered up again 1 It is of the last import- Decorous Dress and Demeanor — Sir Mat. Hale. 79 aiice to a ]:nv student to acquire early the character of a steady working man. There are undoubtedly persons intending to become law-students, of brisk, lively parts, who think other- wise ; who seem to consider it a pleasure and distinction to appear in dandified costume, to swagger about the streets and elsewhere puffing cigars, — to mix with dissipated companions, and indulge in debauchery, and this, " before settling down to work for life." Here shall be laid before persons thus disposed, one or two passages deserving to be weighed by those who would start well iu the path which led their foi-efathers in the law to honour and greatness. " Sir Matthew Hale, on com- mencing his studies,, discarding his gay clothing, assumed a plain and student-like habit."^ "The Lord Keeper Guildford's youthful habits," observes Roger North, "were never gay, or topping the mode, like other Inns of Court gentlemen, but always plain and clean, and showed somewhat of firmness or solidity beyond his age. His desire was rather not to btf seen at all, than to be marked by his dress. In these things, towards the other extreme was his aim : that is, not to be censured for a careless sloven, rather than to be commended for being well-dressed." "The student's habit, likewise," quoth old Phillips, " ought to be decent and neat, not gay and apish : nor may he spend any part of the time allotted for study, in a curious and antic dress, which, after all the pains bestowed, doth not become a man. Neither is it only an efieminate part, but is likewise a sure sign that they are frothy and empty, and accordingly resolved to put a good face upon the matter, and, peacock-like, to place their worth and excellency on their outside ; — of whom Seneca saith ' Nosti complures juvenes, vesti et coma nitidos, de capsula tolas, nihil ab illis spo7' averts forte, nihil solidum.'" ^ " Sir Matthew Hale," says Burnet, " was a great encourager of all young persons that he saw followed their books dili- 1 This, however, it must be owned, he oanied to the other extreme, " ex- hibiting the greatest negligence in his personal appearance ; insomuch that on one occasion he was impressed, as a fit person to serve his Majesty, and was released only in consequence of being recognized by some passing acquaint- ance." — Eoscoe's "Lives of English Lawyers." 2"Stu. Leg.Ra."pp.'40, 41. 80 General Conduot. gently ; to ■whom he used to give directions concerning the mode of their study, with a humanity and sweetness that wrought much on all that came near him ; and in a smiling way he would admonish them if he saw anything amiss in them ; particularly if they went too fine in their clothes, he would tell them it did not become their profession. He was not pleased to see students wear long periwigs, or attorneys go with swords ; so that such young men as would not be persuaded to part with those vanities, when they went to him, laid them aside, and went as plain as they could, to avoid the reproof which they knew they might otherwise expect." ^ Let the young law-student, above all, be prudent in the selection of his associates, pondering a passage to be found in the life of Sir Philip Sidney. " Algernon Sidney, in a letter to his son, says that in the whole of his life he never knew one man, of what condition soever, arrive at any degree of reputation in the world, who made choice of, or delighted in the company or conversa- tion of those who in their qualities were inferior, or in their parts not much superior, to himself." • And one scarcely less notable occurs in Roger North's Discourse : — " The fate of men's lives is too often determined to good or evil, by their company ; and as the choice of company is more nice and difficult, so are the hazards of young gentle- men's swinging into utter perdition greater ; but a student of the law hath more than ordinary reason to be curious in his conversation, and to get such as are of his own preten- sion, that is, to study and improvement ; and I will be bold to say that they shall improve one another by discourse, as much as all their other study without it could improve them." 2 No profession so richly repays early prudence in select- ing friends and associates, as the Bar. Those who enter it become, to a great extent, companions for life ; and of what real moment it is, bearing in mind this consideration, early 1 Biunet's " Life of Hale," pp. 98, 99. 3 Disc Stu. Law," p. 30. "Good SotJiEXY" AND ITS Snaees. 81 to cultivate the acquaintance of such only as appear likely to become friends of whom one may be hereafter proud, and not ashamed I How close, how charming the friend- ship cemented by years of sympathy and mutual assistance, amidst the chequered fortunes, the " ups and downs " of professional life ! For each to be able to say of the other, in long after years, " I loved his purity of character as much as I admired his ability and industry, and I rejoice with all my heart in his advancement, though he has so far outstripped me in the race l" Gay life, and gay companions, cannot be kept without money : and manj' are they who have purchased a few months' pleasure, as it is called, with future years of unut- terable vexation and inextricable embarrassment ! Would that some friendly adviser would whisper into the ear of the infatuated young spendthrift — what will you do (if unable to command the purse of a family Croesus), when you come tp commence business ? How are you to lay in a library ? To take chambers ? To keep clerk and laun- dress ? To purchase if practising under the Bar, your annual certificate ? To go sessions, or circuit ? To live, after all this ? And what if your health should fail you ? What cruel folly thus to embroil yourself at the very out- set ! Secondly. — If the student have access to " good society," let him beware of yielding to its insiduous encroachments upou his time and health. If he really work hard during the day, how can he stand, either physically or mentally, the excitement, and consequent exhaustion, of incessant dinner parties, balls, routs, soirees, concerts, fetes, and the opera ? He will, however, soon find this out for himself ; that he cannot long serve two masters, law and fashion ; that if he would become a good lawyer, he must drop the b that a visit to any of our courts is but too likely to show instances of its being totally i Tlie work mentioned in the text, was published three years after the last edition of the present one ; in which the author, had said that he deemed a knowledge of tliis Idnd so important, as to justify paying a few guineas for lessons from persons expert in these matters. Elocution, Oratory— Lord Mansfield. 129 disregarded. Mr. Hume tells us, that modern eloquence consists of " good sense, delivered in proper expressions :'"■{ and even adopting his perhaps contemptuously low standard, it cannot be reached without sedulous effort. It is a mis- chievous and derogatory saying in the mouths of some, mind what you have to say, and not how you say it :" which is really the plea of vulgarity and incompetency. It argues a total ignorance of human nature, and how it is to be approached by him who would persuade, convince, or excite. The matter-of-fact, technical character of modern litigation, undoubtedly tends to repress and paralyse oratory ; and the conviction that such is the case, seems almost helplessly acquiesced in. Were this to continue to, English forensic eloquence would indeed sink down to the dead level of hope- less mediocrity. Let the student, however, aim at higher things, and rest assured that occasions will never be wanting for the display of genuine eloquence. Let him bear in mind Lord Mansfield's systematic study of the art of oratory, and the splendid results to which it contributed, in the forum, and in the senate. Let him never tire in his efforts to acquire a becoming attitude and gesture, suitable to occasion, and pure and nervous language: avoiding every approach to slang, coarseness or frivolity, as he would escape becoming an odious object to every educated observer and listener. If conscious of any defect of pronunciation, especially in respect of certain aspirated and unaspirated words, let him entreat any kind friend to correct him, whenever a lapsus occurs, and be grateful for such salutary discipline. Vowels robbed of their " h " 's, or unduly burdened with them ; an "r" inserted between a final and initial vowelp and a "v" and "w" interchanged, — are dismal solecisms, eliciting an instantaneous glancing of eyes, and among inconsiderate people a smile, or even a titter 1 It is by no means agree- able to the members of a great profession like the Bar- numbering among them so many well-bred, accomplished, and learned men, to witness solecisms of this sort, calculated 1 " Essays," Of Eloquence. - " Amelia Anne," masquerading as " Amelia Eamne." 130 General Knowledge. to cast iio slight shade of ridicule on their order. — Let the /"youthful advocate maintajii the demeanor, as well as the spirit, of a gentleman in everything that he says or does, towards judges, juries, witnesses, and opponents ; aiming at that modest, courteous firmness, which is removed equally from sycophancy and insolence. The charming voice, the ever unruffled temper, the uniform courtesy, the preposses- sing and dignified person, deportment, and gesture of a FoUett, fall to the lot of few in a century ; but the mere meditation on some of these qualities, and on the immense success which they ensured that celebrated advocate, will be profitable to the young forensic aspirant. Many useful suggestions on the subject of elocution, or delivery, will be found in the fourth part of Archbishop Whately's " Elements of Ehetoric." The whole Vork, in fact, is worthy of perusal : dealing, as it does, with such topics as The Address to the Uuderstanding, with a view to produce conviction ; (Part I.): The Address to the Will, or Persuasion (Part II.); Perspicuity, Energy, and Elegance of Style (Part III.). It must be obvious to the very youngest and least educated person who meditates coming ■ to the Bar, that if he determine on doing so, the rest of his life will be occupied in reasoning — and that not merely in the solitude of his chamber, but in- public ; often against the subtlest, and acutest reasoners, and before judges equally formidable, and a watchful and learned auditory. This i-easoning, moreover, is of the closest kind, and on subjects the difficulty of which may disclose itself very unexpectedly, forming indeed an instance of that ."occasion sudden" and " j^ractice dangerous " spoken of by Lord Coke. How often has a young gentleman sudden- ly found that he had to confront one of the most dextrous logicians at the Bar, and made then the disconcerting dis- covery of his own imbecility ! This is a subject, however, of such capital importance as to have required a separate chapter for its satisfactory treatment. In the meantime the young law-student is recommended to familiarise himself early with not only the leading rules of logic, but its lead- ing terms of art, which are frequently used in the course The Leading Eules and Tekms. 131 of argument. Let him, if sceptical as to the necessity of this hint, ask himself, quietly, what do I understand by "the converse of a proposition ?" By induction? By an " abstract" and ''concrete term?" By a '■^ conimon term?" By a " categorical proposition ?" What is analysis, and what synthesis? Do the words " non distribution of the middle term " really convey to my mind any more distinct idea, than Ghronontliotonthologus f Let him be an honest cate- chist, however startled a datechumen. If at fault, he is detected in the friendly solitude of his own chamber, only, — at present. Whatever may be. man's capabilities for thought, it may almost be said that he could no more exert them without language, written or spoken,^ than animal life can be sus- tained without the atmosphere. The more profoundly lan- guage is pondered, the more wonderful it becomes, the eye of the scholar and philosopher : but to the lawyer it is of transcendant practical importance ; for by it, he has to per- suade, to couviiJce, to interpret, to create. First of all he must, to approach successfully the feelings and the judgment, speak correctly, forcibly, attractively ; but how can he fight without weapons ? How be eloquent, without the power of readily putting right words in the right places ; and how he can obtain that power, is surely a matter of great con- cernment to him. How, again, can he interpret the lan- guage which has been used by others, in remote or recent times, or contemporaneously, and on which depend the greatest public and jjrivate interests ; and beyond this, him- self create clearly defined rights and liabilities, which may indefinitely afi'ect present and future . interests public and private, — if he have not an adequate command of language ? Let one never so slightly acquainted with the nature of a lawyer's avocations, advert, for one moment, to the questions i"To be without language," says Dr. Brown, "is almost to be without thought." " A deaf-mute," says Archbishop Whately, " differs Irom a brute in the mental capability of employing language ; but can no more make use of that capabilitj'-, till in possession of some system of arbitrary general signs ^of language — than one bom blind, from contract, can make use of his capacity of seeing, till the cataract is removed." 132 GeneeaIj Knowledge. almost incessantly occupying every court of justice, with respect to the true construction of Acts of Parliament, con- teyances,_ wills, and other instruments of every description, down to a notice to quit, and the most casual scrawl of but a word or two, by an accomplished, or ignorant, writer : how hard, and o ten impossible, to distil a meaning out of an ob- scure, inconsistent, unintelligible statute, or will, the framers being mopes cormliil Let him borrow a volume of the " Queen's Bench " or " Ellis and-Blackburn's " Eeports — and look at the Index : -where, under the head " Construction " he will see abundant evidence of the truth of these observa- tions : the provoking difficulties and uncertainties perpetually arising out of undue collocation, and the heedless use of appa- rently the most insignificant particles; — "and" — "but" _" or" — "such" — " as" — "other" — "any"—" so " — " also" — "from"— "out"— "in" — "on"— "with"-;-"each," — lurk- ing, if one may so speak, like little snakes, in appearently the plainest paragraph, occasioning alike the sharpest exer- cise of logical acuteness and subtlety, and entailing, perhaps, ruinous litigation : for the instant that such a snake is seen, or if only suspected to be in existence, each disputing party acquires an interest in respect of it, which he will maintain to the very last moment of allowable litigation. Let the student, then, early become familiar with Words, and the proper col- location of them ; let him sedulously read the best authors — as Tillotson, Addison, Hume, and Paley of a former day, and a Herschel,' of our own — if he wish to acquire the command of a pure, a graceful, and pellucid diction ; let him fasten words into his memory, by the aid of etymology ; let him pay attention to his own composition, on the slightest occasions, aiming ever at simplicity, terseness, and distinctness.^ Thus he may hope to become an eloquent speaker ; a skilful drafts- man, and a sound and acute interpreter of any document sub- mitted for his consideration. Let him read with attention, in 1 Tost, General Knowledge. Ad finem. 2 -'TeU the law atndent to attend to Ch-ammar, if he wish to do anything in the higher walks of the law," said one, than whom no one living is more entitled to speak with authority; on the author's mentioning to him the sug- gestions in the text, and of which that eminent person cordially approved. History and its Adjuncts. 133 Locke's famous " Essay concerning the Human Understand- ing," his remarlfs on the imperfection and abuse of Words, and the Remedies ;^ and familiarise himself with the best extant Dictionary of the English language,— in itself a Library of Choice Saxon Literature*— that of Dr. Richard- son : where he will see, as it were, the pedigree of every word exhibited at length, and derived through a series of examples from our earliest writers, in chronological order,^ in itself a rich mine of reading and criticism. Two little tracts also, of Dr. Trench, entitled 'f On the Study of AVoi-ds," and '• English Past and Present," especially the former, will be found very interesting, and suggestive. It is not to be supposed that any come into the profession, so far destitute of the advantages of a liberal education, as to be unacquainted with at least the rudiments of Geography, Chronology, and History, — matters which, as Mr. Dunning observed, it is " not so much a credit to know, as a disgrace to be ignorant of." One conscious, however, of his defi- ciencies on this score, and of the little time left him for sup- plying them, must make a point of frequently exercising hirnself in these matters ; for which purpose he should by ' no means disdain the assistance to be derived from works of an unpretending elementary character, which are numer- ous and easily accessible. A very little occasional re-tracing, will suflSce to keep leading lineaments fresh and distinct. The attempt to read History, without the lights of Chronology and Geography, is childish. "They have justly been styled," says Sir Harris Nicolas, " the eyes of history, without the lights of which, all is chaos and uncertainty. Perhaps, however, a better simile would be, that dates are to history what the latitude and longitude are to riavigation — fixing the exact position of the objects to which they are applied."* The work from which these sentences are taken, is a small but invaluable one, " The 1 Book III. 00. 9, 10,>11. 2 " The only English one," truly observes Dr. Trench, " in which Etymology assumes the dignity of a science." Study of Words, 5th Edition, p. 211, note. 3 " Chronology of History," Pref. v.. vi. See, also, Locke on Education," §. 182. 134 General Knowledge. Chronology of History," a true "Handbook of History," containing authentic information of the greatest value, carefully condensed from a great variety of authentic sources, especially that splendid monument of learning, " L'Art' de verifier les Dates," the " Glossarium" of Du- cange, and " De Value's Dictionairre Eaisoune de Diplo- matique." This little work will soon be found so valuable, that iff will rarely be far out of the student's reach. " With- out denying the usefulness," says the late Dr. Arnold, in the third of his excellent Lectures' on Modern History, at the University of Oxford, of that plan-like knowledge of geog- r.aphy of which I was just now speaking, it cannot be doubted that a far deeper knowledge of it is required by him who would study History effectively j and the deeper knowledge becomes, far the easier is it to be remembered. For my own part I find it exceedingly difficult to remember the position of towns, when I have no other association with them than their situation relatively to each other. But let me once uuderstanU the real geography of a country, its organic structure, if I may so call it ; the form of its skel- . eton, that is, of its hills ; the magnitude and course of its veins and arteries, that is, of its streams and rivers : let me conceive of it as of a whole niade up of connected parts ; and then, the position of man's dwellings viewed in reference to these parts, becomes at once easily remembered, and lively and intelligible besides. I said that Geography held out one hand to Geology and Physiology, while she held out the other to History. . . . The whole character of a nation may be. influenced by its geology, and physical geography. But for the sake of its mere beauty and liveliness, if there were ho other consideration, it would be worth our while to acquire this richer view of. geography. Conceive, only, the difference between a ground-plan, and a picture 1" The student is recommended to procure one or all of three small Quarto Atlasses, respectively of Genei-al, Classical, and Physical Geography, by Mr. Keith Jghnstone, recently I4thed. 1849,p. 125. Knowledge of History Essential to the Lawyer. 135 published, 1 and containing the latest state of knowledge, especially in the case of Physical Geography. The National Atlas of Historical, Commercial, Political, and Physical Geography is a splendid one, but. necessarily expensive. • "The student of Politics, or public Law," says Lord Woodhouselee, "is presumed to have that previous acquaint- ance with History, which it is the object of a course of historical study to communicate ; and without such acquaintance, his study of Politics will be altogether idle and fruitless ;"^ and Sir William Jones, in his Prefatory Discourse to the speeches of Isseus, has some observations on the necessity of such knowledge to the law-student, so pertinent that they are here presented to the reader. " There is no branch of learning from which a student of the law may receive a more rational pleasure, or which seems more likely to prevent his being disgusted with the dry elements of a very complicated science, than the his- tory of the rules and ordinances by which nations eminent for wisdom, and illustrious in arts, have regulated their civil polity. Nor is this the only fruit which he may expect to reap, from a general knowledge of foreign laws, both ancient , and modern ; for whilst he indulges the liberal curiosity of a scholar, in examining the customs and institutions of men whose works have yielded him the highest delight, and whose actions have raised his admiration, he will feel the satisfaction of a patriot, in observing the preference due, in most instances, to the laws of his own country, above those of all other States. If his first prospects in life give him hopes of becoming a legislator, he may collect many useful hints for the improvement even of that fabric which his ancestors have erected, with infinite exertions of virtue and genius, but which, like all human systems, will ever advance nearer to perfection, and ever fall short of it. In the course of his inquiries, he will constantly observe a striking uni- formity among all nations, whatever seas and mountains may 1 Messrs. Blaokwoods, in 1853-5-7. Eacli may be had, ooloured, for a few Bhillings. . - Universal History/' vol. i. 136 General .Knowledge, separate them, or how many ages soever may have ehapsed between the periods of their existence, in those great and fundamental principles which, being clearly deducedjrom natural reason, are equally diffused over all mankind, and are not subject to alteration, by any change of place or time ; nor will he fail to mark as striking a diversity in those laws which, proceeding merely from positive institutions, are con- sequently as various as the wills and fancies of those who enact them." Before entering upon the details of a suggested course of Historical Study, it will be useful to give the student a cau- tion offered by an eminent and learned antiquarian and his- torian. Sir Francis Palgrave.^ "The usual method of distributing historical events, under the reigns of the sov- ereigns in which they occurred, has its advantages; but is, nevertheless, likely to encourage the idea, that the events of any one particular reign form a complete series, having little or no connection with those which precede, or with those which follow. History, however, is studied most profitably, when it is used as the exponent of the condition of mankind tracing the origin and progress of its most im- portant institutions, of education, of science, and the useful arts; of commerce, of the fine arts, and the political and domestic relation of the people : where, in short, it follows and clearly defines the progress of civilisation." As the basis of a sound and comprehensive course of his- ' torical study, may be taken Lord Woodhouselee's (Alexan- ander Eraser Tytler) "Universal History, from the begin- ning of the World, to the begimiing of the Eighteenth Century" — ending, in fact, with the death of Peter the Great, in the year 1724. " When the world," he says " is viewed at any period, either of ancient or of modern history, we generally observe one nation or empire predominant, to whom all the rest bear, 1 " The Lord and the Vassal ; an Exposition of thcf Feudal System." — Introd. Basis of a Scheme of Histoeioal Study. 137 as it were, an luiderpart, and to whose history we find, in general, that the principal events in other nations may be referred, from some natural connection. This predominant nation I propose to exhibit to view, as the Principal Object whose history, as being in reality the most important, is therefore to be more fully delineated; while the rest, as sub- ordinate, are brought into view only when they come to have an obvious connection with the principal. The antecedent history of such subordinate nations will then be traced in a short retrospect of their own annals. Such collateral views, which figure only as episodes, I shall endeavour so to regu- late, as that they shall have no hurtful effect in violating the unity of the principal piece." . . . . " Thus Ancient His- TOET, will admit of a perspicuous delineation by making our pi'iiicipal object of attention the predominant states of Greece and Rome, and incidentally touching on the most remarkable parts of the history of the subirdinate nations of antiquity, when connected with, or relative to, the prin- cipal object." .... "In the delineation of Modern His- tory, a similar plan will be pursued : the leading objects will be more various, and will more frequently change their place ; a nation, at one time the principal, may become for a while subordinate, and afterwards resume its rank as prin- cipal ; but uniformity of design will still characterise this moving picture. The attention will he always directed to the history of a predominant people ; and other nations will be incidentally noticed, only when there is a natural connection with the principal subject." These objects the author keeps steadily in view ; cai-rying his reader leisurely over the whole field of history, and familiarising him with its main boundaries, so as to enable him to trace the connection between the most remote his- toric events. The author appears to have bestowed uncom- mon pains on this work, which is an expansion of his " Ele- ments of History ;" comprehending his whole course of lectures on that subject, delivered by its author while Pro- fessor of Civil History, and Greek and Roman Antiquities, in the University of Edinburgh. It was, he tells us, the object of his "constant attention for thirty years, during 188 Genebal Knowledge. the greater part of which period it received an annual re- vision." It is written with accuracy and elegance of style ; and though its matter is necessarily given in a condensed form, its continuous perusal is very agreeable. It was pub- lished'^ in its present complete form in the year 1834, in six pocket volumes, and may be obtained for a small sum. In reading those portions relating to Eoman history, the student will bear in mind the great innovation, or rather revolution, inaugurated by the profound researches and speculations of Niebuhr, of which Lord Woodhouselee was probably not aware when finally revising his Histoiy. He will be found, however, speaking with the utmost caution concerning the untrustworthy and mythical character of early Eoman his- tory.2 An excellent historical Vade Mecum will be found in Keightley's " Outlines of History,"— a small 12mo. volume of 460 pages. It divides History into three parts : Ancient History, the Middle Ages, Modern History — the last clos- ing with the year 1815. The author's aim is to give a cor- rect, and as far as the limits would permit, a comprehensive epitome of the history of the world, which accuracy of nar- rative and chronology would render valuable as a book of reference, and, in which general views and reflections would remove the dryness inseparable from a mere enumeration of facts. This excellent performance' affords a bird's-eye view of the whole field of history ; and should be continually beside the student, solicitous to preserve clear and correct notions of so vast a subject.* Referring to it may be re- garded as revi.siting boundaries. 1 John Murray, Albemarle Street. 2 gee Book III, chap, ii, ad finem. 3 ". This work," says its learned and able author, in the last edition, pub- lished in 1850, " has been ooiTeoted from lime to time. It has now been sub- jected to a thorough revision ; and probably few, if any, errors of importance remain." ' 1 The following is a condensed account of Lord Mansfield's " Short Plan for reading Ancient History," first published in the " European Magazine " for 1791-2. Whatever feU from that great man, must have great interest in the eyes of a law student. " In the wide field of ancient history I have skipped over the rugged places, because I mean to lead you on cai'pet ground ; I have passed over the unprofi- table, because I would not give you the trouble of one step which does not HiSTOET OF THE PEOPLE, ANB THEIR EULEES. 139 In approaching the important province of Grecian and Roman historj', a remarli of Mr. Keightley, an excellent elementary writer on each, is worthy of' attention. "Man has always been the same ; and no portion of his story can be quite devoid of use and interest. That of ancient Greece and Rome is now far more useful than the greater part of modern history — for they were free, and their his- tory is that of the people, not of its rulers. The most im- portant and instructive history to us, is that of England : next, that of Greece and Rome ; and then, I would say, not that of the great kingdoms and empires, but of the Italian Republics of the middle ages. Why is Orieiital history in general so barren of instruction? Simply because.it is the history of Khalifs, Shahs, and Sultans — not of the people. If there ever were a subject for an accomplished and philosophical historian of the highest order, it is the history of Greece : regard being had to the special character and circumstances of the people, the scope and object of their institutions, and the nature of that evidence on which the 4iistorian must rely. Such an historian has been found, to the credit of our own age and country, in Mr. Grote. Com- lead diredtly to useful knowledge." His plan may be stated shortly thus : — oommenoo with Pleuiy, Du Choix de la Conduite des Etudes (5 26, Hiatoire ; $ 31, Ehetorique) ; Cicero de Orators, (lib. ii. §§ 51-63) ; De Legibus (lib. i. §J 4, 2); De Offioiis (lib. i. c. xii.-xiii.) ; Dr. Priestley's Chart, and Playfair's Chronological Tables, for the duration and extent of the Assyrian, Persian, , Grecian and Roman empires, and the Goths and Tandals ; various portions of Raleigh's History of the "World ; Xeno^hon; Thuoydides ; Toun-eil's Hist. Pref. to Demosthenes (book i. o. 1. J§ 2-8). "Over and over, the speeches of Demosthenes," in the original, or a translation ; Tertot's Roman Revolu- tion (books xi. xii. xiii. xiv. throughout) ; Sallust ; Montesquieu De la Grand, et de la Decad. des Remains (cc. il. & xi.) ; Cicero's fourteen speeches against Mark Antony ['the second, which cost him his life, is the only speech of length']. "When you have finished the above course, in the manner pro- posed, go over the whole a second time ; which, if you make yourselt master of it the first time, need not cost you many days. The next thing in order is, that you should have some notion of the history of the Roman Bmpu-e, from Julius Csesar to the end of the fifth century. — Read chap. xii. to xviii. of De la Grandeur des Rom. et de lem- Decadence — ' adding the chronology, and throwing on paper enlargements in particular parts, especially the grand epochas;' Bishop Meavie's Disc, on Univ.. Hist. Lit. do I'Bmpire Romain, 'to the end.' "This," he concludes, "will give you a small map, sufficient at present. Reflect on the Roman Imperial Govornmout ; military and tyranni- cal, like the Turkish and the Russian." 140 GrBNEEAL Knowledge. pletely immersed, so to speak, in his subject, he has made it, with all the devotion of ancient genius and determina- tion, the patient labour of a life. To an imagination sus- ceptible enough for sympathy with all that is beautiful, he unites a thoroughly independent, critical, und philosophical temper with a strength of purpose which have enabled him at length to accomplish his object. The result promises to be KTTJiia ig aiel. A long interval may elapse before we see, either here or on the Continent, an effort made to write another history of Greece, on the same scale, and with the same pretentions. An able and laborious scholar^ states, that his own studies have led him over the ground traversed by Mr. Grote ; and having carefully weighed his opinions, and tested his statements by a reference to his authorities, he has been in almost all cases, compelled to adopt his con- clusion, even when in opposition to generally received opin- ions and prejudices. Dr. Smith does not scruple to say even, that Mr. Grote's work forms as great an epoch in the study of the History of Greece, as Niebuhr's in that of Rome : and that his contributions to historical science,- are some of the most valuable that have been made with- in the present generation. One remark, howevei-, it is proper to make ; that this distinguished writer appears to be a disciple of M. Comte ; whose cardinal doctrine of " the three successive stages of the human mind in reference to scientific study, the Theological, the Metaphysi- cal, and the Positive," he adopts implicitly, as a key to the development of the Greek mind. In accordance with these mistaken and mischievous views, Mr. Grote is nowhere found referring to a Providential agency in human aflfairs, — discard- ing altogether the ' ' theological" spirit. His work extends to twelve volumes, which have just been completed, after ap- pearing, successively, since the year 1846. In his preface he modestly alludes to another valuable history of Greece, that by Dr. Connop Thirlwall, the Bishop of St. Davids's, of which a third edition, ia eight octavo volumes, has recently appeared. Mr. Grote emphatically and justly eulogises " the 1 Dr. W. Smith. De. Thielwall's Histoey— Minoe Histoeies. 141 learning, sagacity, and candour, which pervade the excel- lant work" of his predecessor ; adding, had it appearedearlier, Mr. Grole himself " would probably never have conceived the design of writing his own work." The Bishop's style is exact, dry, and hard, but he is completely master of his sub- ject, and his history is a credit to the scholarship of England, to which, it has been truly remarked by one qualified to judge, he has given a fresh impulse, and a new life- lu a recent volume of the " Edinburgh Review,"^ will be found an elabo-. rate comparison between the widely different estimates formed by Dr. Thirlwall and Mr. Grote, of the character of Alexander the great ; and in the " Quai'terly Review,"^ a very interesting account of the character of Socrates, as por- trayed by Mr. Grote. These elaborate and expensive histo- ries may not be conveniently within the student's reach ; and iu the elementary " History of Greece," by Dr. William Smith, above mentioned, he may find sufficient for his pre- sentpurpose. It is comprised in a single volume of 616 pages, and contains carefully written supplementary chapters, on Grecian Literature, and art. It is illustrated by many excelr lent wood-cuts ; and may be relied on as a sufficient state- ment of the " main facts of Grecian history, and of the lead- ing characteristics of the political institutions, literature, and art, of the people," in accordance with the most recent results at which the most modern scholars have arrived. It owes so much, as its writer franldy acknowledges, to Mr. Grote's researches, as to prepare the way, should inclination and opportunity concur, for subsequent systematic study of his great history. A similar relation to Dr. Thirlwall's History of Greece, exists in that of Dr. Schmitz, extending from the earliest times to the destruction of Corinth. It is professedly based, on that of Dr. Thirlwall's,— ^is excellently illustrated with maps and wood cuts ; and the fifth edition' contains important supplementary chapters on the Civilisation, Re- ligion, Literature, and Arts, of Ancient Greece. 1 Vol. cv. pp. 305—341. 2 Vol. Ixxxviil. pp. 41—69. 3 A. D. 1858. 142 General Knowledge. If, as suggested in a former chapter, a lawyer, waking up from half a century's sleep, and presenting himself in West- minster Hall, would rub his eyes, bewildered and astounded by the existing condition of our laws ; so would it be with the classical scholar, it may be said, so far as relates to Eoman history, after the appearance on the scene, of Niebuhr,i by whose bold and profoiind researches and speculations its early history has, in the estimation of the great majority of scholars, been revolutionised. The admirers of the story of Rome, as narrated in the pages of Livy, says one who appears implicitly to adopt his views, have frequently de- manded on what grounds the great German pretends to destroy the credit of that masterwork, and to rear an ideal fabric in its stead.? Availing himself of the labours of his predecessors, — continues the author in question, — endowed with equal critical accuracy, and greater power of combina- tion, he has endeavoured to vivify the notices of truth which have survived ; and by the most fortunate coincidence, new and rich sources of knowledge have been opened to him during the process of his inquiry'', by which he has been enabled to disperse the mist in many regions, which till then had been impervious.^ All previous modern writers of Roman history had dei'ived their information from Poly- bius, Diodorus Siculus, Livy, Dionysius of Halicarnassus (the contemporary of Livy) ; Plutarch, Appian, and Dion Cassius. These ancient authors were more critically and carefully examined by Niebuhr, than by any of his prede- cessors. Thus much for his use of the old sources of information : but the age in which he lived saw opened no fewer than five new sources, before inaccessible. First, a treatise of Lydus, De Magistratibus, containing extracts from Gaius : this was discovered in the library of a Turkish 1 He was bom in 1776, and died in 1831. 2 " Epitome of Mebuhr," by Travers Twiss, vol. 1. Introd. This work was written "to enable the student to determine for himself the degree of weight due to the researches of Niebuhr." In the yeai's 1852 and 1853, five Volumes of Lectures by Mebuhr were published, translated into English by Dr. Schmitz, whose '• History of Rome" will be mentioned hereafter. They are on Ancient History, Ethnography, and Geography, and display great learning. 3 "Epitome of Niebuhr," vol. i. Introd. Niebuhe's Sources of Information. . 143 villa, on the banks of the Bos»horus, in 1784, but was not published till 1812. Secondly, fragments of the lost nine books of Dionysius, found at Milan, in 1816, — comprising Roman history from u. c. 315", to u. 0. 485. Thirdly, the remarkable discovery, in the same year, by means of exca- vations in the Forum, of fragments of marble recognised as the corresponding parts of other portions of the consular and triumphal Fasti, commonly known as the Capitoline Tables, and which had been discovered accidentally during excava- tions, so long before as the years 1546 and 1563. The two lacMnoB which these new fragments fill up, are ft-om u. c. 294, to u. c. 365, — a period of great importance, from the estab- lishment of the Decemvirate ; and that of u. c. 350 to u. c. 356, an interval of equal interest, when the number of con- sular tribunes were increased to six, and plebians admitted to the consular tribunate. These fragments have served to determine several points of discrepancy between Livy and Diodo-rus, and even to correct important misstatements of Livy himself. Fourthly, in the self-same year, 1816, Nie- buhr himself discovered at Verona a palimpsest manu- script, containing the greater part of the lost Institutes of Oqius. Lastly, Angelo Mai discovered another palimpsest in the Vatican Library, of the lost treatise of Cicero, De Republica, — mainly following Polybius, in the chronicles of the Roman Kings, and throwing great light on the changes effected by the constitution of Servius, as well as by the legislation of the Decemvirs. These, says the ac- complished author of the " Epitome,"^ are the authorities on which Niebuhr relies, in quitting the beaten track of previous writers ; and it has been thought that the student would find it convenient, to have thus under his eye the machineiy, so to speak, by which the celebrated German is believed by profound scholars to have accomplished such great results. The first two volumes of Niebuhr's History were translated in 1831 arid 1832, by Archdeacon Hare, and Dr. Thirlwall, Bishop of St. David's : a third appeared in 1842, by Drs. William Smith, and Leonard Schmitz (the latter a pupil of 1 " Epitome of Mebuhr," vol. i. Introd. 144 General Knowledge. Niebuhr), bringing down th^ history to the First Punic "War. The fourth and fifth volumes, from the First Punic War to the death of Coustantine, were translated and pub- lished by Dr. Leonard Schmitz in the year 1844. The last consist of a series of Niebuhr's Lectures. The first twelve are introductory, and consist of an.examination of the sources of Eoman History, its credibility, authenticity, and literature. They give a complete summary of all that has ever been done for Eoman History, containing valuable remarks on both ancient and modern works ; and are designed to lay before the reader, the materials on which is based our knowledge of Eoman History, and instruct him about the manner in which he is to make use of them. The history of Niebuhr constitutes a great epoch, and landmark, in the treatment of Eoman history ; and almost all subsequent works on the subject, are either founded on his researches, or largely occupied with strictures on his conclusions, and reasons for rejecting, modifying, or doubting them. The main cause of the great multiplicity and wide divergence of existing opinions on this subject, says a recent learned writer,^ is the defective method which not only Niebuhr and his followers, but most of his opponents, have adopted. Instead of employing those tests of credibility which are consistently applied to modern history, they attempt to guide their judgments by indications of internal evidence ; and assume that the truth can be discovered by an occult faculty of historical divination. The consequence is, that ingenuity and labour can produce nothing but hypotliesis and conjectures, which may be supported by analogies, and sometimes appear specious and attractive, but can never rest on the solid foundation of proof. There will, therefore, be a series of such conjectural histories : each successive writer rejecting all, or some, of the guesses of his predecessors, and proposing some new hypothesis of his own.^ After an accurate statonipnt of the principles on which historical research should ii' ruiiducted' (the cardinal 1 See au Inquiry into the credibility of the Early Roman History," by Sir G. 0. Lewis, vol. i, lutrod. H S, 4, a.d. 1855. 2 "Inquiry," &c., p. 13, ante, p. 241 (note 2.) Vauditt of Niebuhr's CoKCLtJsrONS Challenged. 145 one being that historical, like judicial evidence, should be founded on the testimony of credible witnesses — that an his- torical account should be traced, by probable proofs, to the testimony of contemporaries) the able author last cited proceeds to state^ the object of his work to be, systematically to examine the external evidences of the early Roman his- tory, and how far the received accounts are supported by the testimony of credible witnesses : — applying the same rules of evidence, and tests, by which the reality of modern facts is determined : and then to examine the extant narrative, in order to try how far its internal character and com- position, and its internal attestation, agree. ^ After a patient and dispassionate examination of the subject in all its bearings, conducted rigorously on these prin- ciples, the author in question arrives at the conclusion, that with reference to the early Roman annals, — the first five centuries of them, — no reasonable certainty is at- tainable, with respect to the accounts which were preserved by the ancient writers, and have descended to us in their extant works.'' He justly adds, however, that we must guard ourselves against the error of supposing that the uncertainty of the early Roman history, furnishes a reason why the later history should not be cultivated. The obscu- rity of the ancient period, ought not to deter us from attempting to illustrate, and revive, the truly historical period. The " General Results of the Inquiry" are summed up in the concluding chapter ; in which also is instituted an able and instructive comparison between the corresponding periods of Grecian and Roman history, for the purpose of showing that the principles of examination, applicable to these diflferent sets of facts, are identical. Towards the close of the chapter occurs the following passage, worthy of being considered by the student, at the point of transition from Grecian to Roman history. " In some important respects, the history of Greece pos- sesses a superiority over the history of Rome. The Greeks first raised mankind out of the Oriental state of despotism 1 "Inquiry," . 192. The fall of the Western Empire forms a sort of natural dividing line between ancient and modern history ; the es- sential character of the latter being, in the happy language of Dr. Arnold, that it treats of national life still in exist- ence — the first acts of a gi'eat drama, now actually in the process of being represented, and of which the catastrophe is still future.^ How overwhelming the contrast, when the student turns from ancient to modern history 1 Instead of two countries claiming his attention, he finds several systems of countries, anv one of them offerinor a wide field of en- quir3\* First of all, there is the history of Europe ; then, quite distinct, oriental history ; thirdly, that of the Euro- pean colonies. When, however, we turn from the subjects of enquiry, to the sources of information, the difierence is greater still. In modern history, oui- work, limit it as we will, unavoidably grows in magnitude, and amidst the wide field, widening before us at every step, it becomes doubly important to gain certain principles of enquiry, lest we should be wandering about vaguely, like an ignorant man in an ill-arranged museum,^ seejng and wondering at much, but learning nothing. To know all history, actually, is impos- sible : our object should be, to possess the power of knowing any portion of history which we wish to learn, at a less cost of labour, and with far greater certainty of success, than belong to other men. By our careful study of some one period, we have learnt a method *of proceeding with all ; so that if we open any history, its facts at once fall into their proper places, indicating their causes, implying their conse- quences. We have gained, also, a measure of their value, teaching us what are productive, and what are barren ; what " Lectures," pp. 24, 25. ^ " Lectures," p. 64. 3 id. p. 122-3. MULTITUDINOUSNESS OF MODEKN HiSTORY. 151 will combine with other facts, and establish and illustrate a truth ; and what, in our present state of knowledge, are iso- lated, of no worth in themselves, and leading to nothing.^ It will be well for the student to bear in mind these gen*- eral observations, selected from the work of an accomplished and eminent teacher. Dr. Arnold ,"naniely, his " Introduc- tory Lectures on Modern History," already referred to. They abound in fruitful and practical suggestions, which cannot be entered into here, and all of them it is not to be expected that every independent enquirer will adopt, how- ever great his deference to manifest worth and ability. Only one further remark of his will be quoted, because it falls in with the recommendation contained in a former part of this chapter. ^'Keeping the general history which he has been reading, as his text, and getting from it the skeleton, in a manner, of the future figure, he must now break forth, ex- cursively, to the right and the left, collecting richness and fulness of knowledge from the most various sources."^ Another work of a cognate character, but more extensive and elaborate, is the " Lectures on Modern History, from the Irruption of the Northern Nations, to the close of the American Revolution," by the late celebrated William Smyth, Professor of Modern History in the University of Cambridge. These lectures, thirty-six in number, and which ceased in 1811, were delivered atthat University, and have contrib- uted to shape the character, and influence the opinions of men variously distinguished in every department of the state, for a long series of years. These lectures are elo- quent, and abound in valuable suggestions,^ generally char- acterised by candour and moderation ; and are so delightful to read, that it is not difficult to account for the reputation 1 " Lectures," pp. 89, 90. 3 Id. p. 70. 3 E. G. " This gives me another opporttmity (I cannot arail myself too often of such) to remind you that you must always identify yourselves with those who appear before you, from time to time, in the pages of history. This is the first point. And, that it is the general spirit and meaning of the whole of a constitutional question, not the minute detail of it, that you must always more particularly consider : this is the second point." — Tol. i. p. 160, Lect. VI. He proceeds to illustrate his meaning excellently. His first introductoiy let- ter will repay a thoughtful perusal. 152 General Knowledge. and influence which they secured to their author. There are, however, portions of them, requiring to be read with caution and reserve.^ ., At this period of his journey from ancient to modern his- tory, Gibbon's immortal ' ' History of the Decline and Fall of the Roman Empire," must have already cast its beams on the student's mind, like the rising sun. That sun has, it is true, its great black spot, in a false representation of the character and progress of Christianity ; but that spot may be regarded as lost in the splendour of the light and heat which the History casts on a dark chaos of human affairs, during upwards of twelve centuries of our race's most event- ful history — from the times of the Antonines, to the cap- ture, by the Turks, of Constantinople, in the year 1453. Thus eloquently speak two of his most distinguished modern editors : "The literature of Europe," says Dean Milman, "offers no substitute for ' The Decline and Fall of the Roman Em- pire.' It has obtained undisputed possession, as rightful occupant, of the vast period which it comprehends. How- ever some subjects which it embraces may have undergone more complete investigation, on. the general view of the whole period, this histoiy is the sole undisputed authority to which all defer, and from which few appeal to the orig- inal writers, or to more modern compilers. The inherent interest of the subject ; the inexhaustible labour employed upon it ; the immense condensation of matter ; the lumin- ous aiTangement ; the general accuracy ; the style, which, however monotonous from its uniform stateliness, and some- times wearisome from its elaborate art, is throughout vigor- ous, animated, often picturesque, always commands attention, always conveys its meaning with emphatic energy, describes with singular breadth and fidelity, and generalises with unrivalled felicity of expression ; — all these high qualifica- 1 " The following lectures," he says in his Advertisement, " were drawn up to be delivered to a youthful audience, at an English University, voluntarily assembled. The reader is requested never to lose sight of this particular cir- cumstance — ^they were to be listened to, not read. , They are now published, in the hope that they may be useful to others at a similar period of life." Gdizot on the Decline of the Eoman Empiee. 153 tions have secured, and seem likely to secure, its permanent place in historic literature. " The vast design of Gibbon, the magnificent whole into which he has ciist the decay and ruin of the ancient civilisa- tion, and the formation and birth of the new order of things, will of itself, independently of the laborious execution of his immense plan, i-ender 'the' Decline and Fall of the Ro- man Empire,' an unapproachable subject to the future his- torian." " The gradual decline," says M. Gui^ot, " of the most ex- traordinary dominion which has ever invaded and oppressed the world ; the fall of that immense empire, erected on the ruins of so many kingdoms, republics, and states, both bar- barous and civilised, and forming in its turn, by its dis- memberment, a multitude of states, republics, and kingdoms ; the annihilation of the religions of Greece and Rome ; the birth and the progress of the two new religions which have shared the most beautiful regions of the earth ; the decrepi- tude of the ancient world ; the spectacle of its expiring glory, and degenerate manners ; the infancy of the modern world, the picture of its first progress, of the new direction given to the mind afid character of man ; — such a subject must necessarily fix the attention and excite the interest of men ; who cannot behold with indifi'erence those memorable epochs, during which, in the fine language of Corneille, " TJn grand destia oommenee, im grand destin s'aoheve." It must suffice here, to call attention to the recent editioo of " The Decline and Fall," carefully edited by Dr. William Smith, which, in addition to his own notes, is enriched with those of Dean Milman, M. Guizot, and M. Wenek, from, their respective English, French, and German^ editions : for in his preface, M. Guizot states that the "Book is con- stantly cited as an authority in the most enlightened coun- tries of Europe-^in France and Germany, as well as in England." This edition, published in 1854, is in eight octavo volumes, handsomely printed ; and in it, for the first 1 iTiebuhi says that " Gibbon's work will never be excelled." 154 General Knowledge, time, all Gibbon's multitudinous references to ancient writ- ers, have been verified afresh, with side-by-side bracketted references to the books and chapters of the best modern edi- tions. Such a work, nevertheless, in even this best form, may be contemplated, from its vast extent, with dismay, by the law student. The indefatigable editor of the edition just mentioned, however, once more is at hand to render assistance to a student thus oppressed ; and presents him with a handsome volume of 667 close and neatly printed pages, entitled, "The Student's Gibbon: The History of the Decline and Fall of the Roman Empire, abridged ; in- corporating the Researches of recent Commentators." These incorporations are taken from those of Dr. Smith himself, Milman, and Guizot, in the larger edition : his laborious preparation of which must have peculiarly fitted him for the task of framing the abridgment now recommended to the student. The selection appears to. have been 'made with much discretion ;^ and it should be added that the work is studded with beautiful wood-engravings. As the subversion of the Western Empire is manifestly the natural termination of ancient history, so the establishment of the Franks in Gaul, says Mr. Hallam, appears the most convenient epoch for the commencement of the period designated as that of the Middle Ages. The invasion of Naples by Charles VIII., was the event which first engaged the principal states of Europe, in those relations of alliance or hostility which may be deduced to the present day ; and is the point at which every man, who traces backward its political history, wilt be obliged to pause. It furnishes a determinate epoch in the annals of Italy and France ; and nearly coincides with events which naturally terminate the history of the Middle Ages in other countries. Mr. Hallam's " View of the State of Europe during the Middle Ages," is 1 Dr. Smith has judged wisely, in determining to omit entirely Gibbon's objectionable dissertation on the causes of the spread of Christianity; while he dwells at some length on the conduct of the Koman government towards the early Christians, the legal establishment of Christianity, and other events producing the temporal power of the popes, and the restoration of the Roman Empire in the West. Era of Charles V.— Eobertson. 155 so universally known, and so thoroughly established, that nothing more need here be said of it, than that it has been recently republished in three small and well printed 12mo. volumes, at a reasonable price. This is a work indispensable to the historical student, Eecurring now, for a moment, to the basis of the suggested course, assumed to have been laid in Lord Woodhouselee's Universal History, the student is recommended to refer to the last chapter, containing a luminous summary of the leading events in the History which it closes ; and he will thus be brought, by an experienced guide, to the middle of the six- teenth century [a. d. 1558]. "With Charles V. commenced a new era in political history: when all European states were, if one may so speak, conglomerated : so that each holding a determinate station, the operations of one are so felt by all, as to influence their councils, and regulate their measures. It was in his reign, says Dr. Robertson, writing nearly a century ago, " that the difierent kingdoms of Europe, which in former times seemed frequently to act as if they had been single and disjointed, became so thoroughly acquainted, and so intimately connected with each other, as to form one great political system, in which each took a station wherein it has remained since that time, with less variation than could have been expected, after the events of two active centuries." — But for the assistance of Professor Smyth, it would have been difficult to afford the student any adequate assistance, through the complicated mazes of European history, during three centuries which have elapsed between a. d. 1558 and a. d. 1858. Down to the year of American Independence, a. d. 1783, the student will follow the leading of the accomplished Professor. With the year 1789, the inauguration of the French Eevolution, commences Sir Archibald Alison's "History qf Europe" from that period, to the Restoration of the Bourbons in 1815 : undoubtedly one of the most important additions to historical literature, seen for many years. In style, per- haps, somewhat too diffuse, it nevertheless constitutes a vast storehouse of authentic facts, during the dazzling and terri- ble quarter of a century to which it relates. To exemplary 156 General Knowledge, candour, consideration, and anxiety to secure accuracy, the writer adds sustained and vivid descriptive power of a high order. Of this now standard work, three different kinds of editions are printed : a library edition, with portraits, in fourteen large octavo volumes ; one at about half the price, in twenty crown octavo volumes ; and a third, in twelve small volumes, closely printed, at little more than a quarter of the price charged for the library edition. If even this last should be deemed by the student too extensive, a masterly ' ' Epitome " of the whole history, in one moderate post octavo volume, has been published, at a very reasonable price. Sir Archibald Alison has been for several years engaged on a continuation of his History, from the year 1815 to 1852, and has already published seven volumes, bringing the reader down to the year 1848, the eighth, and final one, being on the eve of appearance. By the time, however, that the student shall have advanced thus far, — though even by the aid, alone, of the compendia above presented to his notice, — he may reasonably be sup- posed capable of selecting his own course of historical read- ing, as opportunity . and inclination may prompt. He is recommended, however, not to lose sight of Lord Wood- houselee's Universal History, but to expand his studies, with method and moderation ; preserving, by repeated reference and perusal, a due connection between the parts, and the whole, of universal history. It may be, that for various reasons, the law student feels disposed to reduce his historical studies, to the very nar- rowest compass. In that event, three small volumes may be recommended to him, one of which has been already mentioned: (1.) KeigMley's Outlines of Histori/. (2.) A Manual of Ancient History/, from the remotest times to the overthrow of the Western Empire in a. d. 47G, by Dr. Schmitz, published in 1855 ; a work of great merit, well arranged, comprehensive, vigorously written, and founded on the latest state of knowledge. (3.) The Student's Manual of Modern History, by Dr. W. C. Taylor, of which a sixth Ethnology. 157 edition appeared in the year 1856, with a. supplementary chapter bringing down the history to the close of the Eus- siari war, by the Treaty of Peace signed at Paris on the 30th of March, 1856.1 Before quitting this subject allusion may be made to Ethnology, as well worthy of the systematic culture which it is receiving, and consequently of the attention of an en- lightened historical student. This science, for it has become such, has for its object to investigate the localisation, affini- ties, and distinctive qualities, of the various races of men: and it has been well said'' to be a circumstance rather satis- factory than singular, that the observations made, and facts collected, with true philosophic indijSercnce to the conclu- sions to which they might tend, all lead to the belief, that mankind have sprung from one original pair. At this con- clusion, on grounds merely philosophical, Cuvier and Hum- boldt have both ari-ived : and it may be regarded as satis- factory, as re-assuring some very worthy people who discoun- tenance philosophical investigations, because they entertain narrow-minded apprehensions that Revelation will not be able to take care of itself.* It may have been observed, that little or no mention has hitherto been made of English history, except, of course, so far as it forms part of a course of general history.- It is a subject, howevei;, of such special importance to a law student, that it has been reserved for a separate chapter. Having obtained a knowledge of the Facts of history, the next object should be to deduce from them those great lessons of practical wisdom, for which alone all authentic history, however entertaining, is •really valuable. Hence the study of Political Philosophy. In his eloquent Prefaratory Discourse " On the Objects, 1 An instance of too -easy aoquiesoenoe in generally received historical facts, may be seen, however, in Dr. Cook's implicit adoption of the now universally exploded error, as to the oblivion of the civil law, till resuscitated by the alleged discovery -of a copy of the Pandects at Amalfi, in the 12th century. Vide post. 2 " Quarterly Eeview," vol. Ixxxiv, p. 411. 3 Id. ib. It may be added, that the kindred science of philology points to the same result. 158 General Knowledge. Pleasures, and Advantages of Political Science," forming the Introduction to his "Political Philosophy," Lord Brougham justly observes that the better and more correct division of the whole of Moral Philosophy is, to consider it in two points of view : as it treats of man in his individual capacity ; and of man as a member of society. The former may be properly called Moral or Ethical, and the latter, Political Philosophy. It is with this latter that the student is now concerned : and he may regard it under a two-fold aspect, — Domestic Policy; and Foreign, or International Policy. The former comprises the nature of our own domestic arrangements, as a State ; the latter, the intercourse of different States ; their practical relations; the principles regulating their demeanour towards one'another. Domestic policy is concerned with the science of Government. The different forms of Government; the distribution, in each state, of the power by which its people are ruled ; the arrangements resulting from these diversities ; their influence on the security, improvement, comfort, and happiness of the people in each ; these are the facts, from which must be drawn the principles, constituting the science of Government. This science of Government, forming the first great subdivision of Domestic Policy, comprehends, first, the principles relating to the establishment of all government, generally, and on which depend the establish- ment of the social relation, — the formation of any connection between the ruler and the people : secondly, the principles relating to the distribution of power in different states ; in other words, the different constitutions, or forms of govern- ment, in different countries. The other great subdivision of Domestic Polity, equally important with the former, and intimately connected, yet easily distinguishable from it, is Economics, or Political Economy ; relating to the management of a nation's domes- tic affairs, as private economy to the affairs of a family. Political Economy, therefore, relates to the wealth, the population, and the education of the people, and the conduct of the Government in respect of these particulars. The accumulation and distribution of wealth, in all its branches ; including domestic, colonial, and foreign commerce ; the Political Economy, 159 principles regulating the maintenance, increase, or diminu- tion of population ; the religious and civil education of the people ; the provisions for securing the due administration of justice and, as subservient to these, the maintenance of police ; the measures required for supporting the public ex- penditure; that is, the financial system; the precautions necessary for the public defence ; that is, the military sys- tem ; and generally all institutions, the objects of which are of a public nature : all these fall within the province of Political Economy. The other main branch of Political Philosophy considers nations as individuals, forming a portion of a larger com- munity — a. community of nations — the whole Family of Man ; and treats of the principles which ought to govern them in mutal intercourse. The views which form the foundation of Foreign or International Policy, are evidently, from their nature, a refinement introduced in a late period of society : because these views assume that communities, each of which is supreme, and can have no superior on earth, are ■willing to regard themselves as subject to certain rules in their, intercourse with other nations : rules which no common chief can enforce, but the observance of which is rendered expedient by the interests of all, and which are therefore regarded as . binding. These rules are those of either sound policy, or jus- tice : a distinction suggesting two subdivisions of this second branch of Political Philosophy. First, Foreign Policy : consisting of the principles which should guide nations in their mutual intercourse in peace and war : in the negotiation of treaties ; the formation of alliances, offensive and defen- sive ; the combination of weak states to resist stronger ones ; the precautions necessary to prevent a too great acquisition of strength by any one state, to the derangement of what is called, the balance of power. Secondly, The law of nations, or international law, treats of the eights of nations, admitted to belong to each, in peace and war, by common consent, because the common interests of humanity, the prevention of war, and the mitigation of its evils demjand such general understanding and consent. The true description of this law is, that it forms the code by which the great community 160 Gbneeal Knowledge, of nations are, or ought to be, governed, in their conduct to one another, as Municipal Law is the code by which the in- dividual members of any particular community are governed in their intercourse with one another.^ " The knowledge of political science, which teaches the people their true interests, can alone rescue them from the error of ages ; restore public virtue to the pedestal which successful vice has so long usurped, and secure on a lasting foundation the peace and the happiness of the world." With this sentence, the noble writer concludes his Prelimi- nary Dissertation; several passages at the commencement of it decisively indicating, that he by no means intended to place the cultivation of political science before, or on a level with, what is of infinitely higher and eternal moment, the cultivation by a people of religion and virtue. The following excellent observation occurs towards the middle of the same dissertation : "How nearly does the ad- vantage resulting from the examination of foreign constitu- tions, resemble the benefits derived to human physiology, from studying the anatomy of the lower animals 1 This branch of political science may. be justly tei-med, the com- parative Anatomy of Government : and,— if studied with a constant regard to general principles of policy, their illus- tration from the structure and functions of various systems of polity, and the modifications they undergo by the diver- sities of each, — this science is calculated to throw useful light on the grand subject of Political Philosophy, and lend us valuable improvement to the knowledge of our own sys- tem, exactly as the comparative anatomy of the body extends our knowledge of physiology, and improves our acquaintance with the human frame. "^ The foregoing considerations point out so clearly the in- timate and essential relation between History and political philosophy, — that in fact, between means, and end — as to 1 "It is a very common error," says Lord Brougham, "to confound with this branch of law many of the general principles of jurisprudence applicable to aU nations, and to term them a portion of the Law of Ifations." — "Pol. Phil.' vol. i. pp. 10, 11. 'i "Pol. Phil.," vol. i., p. 14. Palet, Hume, Whewell, Austin. 161 render superfluous auy exhortation to study the latter. The importance of authentic history, and of an accurate and extensive knowledge of its true import and significance, are now self-evident : and all that can be necessary, is to point out briefly the quarters where the required information on the latter topics, may be obtained. The most elementary account of political philosophy, is the well. known Sixth Book of Paley's Moral and Political Philosophy, entitled '^Elements of Political Knowledge," in twelve Chapters. His treatment of the subject cannot be regarded, especially in our day, as scientific or systematic, or as anything more than a kind of appendix to the Moral Philosophy. He gives only the principles of government, in their most general form, making uo application of them to any other constitution than our own, and deriving no illus- tration of them from the constitutions of other countries. The student may be referred to seven of Mr. Hume's " Essays " — the third to the ninth iiiclusive,"viz., " That poli- tics may be reduced to a science ; On the just principles of Government ; On the origin of Government ; On the Inde- pendency of Parliament ; "Whether the British Government inclines more to Absolute Monarchy, or a Republic ; Of Parties in General ; Of the Parties of Great Britian."^ The last Chapter of the Fourth, and the whole of the Fifth and Sixth Books of Dr. Whewell's " Elements of Morality, including Polity," are devoted to Political Philo- sophy, which is treated elaborately and systematically. He opposes many of the views advanced by Dr. Paley in his Sixth Book, as well as in important portions of the preced- ing Books, devoted to the consideration of moral philosophy. In the Sixth of Mr. Austin's Lectures, published under the title of " The Province of Jurisprudence Determined " — will be found (pp. 197-391) one of the most masterly analytical disquisitions in the English language, on the sub- ject of " SovBEEiGNTY," the Correlative cxprcssion "Sub- jection," and the inseparably connected expression "Inbe- 1 Attention is called to the Ifotes appended by Mr. Hume to the text of the above Essays. 11 162 General Knowledge. PENDENT POLITICAL SOCIETY." He stroDgly opposes the hypothesis of an original contract, and implicitly adopts the Principle of Utility, which must be carefully borne in mind by the student : who will find in Dr. Whewell, its most powerful opponent. Lastly ; The Treatise of Lord Brougham, entitled " Polit- ical Philosophy " is in three octavo volumes. It is devoted to the first great branch of Political Philosophy, and by far the •most important,^ the Theory — the Structure — of Gov- ernment, and its application to the constitutions which have been, at any time, framed by human skill, for the direction of human affairs. It minutely considers all the great prin- ciples whichhave guided men's conduct, in the systems of polity founded by them, at any period, in the history of the world ; weighing the merits and faults, in much detail, of between forty and fifty forms of , government, in ancient and modern times. " They who have most profoundly studied," he says, "the principle^ of Government, who have most learnedly examined its records in the history of human policy, and whose knowledge of existing institutions in for- eign countries is most extensive, will be the most candid judges of my labours, because they are best able to understand the great difficulties of such an enterprise.^ Such a work, from one of this distinguished person's knowledge, experi- ence of public affairs, and practised intellectual power, can- not but be regarded as of great public interest and impor- tance. Though he by no means disguises the inclination of his own political opinions, he certainly is entitled to the eredit which he claims, of having eschewed party bias.* It is a work, however, to be read with caution. There are portions of it, to which Lord Brougham himself would now scarcely give the sanction of his authority.'' Thus far concerning the structure of Government. Its func- 1 Vol. iii. p. 404. 2 "Pol. Phil.," vol. ui., p. 404. 3 id. p. 405. i An elaborate examination of this work may he seen in the " Bdinbm-gh Eeview " for January, 1845 (vol. pp, Ixxxi, 1-46). The writer of the article is familiar with his subject, and differs from Lord Brougham in several impor- tant particulars, Possibly the reader may himself differ as much from the reviewer. Political Economy. 163 tions are discussed under the head of Political Economy. " Of statesmen and legislators," says Professor Smyth, " His- tory and Political Economy are the professional studies, and are never to cease." In one of his " Introductory Lectures on Political Economy," Archbishop "Whately speaks thus, while discussing the question " whether Political Economy is to be regarded as a part of general education ?" " The most difficult questions in Political Economy are every day discussed with the most unhesitating confidence, not merely by empty pretenders to science — for that takes place, and must be expected, in all subjects — but by persons not only ignorant, but professedly ignorant, and designing to remain so, of the whole subject ; neither having, nor pretending to have, nor wishing for, any fixed principles by which to regulate their judgment on each point. Questions .... belonging to political economy, many of them among the most difficult, and in which there is the greatest diversity of opinion, are debated perpetually, not merely at public meetings,, but in the course of conversation ; and decisions of them boldly pronounced, by many who utterly disclaim having turned their attention to Political Economy." Leaving these remarks to be considered by those whom they may concern ; acknowledging the interest and importance of the subject to which they relate ; the numerous points at which they touch law, and the administration of it ; and" the consequent advantage, if not necessity, of Lawyers, especially those aspiring to seats in the legislature, being acquainted with at least its leading doctrines ; — we are told the disheartening truth, by the Archbishop, that whereas " the principal terms of Political Economy are only seven, Value; Wealth; Labour; Capital; Rent: Wages; Profits ; — hardly one of them has any settled invariable meaning, and their ambiguities are perpetually overlooked ! "^ Of the many works on Political Economy, with the names of which the student may be familiar, only two will be here mentioned, and each of the highest order. (1). Adam Smith's WeaUh of Nations: of which Sir 1 See Whately's "Logic," Append. I. pp. 230-239, ed. 1855, where they are given at length. 164 General Knowledge. James Mackintosh has declared that it " was perhaps the only book which produced an immediate, general, and irrevocable change in some of the most important parts of the legislation o£ civilised states."' Independently of all other considerations, the thoughtful law student will find that this delightful and profoundly instructive work reflects light on many important portions of English history and law. . Mr. M'CuUoch's is the only annotated edition ; and his notes and Supplementary Dissertations greatly enhance the value of the work." (2). Elements of Political Economy, with some of their Applications to Social Philosophy, by John Stuart Mill, in two" volumes, octavo, Of which a second edition was pub- lished recently, at once took, and retains, a very high posi- tion, if not the highest, among those of modern writers on Political Economy, as an elaborate and strictly systematic investigation of its principles. It is divided into five Books : treating of (I.) Production ; (II.) Distribution ; (III.) Exchange ; (IV.) Influence of the Progress of Society on Production and Distribution ; (V.) Of the Influence of Government. " No existing Treatise on Political Economy," he says, " contains the latest improvements on the theory of the subject. Many new ideas, and applications of ideas, have been elicited by the discussions of the last few years ; 'and there seems reason that the field of Political Economy should be resurveyed, in its whole extent, if only for the purpose of incorporating the results of these speculations, and bringing them into harmony with the principles pre- viously laid down by the be.st thinkers Political Economy," he continues, after paying homage to 1 "Encyc. Brit." p. 358, (7th ed.) 2 Mr. M'CttUoch'a " Piinoiples of Political Boonomy, . -with some enquiries respepting their AppKoation, and a Sketch of the Rise and Progress of the Science," (1 vol. 8vo. 4th ed. (1849), is also a work of great reputation, as a standard treatise, A second work of his, entitled " The Literature of Polit- ical Economy" (1845), Consists of a critical account of all the works which from time to time have contributed towards the formation of that science ; and a thu-d consists of "Treatises and Essays on subjects ooimected with Boonomical Policy; with biographical sketches of Quesnay, Adam Smith and Eicai-do." (1 vol. 8vo. ' 1853.) Importance of Laws Regulating Peopeett. 165 Adam Smith, " properly so called, has grown up almost from infancy, since his time ; and the ' philosophy of society has advanced many steps beyond the point at which he left it. No attempt, however, has be6n made to combine his prac- tical mode of treating his subject, with the increased knowledge since obtained of its theory ; or to exhibit the economical phenomena of society, in the -relation in which they stand to the best social ideas of the time, as he did with such admirable success in reference to the philosophy of his country. Such is the idea which the writer of the present work has kept before him." How far this powerful reasoner may be deemed, by those competent to form an opinion, to have established a sound system of political economy, in conformity with his own expressive views, this is not the occasion for saying : nor is it desired that any thing in the foregoing pages, should be construed into an adoption of all his opinions. Before quitting this topic, the student is presented with some enlightened observations by Dr. Arnold, worthy of great attention.'^ Speaking of those who may be disposed to look on the institutions and laws affecting the acquisition and distribution of property, " as regarding only the lowest part of a state's external life," he says : " No man who thinks seriously about it, can doubt the vast moral importance of institutions and laws relating to property. It has been said that the possession of property implies education; that is, that it calls forth and exercises so many valuable qualities, — forethought, love of order, justice, beneficence, and wisdom in the use of power, — that he who possesses it, cannot live in the extreme of ignorance or brutality : he has learnt, unavoidablyi some of the higher lessons of humanity. It is, at least, certain, that the utter want of property offers obstacles to the moral and intellec- tual education of persons labouring under it, such as no book teaching can, in ordinary circumstances, overcome. Laws, therefore, which affect directly, or indirectly, the dis- 1 " Lectures on History." Inaugural Lesture, pp. 18-20 (4tli ed.) 166 General Knowledge. tribution of property, affect also a nation's internal life, very deeply, "It is not a matter of indifference, whether the laws of inheritance direct the equal distribution of a man's property among all his children, or whether they establish a right of primogeniture ; — whether they fix the principles of succes- sion independently of successors, independently of individual discretion ; or whether they leave a man the power of dis- posing of his property by will, according to his own pleasure. Nor, again, is it indifferent whether the law favours the stability of property, or its rapid circulation ; whether it encourages, entails, or forbids them ; whether it determines that land held in mortmain is an advantage, or an evil. I might allude to the importance of commercial laws, whether for good, or for evil ; and to that fruitful source of political disputes, in modern times, the amount and character of a country's taxation. It is enough, however, to have noticed these points, in order to show, that economical questions, or such as relate to wealth, or property, demand the careful attention of the historian, inasmuch as they influence most powerfully a nation's moral and political condition : that is, in the highest sense of the word, its welfare, or misery." Surely, also, these questions concern the lawyer ; and a knowledge of them, though of a general nature only, will infuse life-blood into law studies, and cast light oh even the obscurest practice of the law. Take, for instance, the subject of Tender. Your mere jog- trot lawyer regards it, as involving only dry technical ques- tions of pleading and evidence — How, how much, to whom, when, where "a tender " should be made, how it ought to be pleaded, and proved :-^but one who, also knowing his profession, has a very little insight into political economy, sees, in the various statutes regulating the amount of tender, interesting evidence of the difficulties with which the legisla- ture has had, from time to time to contend, in adjusting the proportions between the respective values of gold and silver, for the purposes of the currency. Observe, again, how often our courts are occupied with questions as to what is, or is not, inconsistent with "public policy : " of which a highly . Political Economy in Courts of Law. 167 instructive instance is afforded by the recent case of Hilton V. Eckersley.^ The sole point in this case was one purely of political economj^ arising out of the Combination Laws. Some Lancashire millowners entered into a counter-combi- nation against their men (who had combined to force their masters to yield to certain terms), not to open their mills for twelve months, except on terms agreed to by the majority of such millowners. Whether this agreement of the masters was valid, was thesubject of elaborate discussions in the Court of Queen's Bench, and the Court of Error, which might have been imagined the two Houses of Parliament I " I enter on such considerations," said Lord Campbell, in delivering his judgment, " with much reluctance and apprehension, when I think how different generations of judges, and different judges of the same generation, have differed in opinion on questions of Political Economy, and other topics connected with the adjudication of such cases." The Court^ held the agreement void, as contrary to public policy,' in restraint of trade, and the free action of individuals : and the judgment was confirmed unanimously by a Court of Error.* Compare this decision, and. the enlightened principles on which the discussion was conducted, with the state of things existing formerly, in the legislature and on the Bench, as evidenced by the following passage in Lord Coke's Third Institute. Speaking of such " new manufacture as deserves a privilege," he proceeds : " There was' a new invention found out hereto- fore, that bonnets and caps might be thickened iu a fulling- mill, by which means more might be thickened and fulled in one day, than by the labours of fourscore men, who got their livings by it ': — It was ordained, that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling-mill : for it was holden inconvenient to turn so many labouring men to idleness." 1 24 Law Journal, Q. B., W. S. 352. See also the case of Egerton v. JBrownr low, 23, Law Journal, Ohano. 348. 2 Dissentlente Brie, J. 3 See these words commented upon hy Mr. Justice Cresswell, in Egerton v. Brownloio, 23 Law Journal, Chanc. 358. * 23 Law Journal, Q. B. 199. 168 General Knowledge. Eecurrence, for a moment, to the moral aspect of politi- cal economy, may suggest the subject of moral or ethical PHILOSOPHY. The word "Ethics," is used to designate the rules and principles regulating moi-al conduct : and fixed and sound principles of morality are of incalculable importance, of inestimable value. " When the obligations of Morality are taught," says our great moralist, Dr. Johnson, " let the sanctions of Christianity never be forgotten ; by which it will be shown that they give strength and lustre to each other : Eeligion will appear to be the voice of reason, and morality will be the will of God." We must be ever on our guard against making systematic morality, a matter of the head, rather than of the heart. Our duty to God, and to manr requh'es the heart and the head to concur in action : but the heart must be softened, and the head enlightened, by Chris- tianity, without which there can be no sound morality. In religion alone, is true philosophy to be found — the philoso- phy which contemplates man in all his relations, and in his whole nature, which is founded upon a knowledge of that nature, and derived from Him who is the Beginning, and th« End.i Speculative writers on morality, are as much at variance with one another, as writers on political economy. With- out setting the student adrift on the cheerless sea of abstract morality, and earnestly exhorting him to hold fast, living and dying, by the Bible ; only two works will be here sug- gested on the subject under consideration ; Bishop Butler's Fifteen Sermons at the EoUs ; and Dr. Whewell's Memento of Moi-ality,'- which are founded on them, and consistently carry out their principles. This system of moralitj' is essen- tially Christian, and its fundamental doctrine is, the existence of a CONSCIENCE implanted in man : that faculty of approv- ing or disapproving, which constitutes the bond of union between Eeligion and Morality.-^ It is^the Eeason, employed 1 Southey. " Quarterly Eeview," vol. xxxvii. p. 198. 2 In two 12mo. volumes, of which a third edition was published in 1854. 3 Sir James Mackintosh. " Second Prel. Diss. Buoyo. Brit." p. 345. " Con- science," says South, "'is a Latin word, though with an English termination: and according to the very notation of it, imports a double or joint knowledge : Pseudo-Philosophy of Utility. 169 about questions of right and wrong, accompanied with those sentiments of Approbation and Condemnation, which, by the nature of man, cling inextricably to his apprehension of right and wroug.^ While the philosopher acknowledges its origin to be altogether inexplicable, and its existence, an ultimate fact in mental science, the Christian has the light of Revela- tion for his guide ; illuminating the inner constitution of man, showing it adapted to his condition in this life, as a state of trial, with capabilities and responsibilities in respect of a future and eternal existence. It needs but a cursory observation of life, to be made sensible that man has not been endowed with a conscience, without at the same time being placed in a theatre which afforded the most abundant scope, and occasion, for its exercise : — a school of discipline aljke arduous and unremitting, to which the great Author of our being has introduced us. Along with the moral capacity with which He has endowed us, He has provided a richly furnished gymnasium for its exercises, and its trials : where we may earn, if not the triumph of virtue, at least some deli- cious foretaste of that full and final blessedness, for which the scholarship of human life, with its manifold engagements and duties, is so obviously fitted to prepare us.^ Opposed to this, is the scheme or system which takes "utility" as the foundation of morality, wholly superseding Christianity. This is a futile and perplexed sort of mole-eyed morality, " making mere means an end, and that end, a fancied advan- tage limited to the fleeting moment of an earthly existence. " The simplicity of our ancestors," says the celebrated Robert Hall, "nourished by the sincere milk of the Word, rather than by the tenets of a disputatious philosophy, was content to let Morality remain on the firm basis of the dic- tates of Conscience, and the will of God. They considered virtue as something ultimate, — as bounding the mental pros- to wit, one of a Divine law, or rule, and the other, of a man's own action : and so, is properly, the application of a general law, to a particular instance of practice." — " Sermons," vol. ii. Sermon 12. And see Trench on the Study of Words, 195 (5th ed.) 1 WheweU, ''Lect. on Systematic Morality," Lect. vi. p. 144. 2 Dr. Chalmers, " Bridgewater Treatise," chapter iv., On the General Adap- tation of Watnre to the Moral Constitution of Man. 170 General Knowledge. pect. They never supposed that there was anything to which it stood merely in the relation of a Means ; or that, within the narrow compass of this momentary state, anything great enough could be found to be its end, or object. It never occurred to them, that that religion which professes to render us superior to the world, is in reality nothing more than an instrument to procure the temporal, the physi- cal, good of society. In their view it had a nobler distinc- tion. It looked forward to Eternity ; and if ever they appear to have assigned it any end or object beyond itself, it was, an union with its Author, in the 'perpetual fruition of God.i Far, then, be it from one studying the laws of a Christian State, to undervalue, or even feel lukewarm concerning, the Morality which is placed upon a right basis,— that of Re- vealed Truth ; its precepts and principles regulating all the relations and transactions of life. Everything, indeed, that we see in society, is a natural consequence of disobedience to the first law, which commands the love of God : for as that law is the foundation of the second, which commands men to fove each other, man could not violate the first, with- out falling, at the same time hito a condition which made him break the second also, and consequently disturb society.^ Fi om the divine precept to love God, and our neighbour as ourself, may be deduced the whole of jurisprudence :* which of itself demonstrates the necessarily intimate relations be- tween Ethics, and Jurisprudence. It has, however, been acutely remarked by Sir James Mackintosh,* that injury has been suffered by ethics, from its close affinity to jurispru- dence.'^ The object of Law, is the prevention of actions injurious to the community : considering the disposition from which they flow, only indirectly, in order to ascertain the likelihood of their recurrence, and thus determine the necessity, and the means, of preventing them. The direct object of Ethics, is only mental disposition : considering 1 Sermon on the Sentiments proper for the present Crisis (1803). 2 Domat, chap. ix. s. 1. 3 id, chap. i. ss. 6; 7, 8. * " Second Prelim. Diss." linoyc. Brit. vol. i. p. 383-4, (7th ed.) 6 Id. ib. Law of Ethics. . 171 action indirectly, as the signs by which such dispositions are manifested. Law and Ethics are necessarily so much blended, that in many intricate combinations the distinction becomes obsc,ur«.^ Li all strong cases the difference is evident. Thus, Law punishes the most sincerely repentant : but whenever the soul of the penitent can be thought to be thoroughly puri- fied. Religion and Morality receive him with open arms. Now, those whose habitual contemplation is directed to the rules of action, are likely to underrate the importance of feeling and disposition. This is an error of very unfortunate consequences ; since the far greater part of human actions, flow from these neglected sources ; while the law interposes only in cases which may be called exceptions, which are now rare, and ought to be less frequent. Without, however, pursuing this interesting subject fur- ther, it is right to remind the student of the great maxim of the Romans, Interna non curat praetor: the line of de- marcation between ethics and law, must be strictly observed, and internal actions not made the objects of Law ; for a vio- lation of this fundamental distinction, would be attended with the most serious consequences. A door would be opened at once, to the most injurious and arbitrary invasions of the . rights of individuals, by the ruling power. Wherever, in short, the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust.^ — Descending to more practical considerations, but bearing in mind this line of de- marcation, let the student reflect, for a moment, on the vast class of cases which depend, especially in the administration of criminal law, on motive, and iMention ; and what is the Avhole system of Equity, but the professed and direct .appli- cation of moral principles to the ordinary transactions of mankind ? Take the veiy first sentence in the celebrated treatise by Lord St. Leonards, on The Law of Vendors and Purchasers of Estates : " Moral writers insist that a vendor 1 " Second Prelim. Diss." Enoyo. Brit. vol. i. p. 383-4, (7th ed.) 2 Mackeldey, " Oompendium of Modern Civil Law)" by Kaufmann, vol. i. p. 123 (note). 172 General Knowledge. is bound, in faro conscientzoe, to acquaint a purchaser with the defects of the subject of the contract." " Our law," he significantly adds, " does not entirely coincide with this strict precept of morality." Here we are suddenly plunged into the depths of ethics : and Lord St. Leonards gently leads us into the opinions of the great authorities on such subjects, from Cicero, Puffendorff, and Grotius, to Paley.^ Eeferring the student to the discussion of these topics by Dr. Whewell, and his observations on the distinction between Jurisprudential and Moral equity," the topic must now be dismissed, till it can be more fully discussed in an appropri- 3,te chapter. The conterminous province of Psychology, Metaphysics, or Mental Philosophy — ^th at relating to the powers, faculties, and aifections of the Mind — must be here approached, and quitted, with equal haste. What, it may be asked, do we now really know of that strange mysterious thing, the human mind, after thousands of years' ingenious and profound speculations, of philosophers? Do we know more of it in the nineteenth century, than was known by Aristotle twenty- two centuries ago ? The intellect of Newton, La Place, or La Grange, says Sir John Herschel, may stand* in fair com- petition with that of Archimedes, Aristotle, or Plato. ^ The mind of man having not degenerated, has been, during this vast interval, addressing its greatest energies to the subject, in vain I Is it ordained by our Maker that it should be so? That, while physical science has made such immense pro- gress, the nature and operations of mind shall for ever be shrouded in mystery impenetrable, and that we shall continue pleasing, puzzling, and harassing ourselves in vain, till the end of time ? Nevertheless, the law student is apprised, that knowledge derived from even these dim and distant regions, is often available for the purposes of the practical lawyer ; who is repeatedly called upon to deal, as a matter of specific inquiry, with the quality of a particular mind, at 1 " Moral and Political Philosophy," book iii. chap. vii. 2 " Elements of Morality," book ii. chap. xxii. 3 "Kat. Philosophy," chap. iii. Stationary Chakacteb of Metaphtsics. 173 a given period, and the charadter of its operations, with reference, for instance, to the disposition of property, and responsibility for criminal acts. This subject, however, will be presently more properly before us, when mention is made of Medical Jurisprudence. The student is here referred, if disposed to exercise him- self with the subtleties of psychology, to the admirable first and second Dissertations on the Progress of Metaphysical and Ethical Philosophy, by Dugald Stewart and Sir James Mackintosh, respectively, in the first volume of the JEncy- clopaedia Britannica ; the Elements of the Philosophy of the Human Mind, by the former ; and the Lectures on the Philosophy of the Human Mind, by Dr. Thomas Brown. Of this last, an acute and discriminating estimate will be found in the second Dissertation, above-mentioned, by Sir James Mackintosh. Medical science has advanced within the last few years rapidly, and approved itself an efficient coadjutor of law, in dealing with the most painful, delicate, and momen- tous questions which can be adjudicated upon by civil or criminal tribunals. Medical jurisprudence, as it is generally called,^ is almost advanced into the dignity of a science, with which it is almost impossible that practitioners in the law, except, possibly, the conveyancer, can safely be altogether unacquainted. First of all comes that branch of medical juris- prudence, which has to deal with the condition of the men- tal faculties ; and that in civil, and in criminal cases. Ques- tions in the former comes indifferently before the courts of Common Law, and Equity : — when, for instance, a "Will, or any otijer instrument, or any given act, is impeached, on the ground that the individual concerned had not the proper use of his faculties, either temporarily or permanently : or when the mental condition of any one is the subject of spe- cial and direct inquiry, by commission De Lunatico Inqui- rendo, for the purpose of protecting an individual alleged to be unfortunately unable to protect himself or his property. Questions of the lattewiind arise in criminal courts, superior 1 In Germany, it passes under the name ot State Medicine. 174 General Knowledge. and inferior ; when the state of the prisoner's mind becomes a vital question, in order to determine criminal responsibility for a particular act, as of homicide. It is impossible to exaggerate the importance and difficulty with which such inquires are frequently invested, in no small degree aggravated by the conflicting testimony of. confident medical witnesses, who too often become unconsciously the victims of pique, or bias. The second great branch of medi- cal jurisprudence may be spoken of, generally, as that which elucidates the cause of death, — as by poison, wounds, strangu- lation, suffocation, drowning, starving, or other ill-treatment, whether of a violent nature, or not ; and distinguishes be- tween death by natural, or violent causes. The two principal works on this important subject, are those respectively by Dr. Beck and Dr. Taylor. Both works enjoy the good opinion of the Bench, and the Bar ; but that of Dr. Taylor, which has passed through six editions since the year 1844, ^ may safely be pronounced the latest and best on the subject ; as exhibiting the newest lights, and by the hand of a gentleman of great experience and practical skill. — It might be well worth the while of a student intend- ing to practise, at first, in the criminal courts, to attend a few elementary lectures on anatomy, surgery and chemistry. It may be added that the question as to the propriety or impropriety of a course of medical or surgical treatment, is wot uufrequently the subject of an action, either resisted, when at the suit of the practitioner for his fees, on the ground of negligence and imskilfulness ; or constituting a cause of action at the suit of his patient, or even his representatives, in the case of death. It is manifest that a profession appealed to every hour of the day, by merchants, tradesmen, shopkeepers, manufac- turers, sei"vants, clerks, accountants, auctioneers, builders, sur- veyors, architects, engineers, brokers, factors, Dr. Lingard. Chap. vii. 7 Vol. 1. pp. 71-89. 462 Constitutional Law and History. for fuller information, may be made to the elaborate work of Dr. Lappenberg, already referred to, "England under the Anglo-Saxon Kings ; " and to the late Mr. Kemble's work, entitled " The Saxons in England ; — a History of the English Commonwealth till the period of the Norman Conquest." 1 See also the seventh chapter of Dr. Lingard's " History of England, and the Ancient Laws and Institu- tions of England," already referred to.* III. The NoEMAN element challenges special study. It is equally impossible to be a practical, or prefer any valid claims to the character of a constitutional, lawyer, without having long and deeply reflected on that prodigious event, the Norman Conquest : which was, in the language of Thierry, the intrusion of one people into another people; the violent placing of one society, over another society. The subjugation of a nation, by a nation, says Lord Macau- la,y, has seldom, even in Asia, been more complete.^ — Our law of Eeal Property is at the present day, absolutely a sealed book to one ignorant of, or only slightly acquainted with, the Feudal System : and the Great Charter, which is always on the exulting lips of people in every rank of life, is, without a competent knowledge of feudalism, utter- ly unintelligible. This wonderful system, this "prodigious tjibric," to borrow the striking language of Mr. Hume, "which for several centuries preserved such a mixture of liberty and oppression, of order and anarchy, of stability and revolution, as has never been experienced in any other age, or in any other part of the world," lasted for about a thousand years. Faint indications of it appeared a. d. 500 ; it was at the highest vigour about a. d. 1000 ; and extinguish- ed about the year A. d. 1500. Mr, Hume's brief but beau- tiful sketch of the Feudal Sj'stem, is to be found in the Second Appendix to his History. A philosophic estimate of the Feudal System may be seen in M. Guizot's " Fourth Lecture on the History of Civilisation ; " an elaborate ac- 1 In two vols. 8vo., Longman and Co., 1849. , 2 It can hardly be necessary here to refer to a work so well known as Mr. Sharon Turner's interesting "History of the Anglo-Saxons." 3 " Hist, of Eng." Introductory Chapter. Leading Expositions of the Feudal Systems. 463 count of it in the second chapter of Mr. Hallam's " Middle Ages." It also forms the subject of a popular and luminious dissertation iu the eighth and ninth chapters of Lord Brougham's " Political Philosophy." He there passes in review the opinions of all the more important writers on the subject, — those especially of Mr. Hallam and M. Guizot. From any of these qyuarte.rs may be obtained an historical knowledge of this great system, and the general principles on which it was founded. Its direct legal bearing may be seen in the 43rd, 44th, and 45th chapters of Blackstone ; ^ and in Sir Martin "Wright's " Introduction to the Law of Tenures, — i. e., the Origin, Progress, and Doctrine of Feuds, and the Existing Tenures emanating from them."^ Every word of this work should be read and re-read with attention. The same may be said of the masterly exposition of the Feudal System given by the late Mr. Butler ; exhibiting the contrast between some of its leading provisions, and those of the Roman Law ; the branches of the feudal jurispru- dence relating to the inheritance, and alienation of the feud ; the various modes and artifices adopted in various countries to elude or overthrow the restraints upon alienation : the gen- eral history of its Decline, through the introduction of the practice of subinfeudation ; of tenure of escuage ; of uses and trusts. This invaluable note, in continuation of Mr. Hargrave's brief note at 64 (a), constitutes the first of Mr. Butler's, to Co. Litt. 191 (a), occupying thirty-one pages. The Student should follow it up with Mr. Butler's equally and important Notes on Uses, Co. Litt. 271 (b), and Trusts, 290 (a). Whether Feudal Tenures were known here before the Conquest, may be still regarded as a moot point. Dr. Lin- eard* insists that the artificial relation between Lord and Vassal was accurately understood, and its duties were faith- fully performed, by the Anglo-Saxons. The middle and better opinion, seems to be that of Coke, Hale, and Black- . 1 Pp. 422-490 of the author's Abridgement; and vol. ii. pp. 44, et seq. of the " Commentaries " at large. 2 It is in a spare volume of only 200 pages, and in three chapters. 3 "Hist, of England," chap. vii. 464 Constitutional Law and Histoey. stone ; that though the germ of Feuds may be found iri the Saxon polity, their, introduction as a complete system, is due to William the Conqueror. The mailed hand with which that great warrior grasped and shook our early institutions, has left its deep impress on them to the present day ; and in spite of persevering, and recently powerful efforts, it is impossible, perhaps,' to predict its e^er being completely effaced. lu the progress of time, however, it has been greatly modified, by its continual conflict with the spirit of commerce, which has gradually overcome many of the rigid and apparently inflexible principles of feudalism. Feudal- ism and Commerce are imbued with a totally different spirit.^ Commerce is diffusive, feudalism exclusive : commerce tends to lessen distinctions of rank in society; feudalism strengthens them. Commerce tends to make the earth one great nation : feudalism breaks it up into an indefinite number of petty nations. Commerce seeks to discover new coimtries, new seas, new channels of communication : feudalism knows little and cares little, for what occurs beyoud its own limited circle. The rise of the Italian cities, such as Venice, Genoa, Pisa, and Florence, took place in direct opposition to the wishes aud plans of the Feudal Barons. Keeping in view the distinction thus suggested between Feudalism and Commerce, will greatly facilitate the student's knowledge of the distinctions existing between real and per- sonal propertj'. The laborious and learned author of "England under the Saxon Kings," Dr. Lappenberg, has since published, as a companion volume, " A History of England under the Nor- man Kings ; " or, from the Battle of Hastings, to the ac- cession of the House of Plantagenet. This volume is, like the other, ably translated and edited by Mr. Thorpe.^ Sir Francis Palgrave also is giving to the public the results of his extensive researches on the same question, in a work en- titled "The History of Normandy and England,"^ of which two large volumes have appeared, and a third is announced. i " Lord and Vassal," pp. 137-8. 2 In one vol. 8vo, 1857. 3 Parker and Son, 1851 and 1857. The Eevolution which Pkevented a Eevoltjxion. 465 The Reformation, is an event which, in the picturesque and happy languaga of Lord Macaulay, "has coloured the destiny of all Christian nations, and in an especial manner the destinies of England." It is an object, indeed, of tran- scendant interest and importance, in every aspect, practical and speculative. "No portion, however, of our annals," observes, with painful truth, the author just cited, "has been more perplexed and misrepresented by writers of different parties, than the ' History of the Reformation ; ' it is a laby- rinth of falsehood and sophistry."^ The Romish view of it, may be obtained from Dr. Lingard's " History of Eng- land," in the second chapter of the fifth volume,^ and else- where ; the Protestant and Church of England view of it, in " Palmer's Treatise on the Church of Christ,"* Part 2. chapters 1-10. See also the second, third, fourth, and fifth chapters of Mr. Hallam's " Constitutional History ; " the fifth and ensuing chapters of the second volume of Sir James Mackintosh's "History of England ; " and the ninth and tenth of Professor Smyth's " Lectures on Modem His- tory." In the last will be found a calm and candid ac- count of the Reformation, and of the various writers who have undertaken to record it. The importance of such knowledge, to even the ordinary practical lawyer, has been illustrated in a previous part of this chapter. Finally, it is remarked with truth by Mr. Froude,* that the elaborate catalogue now in course of preparation, of the mss. in the Public Record Office, will reveal, to most persons for the first time, the enormous mass of material which exists, to throw light on the early history of the English Reformation. His own partly published history is, whatever exception may be taken to various portions of it, an important contribution to the literature of the Reformation. The Revolution of 1688, stands out the most magnifice&i event in our annals, the Reformation only excepted. In 1 " Essays." Review of Hallam's " Const. History." 2 Sixth ed. 1854. 3 In two vols. 8vo. Kivingtons' last ed. a.d. 1842. * "History of England," Constitution, from the Feudal Times to the Opening of the History; and in- cluding a particular examination of Mr. Hume's Statements relative to tha Character of the English Government." Bj- George Bvodie, Advocate. Four vols. 1822. Hume's History — the Reverse. 475 of the Conquest, to the feudal kingdoms of the Continent, it was fortunately enabled, by its insular position, to escape the subjugation imposed on its neighbours by means of Standing Armies. That the government of England was al- ways spoken of by both foreign and native authors, as clearly distinguished from those of the Continent, by its greater freedom, and the higher rights of its people : objects anxiously provided for by various statutes, long before the accession of the Tudors. That the wars of York and Lancaster, by break- ing the power of the greater barons, had the double effect of strengthening the Crown, by their suppression, and leading to the formation of burghs and free associations among the lower people, whose vocation of private war had in a great measure ceased ; and whom this social revolution had driven on the pursuits of industry, and the independent assertion of their rights. The Commons, therefore, grew into consideration exactly as the Barons declined ; and succeeded naturally to the benefit of those limitations on the royal power, which the Barons had established chiefly with a view to their own in- terests. That the suppression of religious houses under Henry VIIT., had substantially the same operation ; and in even his time, there existed indubitable indications of a spirit of resist- ance in- the Parliament, arfd an independent supremacy in the law, marking the true character of the government as a limit- ed, and not an absolute monarchy. That the reign of Mary was that of a bigoted and vindictive faction, while that of Elizabeth, in spite of disfigurement by arbitrary proceedings, was on the whole, the reign of a constitutional sovereign. That it was the Stuarts who originated, and proclaimed, those tyrannical pretensions which innovated upon and debased the whole spirit of the constitution : claiming rights, and exer- cing powers, before unheard of, and denying rights to their people, and privileges to their parliaments, never before questioned. That the Commons were, therefore, justified in insisting on the redress of such grievances, and on the re- cognition of those rights, as conditions of their granting supplies : and that the consequent discontinuanqe of Parlia- ments, and levying money without their sanction, were wholly indefensible, and at variance with all law and precedent. 476 Constitutional Law and History. The student may find his account in perusing with care a temperate and elaborate examination of these conflicting views, in that number of the Edinburgh Review from which the foregoing paragraphs have been condensed, and to which reference has been already made. The histories of England by Hallam,^ Lingard, and Macau- lay, have been already sufficiently noticed. That of Sir James Mackintosh, which his death interrupted when he had reached no further than the year 1572, is well worthy of being studied, on account of the care with which his materials were collected, his dispassionate treatment of them, and the philosophical tone which p'fervades the whole.^ The eventful reign of George III. forms the subject of seven octavo volumes, by the late Mr. Adolphus, who died before completing his labours, leaving one, if not two volumes to be added, whenever the leisure of his accomplished son* will admit of his performing the filial duty. The seven volumes left by the author are enriched by the fruits of a most laborious examination of the " inestimable documents " then in the State Paper Office.* " I do not deny," says the author, with commendable frankness, " that I have written under the influence of strong and decided opinions on men and measures ; but the character I claim for myself,- is that of never having purposely imparted a false,- or led to a mis- taken, judgment." Two noble lords, now living. Earl Stanhope (formerly lord Mahon) and Lord John Russell, have severally written histories of periods of English histoiy, commencing with the Peace of Utrecht (31st March, 1713). That of Lord Stanhope comprises seven octavo volumes, the last of which 1 Mr. Hallam's " Constitutional History " really commences with the eighth chapter of his " Middle Ages," -which is divided into three parts, respectively devoted to the Anglo-Saxon Constitution, the Anglo-Norman Constitution, and the important period from the reign of Edward I. to the end of that of Ed-ward TI. : the " Constitutional Histoiy " commencing with that of Henry VII. and closing with that of George II. This distinguished writer died while this work was passing through the press. 2 The history is comprised in three small volumes. 3 John Leyoester Adolphus, Esquire, Judge of the Middlesex County Court. * Now the Public Record Office. Lord Bolingbboke's Sarcasm. 477 was published in the year 1854, extending to the Peace of Versailles. That of Lord John Russell is in two quarto volumes, entitled " Memoirs of the Affairs of Europe, from the Peace of Utrecht," the first published in the year 1824, and the second in 1829. "I hope to be able" said the author, "in a third volume, to bring the narrative down to the end of the American War, and to close a fourth with the death of Louis XVI. Then the work will be concluded." Thirty years have since elepsed, however, without any addition to the two already published ; and a lengthened and active public career may possibly have put an end to the under- taking. Immediately preceding the Table of " Contents," in the first volume of Mr. Hallam's " Constitutional History," will be found a list of the leading authorities referred to by him in preparing that work ; and at the commencement of a review of Dr. Lingard's " History of England," in the 53rd volume of the " Edinburgh Review," there is an able sketch of " what had been written (down to the year 1831), in the way of English History, confined, however, to the vernacular language, or translations into it." Thus has it been attempted to bring distinctly under the student's eye, the conterminous provinces of Constitutional Law, and Constitutional History. It is for himself to deter- mine whether he will become acquainted with, or remain grossly ignorant of them ; whether a lawyer in the middle of the nineteenth contury, will tolerate being branded with the stigma scornfully attached by Lord Bolingbroke^ to those of his own day, in the middle of the last century. "A lawyer, now [circ. 1736], is nothing more — I speak of ninety-nine in a hundred, at least — to use Tully's words, nisi leguleius quidem cautus, et astutus prceco actionum, cantor formuhrum, auceps syllabarum. ^ But there have been law- yers who were orators, philosophers, historians ; there have 1 "Study of History," p. 353 (quarto ed.). 3 Cic. " Orat. pro Mm-ena," § 55. 478 Constitutional Law and History. been Bacons and Clarendons. Thei-e 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 en- couragement to prepare themselves for the exercise of their profession, by climbing up to the 'vantage ground, as my Lord Bacon calls it, instead of grovelling all their lives, below, in a mean but gainful application to all the little arts of chicane. Till this happens, the Profession of The Law will scarce deserve to be ranked among the learned pro- fessions ; and, whenever it happens, one of the 'vantage grounds to which men must climb, is metaphysical, and the other historical, knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discern the whole abstract reason of all laws ; and they must trace the laws of particular states, especially of their own, from the first rough sketches to more perfect draughts ; from the first causes or occasions that produced them through all the effects, good and bad, that they produced."^ conclusion. And now, at length, the author, hoping that he has been a faithful guide, having conducted the student to the portals, and accompanied him through every chamber, of the august Temple of Justice, quits him, not without emotion : "wishing unto him," in the words with which our great master Coke closes his commentary on the venerable Little- ton, "for a farewell to our jurisprudent, the gladsome light of jurisprudence, the lovelinesse of temperance, the stability of fortitude, and the soliditie of justice." 1 Bishop Warburton attributed these observations to mere spleen on the part of Lord Bolingbroke. "I must laugh with you," says the former, in a letter to Hurd, " as I have done with our friend Balguy, .for one circumstance. His Lordship has abused the lawyers, as heartily as he has done the clergy — only with this diiference : he is angry with us for using metaphysics, and with them for not using it. I know why. He has lost many a court of justice, because the lawyers would not interpret his no facts into metaphysical ones ; and been defeated in many an argument in conversation, because divines would not allow that true metapysios ended in naturalism. I myself, who am but in my elements, a mere ens rationis, simply distilled, have dismounted him ere now." — Warburton's Letters to Hurd, let. xli.- The Conclusion. 479 Farewell, then, good student 1 Health, prosperity, and honour await thee I but remember that they are the gifts of Him alone, who hath said, in word's^ of awful import, never to be forgotten in either the shade, or the sunshine of life, — alike in the gloom of despondency and disappointment, as in the dazzling noonday sunlight of success, — The Lor^ sdith, them that honour me, / will honour, and they that des- pise me shall be lightly esteemed. 1 1 Sam. ii. 30. INDEX. As PAOB. Abinger, the late Lord ("Scarlett, Sir J.), on the necessary peoniii- ary resources on coming to the bar 47 his style of cross-examination of witnesses 292 sued unsuccessfully for slander, for calling an attorney fraudulent and wicked 201 Ahhremations in old documents, knowledge of, essential 127 a work on, recommended 128 Abridging cases and statutes, great accuracy recommended in. . . . 355 striking instance of error in doing so. 356 Accomplishments of the bar • 29 Aeguaintanee, choice of > 80 calling at tutor's chambers, to be discouraged 376 Act of Court, taking advantage of 191 Adam Smith, his wealth of nations 163 Admiralty Court, reconstruction of. 5 Adverse witness 16 Advocacy, requirements of 42 dignified duties of 53,239 theory and doctrines of 198 difficulties of. 198, 204, 230 Paley's notion of the ethics of 208 Judge Crampton's exposition of 217 Erskine's defence of tom Paine 222 consequences of profligate 231 Dr. Johnson's view of 238 grounds on which it is to be encouraged 239 corruption of ancient Roman 244 Advocates, monopoly of, in ecclesiastical courts, abolished 25 oath imposed on, by Justinian 225 Affirmation by Quakers and others 16 Agriculture, knowledge of, essential 176 questions arising on 176 the best work on 177 Alfred, required his nobility to study the laws 58 31 482 . Index. Pask. Algeron Sydney^, striking remark of, concerning choice of compan- ions ; 80 Alison, Sir Archibald, his History of Europe 155 Amalfi, fabulous discovery of the Pandects at 157 Amateur Student 55 Amiition, true, in what it consists 87 generates decision of character ., . 88 ambitious anticipations not to be discouraged 41 Amos, Mr. his illustration of the disadvantages attending law lec- tures 303 Analogy, Bishop Butler's, recommended 115 Anatomy, attendance at lectures on, serviceable 174 Ancient Documents, abbreviations in 127 source of assistance in reading 127 interpreted by experts 127 Ancient History 137 basis of scheme for the study of 137 Lord Mansfield's plan of reading 138 translation from, to modern 149 An.•.••.'••• • 11 fusion of, and equity ,..,.....' 7 . what constitutes... 27 speaketh by good pleading 27 general rules of. 28 difQculties and facilities in the study of ............... . 29, 30 proposed amendment of, by Queen Elizabeth 29 its " grandeur " 34 distinguishing features 43 the science. . .• .'..... 44, 121 the object 170 ethics combined with 170 is founded on the law of God and reason 195 its object the promotion of truth and ju.stice 239 difBeuIt to recommend the proper commencement of the study 297 observatiou of Lord Coke, that reason is the soul of.. . . . 354 facts to be understood, before law sought for, in dealing with complicated cases 349 Lawyers, one thoroughly imbued with principles cannot go far wrong however sudden his emergency. ,. 318 Leadiny cases, at Common Law, by the late Mr. J. William Smith, 358 practical suggestions to students for retaining names of. . 356 readiness in recollecting, a valuable accomplishment 357 Lectures, the method of teaching law by means of, considered .... 303 invaluable for teaching physical science 180 facilities aflForded by, at King's College, London 180 Legal character, suggestions for formation of. 69, 114 Legal studies, difficulties of .' 115 Leslie', Professor, eulogy of the eloquence and accuracy of the Greek geometers 57 ZAhrary, expense of private 50 of inn of court, students access to 49 Lies, Pale/s doctrine of. 208 Puffendorfs 210 the acting 232 Hamilton's system of logical lying 233 Dr. Johnson's notions conceniing 238 Limitations, acknowledgments must be in writing 16 in real actions 16 on specialties 17 lacke, oii the study of words 132 his beautiful words concerning knowledge taken on trust., 315 on hastiness in forming judgments 325 33 498 Index, Paob. Logic, necessity of familiarity vrith, illustrated 102 nature and province of. C2 Dr. Whately's elements of, recommended 107 his easy lessons on reasoning 109 Mill's logic 108, 109 the leading rules and terms of. t 131 Long Vacation.,,' • 4 Lord's Day, reverence for 85, 86 Lungs, sojindness of, required for court practice 45 Lyndhurst, Lord, his wonderful aptitude for mastering complicated cases 349 MeCulloch, Mr., his Political Economy 163 his edition of Smith's Wealth of Nations 163 utility of his Dictionary of Commerce 176 MacJceldy, on judicial power encroaching on moral duties 171 Mackintosh, Sir J., condemns Bishop Butler's style of composition 114 regards him as a great thinker 114 moral philosophy, what it is 168, 170 Magistrates, summary jurisdiction of 24 qualification and responsibilities of 59 ignorance of 61 privilege of speech 200 Magna Charta, Lord Coke's words concerning 26 Mansfield, Lord, study of the art of oratory by 129 his plan of reading ancient history 138 Mathematics, study of, recommended for the discipline of the mind, 99 advantages derived from early study of 120, 180 knowledge of, requisite 179 lectures on 180 Maxims and principles 339 their value to jurists and practitioners 339 Mechanics, knowledge of technical terms 179 classes at King's College for the study of 180 Medical Jurisprudence, necessity of knowledge of 173 Dr. Beck's and Dr. Taylor's treatises recommended 174 attendance at lectures on anatomy 174 surgery and chemistry highly advantageous 174 Memory, cultivation of the ■ 103 may be vastly improved by judicious exercise 112, 325 remarks of Dugald Stewart 330, 334 the qualities of a good 331 practical suggestions 330, 334, 350 Mental IHscipline 95 early, indispensable 96 fatal consequences of neglecting 97 Index. 499 Pagi. Mental Discipline, absolutely necessary for success at the bar. ... 99 - LordBaoon'sencouragementtowardsenteringonacourseof, 98 mathematics eminently calculated for 99 instances of the useful study of. 99 beauty of Euclid's reasoning 102 Chillingworth's works recommended 109 Bishop Butler's analogy and sermons 114 chess contributory to 115 progress of the mind under the course suggested 115 Mercantile Law, recent improvements in, by the legislature ...... 20 Smith's Compendium of 297 Method, advantage of, in study 73 Middle Ages, History of the , 87 Mill, Mr. J. Stewart, his logic 108 his political economy 164 Milton, his habit of early rising 84 Mind, the 70 its training 95 operation of , 172 Mischoice of the bar, unfortunate position of one making , Misconduct, moral, in counsel, how punished 228, 230 Misrepresentation (see Fraud) of facts by counsel 91 dangers of .* 91 respecting ability of a third person 91 . first action for 91 vehement disapproval of Lord Eldon. 91 on whatgrounds 91 Moderation in studies recommended 82 Modern History, study of. 137, 157 transition 149 character 149 lectures 150 Monopolies, statute of 178 Moral Faculties, exercise of 197 Philosophy 157 its study 113 system of, essentially Christian 168 writers on. 168 its province 172 stationary character of metaphysics , 172 works suggested for the study of 173 Morals, corruption of 65 Natural Philosophy, attendance at lectures on, recommended 180 lawyers must be acquainted with , 180 Sir J. Herschel's admirable dissertation on IgO 500 Index. Pasb. Natural-born Subject, establishing the right to be, ..,.,.,.,.,.. . 7 Navigation Laws, a\iTO%s>Xadi ,,..,,. 21 Negligence of counsel .,......,,,..,.., 38 Newspapers, should be banished from tutor's ehambers 376 Newton, Sir Isaac, mathematical knowledge of ,....,,.,.,. 63 Nichols, Sir H., his chronology of history ,...,... 133 his observation on the errors of history . . .y ,.,.,,..,,. . 451 Niebukr, his history of Rome .,,,.., 142 his opinions. ....,., , ,,,..,,..,,,,,.. 145 Nisi Prius, sittings at ,,..,..,. 4 Nobility, what is true.. ...... ..,...,.,.,.,,,.,.,.. 62 should be instructed in the laws. . .,..,......,..<.,,.. 51 Nominal students ....,,..,.,,,.,..,.. 55 North, Soger, on the necessity of patience, 61 on companions. ........,.,,,,.... 80 on hours of study ,...,.......,,. 83 on youthful application , , , 97 recommends frequent discussion of , 361 points of law between students. . . , ,,...,...,... 361 his caution concerning students going down to court, . . . 376 the system of common placing approved by. ....,.,..,,, 381 0. Oath imposed on advocates by Justinian ,.,,.,,..,,,... 226 OlfjecUons, lying by with, discouraged , , ,,,,,.,,.. 14 Offence, couusel should be slow to take ,..,,.,..,.,,,. 392 Office, qualifications for. ,....•••.. , , : . . 62 Official Habits , , 121 Opinion of Court, on question of law, how taken. ..,,.,.,,,... 11 expression by covingel on client's case 211, 240 Opponent never to be undervalued by counsel , , 393 Oral Examination of parties. . • . , ',,.,,,...., , . , , 10 P. Faine, Thomas, Erskine's defence of , 221 fittley. Dr. his Horm Palina, an incomparable specimen of reasoning, 113 strongly recommended to law students 113 specimen of mental exertion for which students must pre- pare 98 his political philosophy , 116 on rights and duties of advocacy. 208, 237 his doctrine of lies 209 Parents, ambitious anticipations of 41 caution to C7 early neglect of mental discipline of children by. , 96 Index. 501 Pagb. Patent and Registration Laws^ scientific knowledge in lawyers ne- cessary to deal with 177 a fruitful source of litigation 178 the varied subjects of j ^ 178 technical terms in , . . . ^ 179 courts having cognizance in matters of^ ..;... « 179 Patience, necessity for 51 great advantages of 70, 73 and slowness of belief, the strongest mark of a sound judgment < 336 Patronage, vigilence of the bar -and process concerning its exercise, 62 Pecuniary Besoui'ces, what necessary on coming to the bar. ..47, 67, 321 Perseverance, rewards of ^ 38 Personal Fitness for the bar. ........ .^ .. ^ ................... . 46, 70 Pettifoggers - 69, 396 Phillips, an observation on the dress of students.. 79 recommends students to debate points of law 362 Philology, science of. ^ 157 Philosophy, natural and experimental, lawyers should beacquainted with *. 180 Physical Powers, importance of considering both to parent and student < i > 45 Science, early acquaintance with the elements of, neces- sary.......... ........... . 177 Physician, fees of, when reasonable. <.... 246 Plain cases, always to be distrusted. 391 Playfair, Professor, his edition of Euclid.the best ada{>ted to stu- dents . - V 101 the oldest book of elementary geon»etry, the best. ....... 102 Pkadmg, improvements effected in 12 the law speaketh by good. 27 questions of fact may be referred to jury without 11 Political Economy, province of < 158 questions on, how discussed 162 its immaturity as a science 163 prineipal.terms and ambiguities of. 163 works on, 163 knowledge of, Valuable to the lawyer 163, 166 illustrative cases at law 166 Political Philosophy, principles of. 157 subjects within the province of.. 157 recent work of Lord Brougham on.. 157, 458 sources of 1 60 Politics, study of. • * 141 Pollock, Lord Chief Baron, his opinion on the duty and responsi- bility of counsel 248 Practice^ " • 27 private ■ 39 502 Index, Paqb. Practice, court, qualifications for of leading counsel, confining their practice to one court, recommended Practical skill, in what it consists 116 Practical study of the law 297 Roger North's observation on the difficulty of suggesting the proper method of commencing 297 omission of systematic training 298 solitary reading, caution concerning 300 attending lectures 303 necessity of keeping in view the unity of the profession. . . 304 books which may be read by student immediately previous to attendance at chambers 303 attendance at chambers, the best method for 305, 321 practical illustrations of it 306 Practical suggestions (see Hints) designed to facilitate the study and practice of the law .' 323 Precedents, in conveyancing, the use of 83 Preliminary Examination, new phase of the question 35 conclusion of commissioners on the question 36 Presumption, not tolerated at the bar 62 Principles, of justice, unchangable nature of 27, 194 of enjoyment of property 28 dangers attending the exclusive study of 308 necessity of constant reference to, in study and practice. . 317 the late Mr. Starkie's illustration 317 Dugald Stewart's opinion 318 one thoroughlj^imbued with, cannot go for wrong, how- ever sudden the emergency 318 how to acquire readiness and accuracy in applying 327, 339 illustrations and exercises in 340 Prisoner, rights of 198 confession by, to counsel 197, 203 to judge 203 not compelled to criminate himself 199 defence of, by counsel 199, 215 counsel cannot refuse his retainer 225 Private Opinion, expression of by counsel on client's case, not al- lowable 211, 240 Privilege of Speech 200, 385 Privy Council, improvements effected in 4 its authority in matters relating to patents 179 Prises of the bar 38, 43 Probate, Court of, establishment of 24 judge of. 24 who may practice in. 25 rules and orders of 25 Profligate advocacy 231 Index. 503 * Page. Promises of support at the bar, by friends, often delusive 51 Pronunciation, accurate, should be aimed at 127, 130 ridicule occasioned by improper 127 Property, principle of enjoyment 28 origin of 322 Psychology, province of 171 sources of study of 172 Public Funds, knowledge of system 176 Public Law, study of 159 Public Policy, courts frequently occupied with questions . . ..... 166, 417 Public Speaking, art of, to be cultivated 64 an essential feature in 112 hints for acquiring method in 359 Puffendorff, his doctrine of lying 210 Punishment for misconduct at the bar 230 Pupilage, period of probation , 321 practical cgusiderations in reference to it 321 students conduct in chambers 373 usual fee for 322 how pupil to prosecute studies advantageously 305 course for the common lawyer ' 305 Q.' Qualifications, personal, for success at the bar 67 for ofBce 62 for the legislature 57 for the magistracy, 59 Quakers, affirmation by 16 Question of law, mode of taking opinion of court on 11 of fact, may be referred to jury without pleadings 11 Quibbling humor, caution against falling into 343 Quoting cases, caution to counsel in 214 B. Eaithby, Mr. remark of, on the advantage of a ready recollection in quoting cases 357 his suggestions for reading reports 366 Readiness and accuracy in applying legal principles 339 Reading, course find object of 122, 304, 324, 332 hours for 83 intellectual powers weakened, if reflection not brought to aid of 124 Dugald Stewart's observations respecting 124 should be steadily pursued 328 undue prosecution of particular topics to be avoided.. .... 329 systematic endeavors to remember what has been read, . 330 i \ 504 Index. Pabe Meading, DugaM Stewart on acquiring habits of aittention, training the memory, and associating the ideas 330, 334 eantion concerning haste and slovenliness in 353 reports, practical suggestions for. 366 Seal Actions, remodelled .....,.,...,....,..., 17 Real Property, revision and improvement of the law of ..,,...., . 7 Seasoning, powers of, how tested 100, 103, 236 science of 106, 130 early lessons in 109 Chillingworth on 109 Paley'a Horae Paulinse 113 Seoollection and thoiight, how to promote distinctness of. » . . 352 Records, assistance in reading of 128, 436 contractions used in printing them 128 Se^examinaUon of witnesses, discretion necessary in 294 Seference, how to acquire facility of 344 Comyn's Digest, the best book for 346 Seflection, intellectual powers weakened by reading without 124 caution concerning 353 necessary to aid the memory 332 Siformation, Lord Bacon on 29 Sefwmatory Institutions 24 Segrating, offence of 21 Selaxation, necessity for 86 Replevin, joinder of, with tort or contract, not allowed. H Reports, necessity of constant study of , 319 increasing voluminousness of 319, 370 reasons assigned for it 370, 371 noting up recent decisions specially important : 348 reading and exercises framed upon 366, 370 whether to begin with the earlier or later 366 Chancellor Kent's account of the old , 366 King James II's appointment of two reporters 372 Requirements, professional 69 of advocacy , 43 Responsibility of Counsel 207 should never be evaded in advising a client 391 of attorneys 38 Retainer, refilsal of. 218, 225, 241 Retiring Early, salutary effects of. 84 Revealed Truth, and morality, lukewarmness concerning, depre- ciated ^ 169 Rhetoric, Whately's elements of 130 Richardson, Dr. excellence of his dictioflary 132 Ridicule, consequent on incorrect pronunciation . ., 127 Rights and Wrongs, general rules respecting 27 Ritso, Mr. his opinion on solitary reading 301 Rivalry, (see The Bar) 32, 194 Index. 505 Faob. Bohertsm^ Dr. his history of Charles T .,..., 155 Home, uiid«r tile Empire , 147 political annals of. 146 JJomon adTocacy, later, corruption of.... 244 advocate incapable of making a contract for remuneration for his services 256 AnUquiHes ,. 126 Literature 126 History 138 Arnold's , 126,146 Keightley's 139, 156 Niebuhr's 142 Merivale's 146 Schmitz's 149 its obscurity... 146 parallel between it and Grecian 146 poinds of resemblance between it and English. ....... 147 Xaw, knowledge of, essential..... 126 Homilly, Sh- S. an advocate of common-placing 384 Rulers, history of the peoples' 139 Rules of Practice of superior courts, power of judges to make. . ... 3, 25 S. Sabbath, reverence for 84 Sale of 6roo(2s, principles regulating.... 305 ■ of a cow, whether any delivery or not.. 310 of cigars, a peculiar case concerning r 314 Satisfied Terms, assignment of 21 Saunders, Sir Edmund, his origiTi and progress. 205 rebuke of, when at the bar, for his subtle pleading, ..... 206 Sdimitz, Dr. (see Roman Histori/')......,. ...149, 156, 144 Sciences and Arts, early acquaintance with..... 177 technical terms must be learned. 179 means of knowledge of. 180 Se^-edttcation, Dr. Southey's hint to self-taught men Self-possession, advantages attending it • 120 Seneca quoted .,. 44, 83, 85, 183, 329 Sergeants-at-Law, former monopoly of abolished 227 oath of. 187,227 associated in circuit commissions 227 barristere formeriy compelled to assume rank of 228 statutory interference concerning. 229 Sessions, estimated annual expense of attending 50 Sidney, Sir P. remarks of, on selecting associates. 80 Slander, when counsel not liable to action 200 Slang and frivolity to be avoided by the student 129 Smith, Adam, his Wealth of Nations ■ 163 506 Index. Paoz. Smith, Mr. John William, an illustration of the evil of solitary reading • 301 his system of attending tobusiness in his tutor's chambers, 375 his rule never to undervalue an opponent 393 Dr., facilities afforded for studying classics by his diction- aries 125 his history of Greece , 141 his edition of the Decline and Fall of the Boman Empire, 153 Smyth, Professor, his lectures on Modern History 151, 154 on Political , Economy 162 Sodal Science, Lord John Russell's inaugural address at meeting. . 21 Society, dangers to student of yielding to encroachments of. 81 Solitary reading for the bar, caulion concerning ' 300 examples ■. 300 Mr. Ritso's observations on 301 the books best suited to one commencing the system .... 302 Solomon, warning words of 1 83 Sophistry, resort to, condemned 205, 236 South, Dr. on delibeiation in study 73, 326 conscience, what it imports 168 Southey, Dr. remark concerning self-taught men 120 history poisoned by party spirit 424 denunciation of Hallam's Constitutional History 429 Sovereignty, subject of, considered 161 Speech, privilege of 200, 385 Spelman, Sir H. deserts the study of the law in despair 320 afterwards returns, and succeeils -. 320 St. Germain, Christopher, capacity and endowments of. 184 his " Doctor and Student" 184 Stock Exchange, acquaintance with the business of, desirable 194 Student, introduction of, to Lord Coke 2 training 32, 298 elementary studies 33 reception into, the profession 34, 66 sources of encouargement 34 classical examination 305 benefit of lectures 303 voluntary examination 35 self-education 66 temperament 67, 70 time and attention heavily taxed 78, 82 considerations respecting health 45, 77, 82 pecuniary i-esources 47, 67, 321 prospects of business .' 51 patience 51,70 should form early, a fitting conception of duties of advo- cacy 53 character of, nominal 51 Index. 507 Paob. Student, Justinian's address 57 qualifying for the legislature 57 magistracy 58 demeanor of. 60 advantages of an university education 62 the real working 62 business habits : 64, 78 caution to parents, concerning 67 formation of legal character 69 besetting dangers 69, 70 obstacles to be overcome ; 72 difficulty, his best friend 72 hasty and impetuous temper unsuitable for the study of the law 73 jealousy in , ■ ■ ■ ■ 74 dangers of dissipation 77 intemperance 78 dress ' 79 companions 80, 373 society 81 " cramming " 82 reading 83, 122, 303, 324, 332 early rising 84 reverence for the Sabbath '. 84 holidays. ^ 85 decision of character generated by well-regulated am- bition 87 gossiping .90, 376 must have an inflexible regard for truth 90 value of a Christian character to 92 Chief Justice Wilmot a shining example 93 mental discipline of. 95 difficulties, how overcome 115 acquisition and use of general knowledge 1 18 St. Germain's advice to 183 Lord Eldon's letter to Sv/nday, reverence for .- 84 T. Taking Notes, difficult and responsible duty of 387, 388 Technical Errors, amendments of 12 Temper, sorely tried in practice of the law 70, 179 hasty and impetuous, unsuited for the study of the law . . 73 advantages' of. a good 76 command of, especially requisite when losing a case « 392 Tender, its relation to political economy 166 508 Index. Faob. Thought, capabilities for. , < . . .98, 131 essential,, requisite in student ..........,.,...<... 112 means of disciplining 115 distinctness of, how pronioted 352 Training for the bar 30 sad consequences of deficient 298 the late Mr. Cbitty's remark concerning. 299 of mental faculties ....112, 324 Trial hy Jury, in equity cases. 7 Triail of question of fact without jury .........<>...... 11 improved procedure at 16 summing up of evidence by counsel 13 Truth, regard for , .........90, 185 importance of its observance ........ i 198, 209 sovereignty of 208 justice reached only through ..... 217 duty of judge to aim at 225 dangers of indifference to 232 U. Vnconscientioumess, in advocacy .190, 214, 239 Undefended Actions, rarity of. 19 United States of America (see Amerieay. Universal History, by Lord Woodhouselee. 136 an extract from.... ..136,137 Universities, best introduction to the bar. . - 62 caution to students coming from 64 Usury Laws, abrogated 21 Utility, pseudo-philosophy of 169 y. Vacations, enjoyment of 85 Viva Voce, statements of facts and arguments, the art of, how to acquire 358 Voice, cultivation of the 392 Vulgarity in counsel to be avoided 392 W. Watts, Dr. on acquiring habits of close attention 325 Weights and Measures, ready knowledge of, essential 175 WensUydale, Lord, his canon defining the duty of counsel, after a prisoner's confession .' 204 Whately, Archbishop, his remai'ks on tlie study of Euclid 102 his logic... 106 political economy, object of. 162 observations of, on reading 124 Index. 509 ^ Paor, Wluitely, Elements of Ehetoric, its value 130 his Easy Lessons on Reasoning 109 his eulogy of Paley's Hores Paulina 113 his observation on the dangers of advocacy 232 cautions concerning attendance on debating societies 363 . WheweU, Dr. his Elements of Morality recommended- 161, 168 his remark on the reverence due to conscience 196 WUrmt, Sir J. Eardley, Christian character of « . . . 94 Blackstone's letter to him on his elevation to the bench. . 93 his judicial merits 93 his letter to his son 94 Wingale's Maxims, study of, recommended by Mr. Preston 294 " Wisdom of our ancestors," phrase of, when first used 17 Withdrawing a Juror, authority of counsel for 248 Withdrawing Record, counsel's authority for 248 Witness, improved system of dealing with 15 demeanor of counsel to 241 examination of, how conducted 288 hints for 289, 387 competency of 287 credibility of 287 leading questions to 290, 293 character, how impeached 294 cross-examination, a test of truth 277 how conducted 291 re-examination 294 Words, importance of critical knowledge of 132, 168 illustrated by reference to the recent reports 132, 168 the best authors for the study of J.32