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 The d gnity, service and prospects of th 
 
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Nebraska State Bar Association. 
 
 MR. J. M. WOOLWORTH'S ADDRESS. 
 
 1877. 
 
THE DIGNITY, SERVICE AND PROSPECTS OF THE 
 PROFESSION OF LAW. 
 
 AN ADDRESS, 
 
 Delivered on the Eighth day of January, 1877, 
 AT Lincoln, Nebraska, before the 
 
 Nebraska State Bar Association, 
 
 By J. M. WOOLWORTH. 
 
 OMAHA, NEBRASKA: 
 
 GEO. W. GRAY, LAW BRIEF AND JOB PRINTER. 
 
 1877. 
 
PUBLISHED BY REQUEST 
 
 OF THE 
 
 NEBRASKA STATE BAR ASSOCIATION. 
 
ADDRESS. 
 
 Mr. President, and Brothers : 
 
 The Constitution of this Association declares its 
 objects to be, '• to maintain a high standard of in- 
 tegrity among the members of the Bar of this 
 State, to cultivate social intercourse among them, 
 to encourage a thorough and liberal legal educa- 
 tion, and to assist in the improvement of the Law, 
 and the due administration of justice to all classes 
 of society without distinction." These objects 
 concern three classes — ourselves, the students-at- 
 law, and the piiblic. They aim to help us to be 
 honest, and to be brethren; to make the young fit 
 to be lawyers; and to secure for society just laws, 
 and their just administration. 
 
 The first of these objects, which concerns our- 
 selves, proposes to each of us personal elevation 
 of character, and to all of us the stimulus which 
 comes of association. It is not only the first in 
 the order of enunciation, and the first in import- 
 ance, but it draws the others after it. A Bar 
 which is possessed of high moral character, reliev- 
 ed at the same time by generous social qualities, 
 will, by the force of its example, compel abundant 
 preparation from those who seek its membership, 
 will advance the Law with the advancing needs of 
 the times, and enforce from the Magistracy the 
 full measure of its duty. If the Bar have not 
 such character, education for it will be useless, 
 
4 
 
 and a just administration impossible. You have 
 done rightly in writing what concerns ourselves 
 first, in the order of the objects of our associating 
 ourselves together. We do rightly, and in the 
 largest sense, in thinking and in speaking first of 
 ourselves, for the sake of ourselves, and, as well, 
 also, for the sake of others. 
 
 We have come up hither, each from his office, 
 his consultations and his causes; from engagements 
 which unceasingly recur, and fill with toil and care 
 every hour of every day of our lives ; engagements 
 which are as varied as the characters of the cli- 
 ents who seek us, and the troubles which bring 
 thena to us; engagements, therefore, in which mo- 
 tives high and mean, objects honorable and wicked, 
 methods worthy and base, plans wise and unwise, 
 mix in utter confusion; engagements, therefore, 
 the urgency and stress of which sometimes com- 
 pel to methods scarcely consistent with a high 
 standard of integrity, and render the administra- 
 tion of the laws to all classes, without distinction, 
 an object of doubtful possibility. 
 
 From these engagements, so severe, so con- 
 stant, so exhaustive of physical and mental and 
 moral strength, we come up here to refresh our 
 spirits by the delights of social intercourse ; to re- 
 new the enthusiasms of our first days in the pro- 
 fession, bj' the contemplation of the lofty principles 
 according to which justice must be administered 
 among men, and they be governed who are con- 
 
cerned in this service ; and to strengthen ourselves 
 anew for the temptations, trials, perversities and 
 exactions vi^hich shall fill our lives with strife, and 
 conquest over which will gain the highest award 
 and meed of praise, of Cato's definition of the 
 orator, Vir bonus dicendi ■peritus. 
 
 Selected from the honorable company of my 
 brethren, by a preference in itself, and in the man- 
 ner of it very flattering to my professional pride, 
 to address the Society upon this occasion of its 
 first anniversary, I find in the purpose of our 
 meeting and Association, a guide to a fit subject 
 of remark. I am bidden to decline a discussion 
 of any of the topics of technical lav/ which demand 
 our research daily at home, and upon which a 
 lesson of instruction might at another time and 
 elsewhere be profitable. I am directed out of the 
 hard, beaten, dusty road, in which we and our 
 clientage travel heavy laden, into the green fields, 
 by the still waters, and under the lofty forests, 
 where the din and turmoil of the vfork-a-day world 
 does not come. And I am not cautioned to speak 
 with the measured words and subdued tones and 
 severe methods of argument, but, rather, in the 
 free, generous, and, if it be possible, the stimula- 
 ting diction of an enthusiasm, which carries us 
 be5?ond the limits of a case to be tried, and the 
 interests of a client to be served, into the higher, 
 broader, nobler contemplations of the ideal Law- 
 yer — ^that figure, which, at the mention of the 
 
name — attorney, counselor, like the giant in the 
 Arabian-nights, rises towering before us, majestic, 
 august, benignant, and filling the eye with the 
 glory of its presence. 
 
 Having regard, then, to what we come from, and 
 to what we seek here, I propose to speak of the 
 dignity service, and prospects of the profession of 
 Law. 
 
 By this presence, formed largely of those who 
 are not of us, I am reminded of that popular pre- 
 judice against the profession of Law, which denies 
 it either honorable dignity or useful service. I 
 know very well, that I have little cause for appre- 
 hension, lest, like the ancient sophist who proposed 
 to write a panegyric on Hercules, I be met by the 
 objection, ^lis vitu-peravit ; for there is in many 
 quarters, an almost morbid jealousy entertained 
 against this honorable profession. Sir Thomas 
 Moore deferred to this prejudice, or himself held 
 it^ against the body which he adorned. He sa3's 
 in his Utopia, " They have no lawyers among 
 them ; for they consider them as a sort of people, 
 whose profession it is to disguise matters, as well 
 as to wrest laws ; and, therefore, they think it much 
 better that every man should plead his own cause, 
 and trust to the judge, as well as in other places, 
 the cHent does his counselor. By these means 
 they cut off many delays, and find out truth more 
 certainly. For, after the parties have laid open 
 the merits of their cause, without those artifices 
 
7 
 
 which lawyers are apt to suggest, the judge ex- 
 amines the whole matter, and supports the sim- 
 plicity of such well meaning persons, whom 
 otherwise, crafty men would be sure to run down. 
 And they avoid those evils which appear very 
 remarkable among those nations that labor under 
 a vast load of laws." And, to come nearer home, 
 it is recorded in history, that the Spaniards who 
 populated part of this new world, petitioned their 
 King at home, for a decree which should prohibit 
 the emigration to these virgin shores of Lawyers, 
 who would stir up strife among peaceable people, 
 confuse their minds with the perversities of their 
 quibbling, and draw from the misery of their quar- 
 rels the excessive wages of chicane. And our 
 Puritan Fathers showed a like prejudice. Their 
 theocratic system had no place for Lawyers, 
 whom the}^ classed with the Scribes, Pharasees 
 and hypocrites, against whom woes only v^ere 
 pronounced, and for whom there was no room in 
 this world, and no hope in the world to come. 
 And the novelists who pretend to draw portrait- 
 ures of social characters, and only pamper the 
 prejudice of their day, have painted the Lawyer 
 as an over-reaching, under-handed, scheming, false 
 being. Warren's Oily Gammon, Dickens' Uriah 
 Heap, and Mr. Vholes, are the fair samples of the 
 creations of these inventors ; and Wilkie Collins' 
 Sir Patrick is the splendid old fellow that he is, 
 only because he had retired from practice, and 
 
become a gentleman. There is one comfort ; 
 every other class of men find their like representa- 
 tive among the creatures of their fancy : for 
 every Mr. Tulkinghorn, the attorney and solicitor, 
 we can find a Rev. Chadband for the Clergy, and 
 a Mr. Dombey for the Merchants. 
 
 In speaking of dignity and service of the Law- 
 yer, I mean not that honor which comes to many 
 in political office, however conspicuous it may be. 
 It is very true that the training of his profession 
 fits the lawyer for a more public employment, and 
 that much of his life, being in the eyes of his fel- 
 low citizens, and displaying qualities, powers and 
 accomplishments, which seem to them to qualify 
 him for usefulness in the affairs of state, they call 
 him to what they esteem a higher place. Gentle- 
 men who are Lawyers by education fill the halls of 
 Legislation and seats of the higher magistracy. 
 This public recognition of the Bar, of the high quali- 
 ties of its members, their skill, their judgment, their 
 learning, their elevation of character, their general 
 superiority, both mentally and morally, is a testi- 
 mony to its dignity for which we may take to our 
 selves much self gratulation. But this is not the 
 dignity of which I speak — it is not the true dignity 
 — it is not the proper service of the Lawyer. In 
 truth, when he withdraws from the Bar to the 
 Senate Chamber, the Assembly room, or the seat 
 of the Magistrate, he exchanges his character, once 
 and forever. The more distinguished his service 
 
as a statesman, the farther it is removed from the 
 dignity of the Lawyer. The glory of the fame of 
 Webster — the Senator and Minister, has dimmed 
 the splendor of that advocacy, which for elo- 
 quence, learning, acuteness, was never surpassed. 
 I speak of the dignity and service of the Lawyer 
 neither dimmed by popular prejudice, nor illustra- 
 ted by other employments than his own. 
 
 Nor yet do I make any thing of the adventi- 
 tious circumstance, that the lawyer has, or once 
 had, a place in the highest classes of society. It 
 is true that he is fitted for such rank. Education, 
 culture, the nature of his employments, the daily 
 exercise in them of the power of captivating 
 speech and insinuating address, of the arts of per- 
 suation generally, the dwelling much with the 
 noble spirits of the past, and yet more, the dwell- 
 ing much with the noblest sentiments, emotions 
 and aspirations of the human heart, give him such 
 grace of manner, such a tone of the true gentle- 
 man, that he draws all men to him, and the best 
 seek him as a companion and friend. And at one 
 time, in the earlier part of the century, such rank 
 was his of right. It is said that in those times a 
 certificate of admission to the Bar was a patent of 
 nobilit)^ In New York, the Van Vechtens and 
 Bleekers ranked the Astors, the Jameses and the 
 Townsends; and what was true there, was true 
 everywhere. But in these days, when commerce 
 yields so much larger returns of profit, and when 
 
lO 
 
 the ostentations of money are so aggressive^ 
 conspicuous and captivating to the sense of the 
 public, and are at the same time impossible to the 
 lawyer, both because beyond his ability and 
 against his taste, he and his family seem in some 
 situations thrust behind the man of business. Mr. 
 Evarts must give place to Commodore Vander- 
 bilt. The fact has been pointed at as showing 
 that the profession oflaw has lost its former con- 
 sequence, distinction and estimate, and as if it 
 were a social phenomenon to be regretted and ex- 
 plained. To a degree, the fact is, that a lawyer 
 does not, simply by reason of his ofEce as such, 
 retain his former rank. But much consequence 
 remains to him. A gentleman, he is admitted 
 everywhere as the equal of gentlemen. While he 
 declines the homage paid to the ostentations of 
 suddenly gotten wealth, he values himself and is 
 valued by others, for what he is, rather than for 
 what he has. And this, still, in these commercial 
 days, gives him place with the best. But, as I 
 said, I do not tind the dignity of which I speak in 
 these adventitious circumstances of his social recog- 
 nition and consequence. Whatever they are, or 
 may be, or whatever they have been, and however 
 they may have declined, they are not elements of 
 that dignity, which consists rather in the ser- 
 vice which he renders, when in the very act and 
 plying of his own peculiar office, as an attorney 
 and counsellor at law — they are not elements, nor 
 
II 
 
 worthy to be mentioned as elements, of that dig- 
 nity with which he is clothed, because of the act 
 and plying of the office and functions of an attor- 
 ney and counselor at law. 
 
 Thus he is the advocate. The gift of eloquence 
 is the sum of all the gifts of God to man. In the 
 act of oratory, the whole man speaks. There are 
 put in exertion the reason to contrive and con- 
 struct the argument with more than the craftman's 
 cunning, and the imagination coloring each part 
 of the structure, to suit a purpose, with more than 
 a painter's art, and the will grasping the attention^ 
 convincing or subduing the reason, and captivating 
 the sensibilities. There are, too, the utterances of 
 the mouth, the lighting of the eye, the frown of the 
 brow or the smile of the lips, the glow of the face, 
 the outstretched hand, the form erect and firm, or 
 swaying in the general movement; and then there 
 is over all, and through all, and in all, words, voice, 
 gesture, figure, the fervor of excited emotion and 
 stimulated thought, till all the hearers thrill with 
 the electric shocks of the speaker's personal mag- 
 netism, and in the wrapt attention and varying 
 expressions of their faces, responsive to his periods, 
 they reflect his thoughts and emotions, " as face 
 answereth to face in water." 
 
 The highest form and service of this gift of 
 eloquence, is its use in advocacy. Here is no 
 toying with the sensibilities of the hearer for the 
 mere sake of sensational gratification: here is 
 
12 
 
 no remote, intangible, uncertain object, whose 
 gain or loss cannot be discerned or estimated: 
 here is no time for trifling with prettinesSes of 
 speech, or tickling the fancy by conceits, or dis- 
 playing mere smartness. Here is the client and 
 here is his case, involving for him fortune, or 
 name, or life: here is the adversary, watchful 
 of his opportunity : here the trial moving steadily 
 and inexorably on : here the jury that is to render 
 the verdict, and the Court that is to pronounce 
 the judgment : here is the advocate in the midst of 
 the serious, intense contention. He looks straight 
 into the eyes, he speaks straight to the conscience 
 of those twelve men, and with an art too consum- 
 mate to be visible, with a persuasion too subtle 
 to be discerned, with a force of intellect dominating 
 their reason, he strives to reach their verdict. 
 
 But besides all this, is a higher service. He 
 speaks not for himself, but for another. And this 
 it is that makes his glory supreme. Cicero says 
 in the De Oratore, " What so kinglike, so gener- 
 ous, so munificent, as to bestow help on those who 
 supplicate our aid, to raise the oppressed, and save 
 our fellow citizens from peril, and preserve them 
 to the State." And the Roman Emperor tran- 
 scribed the same sentiment into the volume of the 
 laws: ''' Armed Warriors, whose weapon was the 
 sword, were not the onl}' soldiers of the Empire. 
 Advocates, too, fought for Imperial Rome, when 
 they exerted the glorious gift of eloquence, in 
 
13 
 
 defending the lives and fortunes of their fellow- 
 citizens, in upholding the cause of the poor and 
 needy, and helping them to right who suffer 
 wrong." It is in this that the true dignity of the 
 advocate is ; not in speaking, ever so persuasively, 
 convincingly, eloquently, but in speaking for anoth- 
 er. To strip yourself of yourself, not to know, not 
 to have any interests, wishes, thoughts, passions, 
 of your own, to become not wholly another's, 
 but to become another, seeing with his eyes, 
 hearing with his ears, feeling with his heart, 
 seeing your home in his home coveted, j'our 
 name in his name reviled, your life in his life at 
 stake, and then to give to all his deepest thoughts 
 and feelings unutterable by him, the due expres- 
 sion, the vivid portraiture, the complete em- 
 bodyment in your oration, to do that, is to 
 be an advocate : that is the most wonderful aspect 
 of humanity. The transcendent thing in human 
 character is forgetfulness of self in remembrance 
 of others. And when it is exercised and displayed 
 in advocacy, then, without irreverence we may 
 say, " This corruption puts on incorruption, and 
 this mortal puts on immortality." 
 
 There is another function of the law3'er, in the 
 exercise of which he appears in an attitude and 
 aspect, in strong contrast to those of the advocate. 
 
 It is that of the counselor. Some times it is 
 assumed by a separate class. In Rome, its mem- 
 bers were called juris consuUi ; men, who, from 
 
inability to speak, or disinclination to the conten- 
 tion and noisy strife of the forum, declined its more 
 public display and applause. The advocates con- 
 sidered a knowledge of law, its technicalities, fic- 
 tions and refinements of secondary importance, in 
 comparison of those arts by which popular pas- 
 sions were caught and carried captive. The juris- 
 consults of the republic, on the other hand, were 
 deeply versed in the mysteries in which the early 
 law was shrouded from common knowledge, and 
 their successors of the Empire were profoundly 
 learned in the doctrines of a refined, exact and 
 elevated morality, which, built up by edict, decree, 
 senatus-consultum, institute and constitution, forms 
 that august structure of Roman law, and makes 
 the names of Rome and Law synonymous foreven 
 In the morning, each sat in the atrium of his house, 
 giving free access to all his clients, and dispensing 
 to them his opinion and advice in whatever mat- 
 ter they needed assistance, with a more than 
 judicial circumstance, and with almost more than 
 a magistrate's authority. Their dwellings were 
 styled " the oracles of the State." Says Cicero, 
 Est, enini, sine dubio. doviiis juris consuUi totius 
 oraculum civitatis. And in England, is a like 
 distinct branch of the profession. Its members 
 are called there special pleaders and conveyancers : 
 they pass their time immersed in Law, without 
 ever appearing in the Courts ; resorted to by par- 
 ties having great interests, and most of all by 
 
15 
 
 those advocates who fill the bar, and seem to form 
 the whole of the great profession. In our own 
 country the same division of labor is appearing ; 
 and chamber-counsel are, in the large cities, form- 
 ing a body of most able men, who, never arguing 
 a single case, from the secrets of their office, direct 
 the greatest negotiations and guard the greatest 
 interests. 
 
 The function, service and work of the Counsel- 
 or is in striking contrast to those of the Advocate. 
 Those of the one, are private; of the other, public. 
 The Counselor is immersed in books, the advocate 
 in trials. The former advises his client in the calm 
 retirement of the closet, unswayed by passion, 
 unmoved by incident, heeding little the circum- 
 stances which are apt to distract attention, and 
 distort the vision, but seeing through them all, 
 from the beginning to the end, the real object of 
 ultimate desire. The latter gathers around him, 
 the noise of conflict and the eclat of dramatic 
 effects, seizes accidents, moulds circumstances, 
 makes and directs excitements, and aims at the 
 immediate results, in which is all the success of 
 hand-to-hand contention. 
 
 The function of the Counselor is hardly less 
 potential than the magisterial authority, hardly 
 less august than the judicial state and circumstance 
 of the Roman- juris-consult, in the thronged atrium 
 of his house. The one as the other, is the " oracle 
 of the State." Here he sits ; and one by one they 
 
i6 
 
 who need the help of his wisdom come unto him ; 
 here, the sanctities of home are brought and their 
 desecrations revealed ; here, plans of commercial 
 ventures are brought, and their defeats and losses 
 laid bare ;,here, the wills of dead men'are brought, 
 and the device by which they were compassed 
 disclosed; frauds, conceived, in progress, and con- 
 summated ; inventions of novel contrivance pro- 
 tected by patent, and assailed by rivals ; books of 
 learning excluded from piratical trade for their 
 authors, and stolen from by plagiarist pretenders; 
 the splendid enterprises of this da}^ of great indus- 
 tries planned, matured, perfected — these are some 
 of the great concerns with which he deals. 
 
 There is no sorrow of life, no wrong of the in- 
 jured, no hope of the aspiring, no plan of enter- 
 prise, no contention of parties, no wish of the 
 heart, no pang of conscience, no hope of the soul, 
 but, at one time or another, is brought to the 
 Counselor, that he may help to right those who 
 suffer wrong. And he goes about among his 
 fellow men, laden with other's cares, full of other's 
 woes, weighed down by other's plans and hopes 
 and fears. 
 
 There is yet another aspect in which the Law- 
 yer appears yet more interesting ; in which his 
 attitude is not one consciously chosen, or assumed, 
 but into which he is thrust by the secondary, 
 remote, and consequential service which he ren- 
 ders : it is that of Legislator. 
 
17 
 
 Bentham invented the term, judge-made law ; 
 and his disciples have ever since delighted in its 
 use, analysis and explanation. He invented it to 
 indicate, in his violent way, his contempt of a cer- 
 tain expression, or mode of law : they use it, with 
 more respect for that product, as both good in 
 itself, and a true command of the Sovereign. 
 What he meant by this term, was that large body 
 of law which is not enacted by the Legislature, 
 and written in the statute book, but is worked 
 out by successive judicial judgments, and embod- 
 ied in the rules of judicial decision, and contained 
 in the thousand and ten thousand of volumes 
 which line the walls of your libraries. The term 
 answers sufficiently to his meaning, but is not 
 precisely descriptive of the fact. True, the judg- 
 ment, the rule of decision, is the enunciation of the 
 Judge; the form of words is his, the act of utter- 
 ing them is his ; his, the supreme function of 
 magistracy, which gives them authority. But 
 before that form of words is reached, the doctrine 
 formulated in it has been conceived, analyzed, 
 tested, and developed by a preceding process ; 
 his act of utterance, by which he stamps that 
 with his authority, is the result and end and 
 endorsement of a truth, v/hich has been already 
 approved to reason, and bears its own resistless 
 commendation. 
 
 All this precedent and necessary work is the 
 work of the Lawyer, I know what a fascination 
 
the office and dignity of magistracy has ; how we 
 attribute to it a potency and function, absorbing 
 all elements, however foreign in themselves, which 
 contribute to its state and consequence. But I 
 appeal to your own observation if I am not 
 right in saying, that, in truth, what Bentham calls 
 judge-made law, is that law which is wrought out 
 by the Lawyer, and merely phrased and stamped 
 with authority by the Judge ; just as the gold is 
 produced from the bosom of mother Earth, by the 
 miner, and only moulded into form and stamped 
 with the image and superscription of the govern- 
 ment, whose coin it thence becomes. 
 
 In the progress of society, in which alwaj^s new 
 forces, new interests, new modes are coming into 
 play, controversies of a new nature and complica- 
 tion are, of necessity, all the time, springing trp; 
 and to their solution, new doctrines or new applica- 
 tions of old doctrines are also necessar}^ Recall 
 such a new complication; for instance, one made 
 frequent and conspicuous in these last few years, 
 by the vast increase of corporations, which are 
 formed for every sort of business. Nothing was, 
 at the first, more likely than that these bodies 
 would in their action, overstep the powers and 
 purposes of their creation. Thej^ did so. Now 
 the question arose, how far, by so doing, they 
 became liable to those whom the}- injured. This 
 question did not arise in the consultation of the 
 judges: it arose rather in the mind of the Coun- 
 
19 
 
 selor, to whom the injured man brought his com- 
 plaint. Then an action was brought in Court. 
 Nor yet, did the function of the Judge come into 
 operation. But the study of the respective coun- 
 sel exhausted itself in research among, the prin- 
 ciples of law, already settled ; and, in reasoning 
 upon the nature of these novel forms of existence, 
 the corporations, the arguments, framed upon the 
 results of this study, were delivered on the one 
 side and on the other: each correcting, supple- 
 menting and establishing the other ; by the two, 
 the truth wrought out, and the ultimate fact 
 reached and made plain, and certain and absolute. 
 Then, the office and function of the Judge came 
 into operation, as I have said, simply to formulate 
 it, and give it credit. 
 
 Nor is even this all. If the Judge fail to do this 
 rightly, if his judgment shall not be approved, ac- 
 cepted and in its turn endorsed by the Bar, it 
 will be subjected to attack, analysis, correction. 
 The study, and the argument, and the contention 
 will go on, from judgment to judgment, until the 
 true rule will be evolved, and a just law be declared, 
 to which the Bar will give its acceptance, and 
 by which men shall govern themselves. Such, 
 in fact, has been the history of the doctrine of 
 Ultra Vires^ which is of growth within our mem- 
 ories. 
 
 Am I not right, then, in saying that the Law- 
 
20 
 
 yer is the Legislator — and that judge-made law 
 is the work of his hands? 
 
 Take an illustration from history. In the year, 
 1769, George the Third of England, by his let- 
 ters-patent, incorporated Dartmouth College in 
 the Province of New Hampshire. The Institu- 
 tion had grown to be a respectable, but not very 
 important Establishment, when, in 18 16, the 
 Legislature of that State passed an act which, in 
 effect, repealed the King's charter for the College, 
 incorporated Dartmouth University, and transfer- 
 red the property of the former to the latter. 
 Woodward had been the Secretary and Treasurer 
 of the College, and as such the custodian of two 
 books of records of the proceedings of the Trus- 
 tees, and four books of accounts of the financial 
 transactions of the corporation. Being elected to 
 the same offices in the new corporation, he was 
 removed from those he held in the old one. But 
 he retained these six books, claiming that, by the 
 act of the Legislature, they became the property 
 of the University. There was thus presented a 
 new complication of circumstances, and a new 
 question whether it was competent for the Legis- 
 lature to pass this act. The College on the one 
 hand, and the University on the other, had no 
 guide by which they could determine their rights. 
 Their resort was necessarily to Lawyers: there 
 was no other. And certain of them brought for- 
 ward that provision of the federal constitution, 
 
21 
 
 which forbids the Legislature of a State passing a 
 law which should impair the obligation of a con- 
 tract, and asserted that the charter of a Corpora- 
 tion granted by the Sovereign, was a contract 
 within the meaning of this provision; and there- 
 fore, that the act in question was void: while, on 
 the other hand, others denied that the letters- 
 patent of the King were a contract in any sense. 
 An action for the recovery of those six books was 
 brought to determine whether Woodward was 
 entitled to them, and in answering that question, 
 to determine whether the Legislature could do 
 what it had attempted. 
 
 Recall the scene of the argument of that great 
 cause. It was before the Supreme Court of the 
 United States at Washington. The old Capitol 
 had been burned by a ruthless enemy, in the last 
 war with Great Britain; the new Capitol had not 
 been built; the Court sat in a mean apartment, in 
 a retired street of the city, aside from the currents 
 of busy men. Marshall presides, supported by 
 Washington, Johnson, Livingston, Todd, Duval, 
 and Story, seven men, most illustrious in their 
 august office. Neither mace, nor lictors, nor 
 fasces, nor other insignia of their stately function, 
 save the simple academic gown, distinguish the 
 presence, or the occasion. 
 
 Webster, the greatest Lawyer, as well as States- 
 man, America ever produced, was of counsel for 
 the College. He was perfectly calm and self 
 
22 
 
 possessed, going through his argument in the tone 
 of easy and dignified conversation. Now and 
 then he rose, for a sentence or two, above the 
 placid level; his eye flashing, his voice swelling 
 into a fuller note, but instantly checked as unsuit- 
 ed to the place, and sinking to the even tones of 
 pure argument. The Great Counsel went through 
 his argument with the stately, measured, certain 
 tread of a giant, stalking straight to the object 
 for which he set out. His last words aptly illus- 
 trate the fact on which I was remarking. Having 
 completed his argument, Mr. Webster stood, for 
 some moments, silent, before the Court, while 
 every eye was fixed intently upon him. The 
 deep emotion of a faithful son pleading for his 
 Alma Mater ^ heaved his breast. The venerable 
 Chief Justice leaned far forward in his seat, ab- 
 sorbed in the awful presence; Story's fingers, hold- 
 ing the pen for the notes, trembled in the agita- 
 tion of the occasion; the other Justices lost all 
 consciousness of office, dignity or place, as they 
 bent with one ear to catch the last words. At 
 length,, addressing Marshall, he said: "This. Sir, 
 is my case. It is the case, not merely of that 
 humble institution ; it is the case of ever}' College 
 in our land. It is more; it is the case of every 
 eleemosynary institution throughout our country; 
 of all those great charities, founded by the piety 
 of our ancestors, to alleviate human miser}' and 
 scatter blessings along the pathway of life. It is 
 
23 
 
 more; it is, in some sense, the case of every man 
 among us, who has property of which he may be 
 stripped; for the question is simply: shall our 
 State Legislatures be allowed to take that which 
 is not their own, to turn it from its original use, 
 and apply it to such ends and purposes as they 
 may see fit ? 
 
 " Sir, you may destroy this little institution: it is 
 weak; it is in your hands. I know it is one of the 
 lesser lights in the literary horizon of our coun- 
 try. You may put it out. But you must go on 
 with your work; you must extinguish one after 
 another, all those great lights of science, which for 
 more than a century have thrown their radiance 
 over our land." 
 
 In those few and simple, but most grand words, 
 you see that the great Lawyer felt and knew that, 
 in pleading for the school that fitted him to play 
 his splendid part in the world's drama, he was 
 pleading also for all schools, all learning, all 
 science, and all property. He saw, and knew, 
 and felt, that he was speaking less, infinitely less, 
 for those six books of records and accounts of 
 trivial value, whose loss would be onty a slight 
 inconvenience, than for a salutary rule of property 
 for all Amei-icans forever; nay, more, for a para- 
 mount principle of government of Sovereign 
 States forever. 
 
 The Court took a decent interval to prepare its 
 judgment. It re-assembled in the mean appart- 
 
24 
 
 ment, aud Marshall read that opinion so luminous, 
 so easy to be understood, in which the Court held 
 with the peerless Webster, that those letters-pat- 
 ent of George the Third, were a contract of invio- 
 lable obligation forever. He gave the eternal 
 stamp of the approval of the magistracy to the 
 doctrine of the Lawyer's conception, expHcation, 
 and demonstration. That doctrine of Webster 
 passed then into the institutes of the Law. A 
 thousand cases have been decided by it: millions 
 upon millions of property are held by the tenure of 
 it to-day. 
 
 And now we turn from the present to the 
 future: from the contemplation of the grand 
 figure of the Lawyer, whether in the attitude of 
 Advocate, Counselor or Legislator, to the view 
 of that posture which he will hereafter hold, among 
 the forces of society. 
 
 Various classes of men have successively held 
 dominant places in the world. At one time, it 
 was the Priest, who sat in the seat of magistracy, 
 and at the Council Board, and, at the same time, 
 held in his hand the individual consciences of men 
 and dispensed the mysterious gifts of the sacer- 
 dotal function. But secular influences have 
 remitted him to a private oflice, and preserved for 
 him only an obedience which is voluntar}'. Then, 
 it was the orator, who led men whither he would, 
 and held over their untrained passions, a rule 
 imperial, imperious and absolute as the dominion 
 
25 
 
 of a Caesar. But as men's reason matures, 
 their impulses become sluggish; so that they 
 respond slowly and partially to the appeal of the 
 orator. He who would now speak with effect 
 must inform the public intelligence, and address 
 the sense of interest. The day of oratory has 
 passed away; the day of argument has come. 
 Then, it was the newspaper which held sway. It 
 distilled the doctrine of its advocacy in frequent 
 paragraphs, of such brevity, directness and assur- 
 ance, that its readers quickly caught the point, and 
 their minds yielded to the impression, as the rock 
 is worn by the long dropping of the water. I well 
 remember when the Albany Evening Journal and 
 the Albany Argus, were oracles to the Whig and 
 Democratic parties of New York. Those were 
 days when Thurlow Weed and Edwin Croswell 
 were more than Kings over their parties in that 
 State. But the sceptre has fallen from the hands 
 of their successors. Men now read the columns 
 of news; they give little heed to the columns of 
 editorials. The Lawyer is now advanced to the 
 place of power. What the Priest, the Orator, the 
 Editor has been, he has become, and is hereafter 
 to be. 
 
 A few words are enough to show why this is 
 so, and why it must become more and more so 
 hereafter. You know, without my taking time to 
 enlarge upon the fact, how, within the past few 
 years, a thousand inventions have made machin- 
 
26 
 
 ery do the work of armies of human hands ; how 
 a thousand new enterprises have extended and in- 
 tensified man's operations; how a thousand new 
 industries have filled every part of the land, and 
 infinitely quickened the activities of society. All 
 this multiplication of forces and energies and pro- 
 ducts have, at the same time, created new inter- 
 ests; and, with them, also, new conflicts of inter- 
 ests; making the world not only a busy world, but 
 a world busy with the collisions and contentions 
 of all these new conflicting interests. And into 
 all these collisions and contentions, Law must 
 come to compose the strife, or Society will be dis- 
 solved in the midst of them. Law, which is omni- 
 present and omnipotent, must, in the increase of 
 the interests of progressive Society, itself increase 
 with equal steps. Its processes, principles, doc- 
 trines, rules, must multiph" in number, in intrica- 
 cies, in refinements, in application, so as to meet 
 the exigencies of new, unforeseen and unsolved 
 conditions and circumstances. The expansion of 
 the Law, during the last twent3''-five years, has 
 been amazing. The number of volumes which 
 have been published in this country alone exceeds 
 three thousand. And this expansion has been 
 not only in the bulk, but the substance of the 
 Law. Single rules and doctrines have been sub- 
 jected to so many new applications, and single 
 classes of parties have been placed in so man}' 
 new relations, that they have required separate 
 
treatment. Ever}^ topic has grown into a 
 great department of the legal science, and its 
 grand divisions have reached proportions too large 
 for the embrace of a single view; and in order to an 
 exhaustive knowledge of them, they must be stud- 
 ied in detail. The doctrines of Ultra Vi'res, estop- 
 pel, taxation, and statutory construction, the Law of 
 Railroads, Receivers, Municipal Corporations and 
 Insurance, are examples of a multitude of subjects 
 of new, elaborate and voluminous treatises. The 
 Law is fast outgrowing the apprehension of all 
 laymen, and is becoming the exclusive possession 
 of its professors. Every man having large and 
 varied interests, must soon learn to distrust his 
 own competency, and repose himself on the judg- 
 ment, the learning and the fidelity of his Counsel. 
 In every complication of affairs, in every novelty 
 of relations, in the case of every interest of mag- 
 nitude, the Lawyer must be present, as the sole 
 guide, arbiter, oracle. Sir Henry Maine, describ- 
 ing the present condition of English Law,' says 
 that " it is a system of collossal dimensions. The 
 community which immediately obeys it, has ceased 
 to profess to be acquainted with it, and consents 
 to be dependent for a knowledge of it on various 
 classes of experts." 
 
 I do not say this in any spirit of exultation. I 
 would not delight in the aggrandizement of my 
 profession at the expense of other classes. I 
 simply state a certain fact. I say that if inven- 
 
28 
 
 tions are to multiply agencies, if enterprise is to 
 extend in new directions, if the forces, modes and 
 appliances of commerce are to quicken, extend 
 and intensify social life, in short, if our complex, 
 refined, artificial civilization is to become more 
 and more complex, refined and artificial, then it is 
 only a resulting fact that the Law should equally 
 extend its applications, increase its doctrines, mul- 
 tiply its processes, and the dominance of the Law- 
 yer be more and more assured. That is one view 
 of the future of the grand profession. 
 
 But this process of growth can not stop here. 
 It must go on, until it reaches a limit, beyond 
 which it will be intollerable. Multiply the in- 
 crease of the bulk and substance of the Law of the 
 last twenty-five years, for a few quarters of a cen- 
 tury more, and they will have outgrown the com- 
 petency even of their professors, and its weight 
 and pressure will crush Society. 
 
 Then the great evil will demand a cure. Some 
 cure will be a necessit}', and, therefore one will be 
 ascertained and applied. And here will be the 
 grand service of the Lawyer; for he alone, of all 
 the forces of Society will be competent to contrive, 
 it, and to attend upon its operation. 
 
 That cure is a Code; not a Code of procedure, 
 but of all Law. It is the only cure for the evil 
 which is inherent in our civilization. We are not 
 without examples. The Code Justinian, the Code 
 Napoleon, the other continental Codes, framed on 
 
the pattern of them, the Code for India, construct- 
 ed largel)' by Macaully and Stephen, a project for 
 a Code made in New York, never adopted there, 
 but lately enacted in California, are guides and 
 instructors. Not that there are not difRculties; 
 they are man}' and great: but they are not insu- 
 perable; and as they must, so they will be over- 
 come. 
 
 The English law, far more than that of France, 
 before the Revolution, when a Code was project- 
 ed, or, than Rome, in the time of Justinian, is well 
 adapted, both by its nature, structure, and form 
 for codification. Its scope and province is well 
 ascertained, its doctrines are based on natural 
 principles, and drawn out by logical processes. 
 The super-incumbent weight of its authorities is 
 riven in many places, and irradiated by the all- 
 pervading light of reason. In spite of fiction and 
 worthless logic and curious antipathies and diver- 
 sities of form, process and jurisdiction, the genius 
 of unity has for hundreds of years welded the 
 whole body of Law together, into the most un- 
 broken and consummate consistency. To its 
 professors, in the midst of all its incongruities, 
 anomalies and uncertainties, it is a harmonious, 
 self-consistent mass, peculiarly capable of being 
 translated into an organic Code. 
 
 Already the construction of a Code of English 
 Law has become the subject of discussion, not only 
 in respect of its necessity and possibility, but of its 
 
3° 
 
 scope, form and method. Almost thirty years ago 
 Austin sounded the note of preparation. For a 
 decade the best minds in England have been in- 
 tently occupied with it. There has lately been 
 published in England, a digest of the Law of Evi- 
 dence, by Stephen, a very eminent Lawyer, which 
 is an attempt at codification in respect of that one 
 topic. The whole subject is brought within one 
 hundred and thirty pages, and divided into fifteen 
 chapters, and one hundred and thirty short articles. 
 Dealing as well with statutes as decisions, the 
 author puts forth their meaning in the shortest and 
 simplest language, arranged in articles which are 
 illustrated by examples taken mostly from decided 
 cases. Other authors will doubtless be encour- 
 aged by this example, to apply the same method 
 to other chapters of the Law; and then the work 
 will proceed, and the way be prepared for the 
 consummation of a Code, which shall reduce the 
 overgrown mass of law to small bulk, to intel- 
 ligible form, to scientific and consistent shape. 
 The work is great, but it is within the competen- 
 cy of human power; it is possible, it will be necessa- 
 r}^, and therefore, it is certain to be done. The 
 destiny of the profession is, first, to see the Law 
 become too complex for the apprehension of any but 
 its professors, and afterwards, to see it become too 
 vast for the intelligence of its professors. Then, 
 its supreme dignity and service will be displayed 
 
31 
 
 in its work of reducing the Law to the compass, 
 consistence, and symmetry of a Code. 
 
 I have sought to place before you a view of the 
 dignity and service of that grand profession of 
 which we are members, and to advance whose 
 interests we have associated ourselves together 
 in this Society, and have come up here to this 
 meeting; and of the greater dignity and service 
 which lies in prospect before it in the years to 
 come. I have done so in the hope of reviving the 
 enthusiasm of our earlier years; and of stimulat- 
 ing one another to high and noble ambition. 
 
 One thought remains. 
 
 We have been looking upon the grand figure 
 of the ideal Lawyer. We have been filling our 
 eyes with a view of the profession of Law. 
 
 How inconsiderable, in comparison, seems the 
 work of the individual; how insignificant the figure 
 of each of us: how vast the mass, how small the 
 atom. It is a melancholy reflection, how small a 
 space any one of us occupies at the Bar; how small 
 a work any one of us does; and how brief will be 
 the memory of him, when his work shall be done. 
 The day dawns, and the light advances, and the 
 heat waxes, and the grain and the tree and the 
 flower grow, and man and beast and all the world 
 of living things move and labor and thrive; and 
 then the heat subsides, the light fades, and the 
 night comes, and all things are at rest; and the 
 day is swallowed up in eternity. So it is with the 
 
32 
 
 Lawyer, though his light fills the world, and his 
 strength is as the Sun. So will it be with each of 
 us. Let us exult in the dignity of our profession; 
 let us exercise ourselves in its service; let us ad- 
 vance the glory of its prospects; it is grand, hon- 
 orable, good; and we, if worthy, shall partake of 
 its glory and value and honor. 
 
 <^^': 
 
 14