1 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell Universil, And Presented February 14, 1893 IN HEnORY OF JUDQE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KF 272.W2ri87r"">' """^ * ''niiil™'i.,SIIj!,.,R,Hf''''3' introduction to 3 1924 024 516 498 Cornell University Library The original of tliis bool< 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/cu31924024516498 A POPULAR AND PRACTICAL INTRODUCTION i I ( , I 'i -■ LAW STUDIES. SAMUEL \yARREN, OF THE INNER TEMPLE, D. C. L. OXON, F. R. S., ONE OF HER majesty's COUNSEL, ETC. EDITED, WITH ALTERATIONS AND ADDITIONS, BY ISAAC GRANT THOMPSON, COUNSELLOR AT LAW. ALBANY : JOHN D. PARSONS, Jr., LAW PUBLISHER. 1870. \^ Entered, according to act hi Congress, in the year eightteen hundred and seventy, by JOHN D. PARSONS, Jr., In the Clerk's office of the District Court of the United States, for the Northern District of New York. FRANCIS RISING, Esq., COUNSELLOR AT LAW, -AS A SLIGHT TOKEN OF ; ESTEEM AND RESPECT, THIS EDITION IS INSCRIBED Br THE EDITOR. PREFACE. The first edition to Mr. Warren's " Introduction to Law Studies" was published in 1835, and at once met with a most flattering reception. Its animated, forcible and often picturesque style; its familiar but pertinent illustrations; its utter frank- ness and independence ; won for it the highest commendations of the critics of the day as a literary performance — while its sterling common sense, its earnestness and honesty of purpose, and its sound, practical counsel — the manifest result of the writer's own experience " told as if still warm with the feehngs which accompanied the first acquisition of it for himself " — made it of inestimable value to every law student who felt the need of an experienced instructor and a judicious guide. Ten years later a second edition was issued, considerably enlarged and partly rewritten. In 1863, a third edition appeared, enlarged to such an extent as to fill two thick octavo volumes. Of this edition, the gi eater portion was devoted Vi Preface. to an elementary treatise on the several depart- ments of English law and jurisprudence. This I have omitted as likely to prove of no particular advantage to the American student. The present volume is not based entirely on either of the three editions mentioned. I have taken the liberty to select from each such chap- ters and parts of chapters as were deemed of most interest and value, and have not hesitated to make such alterations, omissions and additions; as in my judgment were deemed necessary to :adapt it more nearly to the wants of the Ameri- tcan student. I am aware that this method of «dealing with an author's work is open to criti- -cism, but I have been led to adopt it by a con- viction that I could thus make the work of more -practical value to those for whom it is intended. I have added a chapter " On the Study of Torensic Eloquence " — a subject which the author ■ entirely omitted — but one deserving of the careful .attention of every student of the law. Although this chapter has no great claim to the merit of 'Originality — being little more than a collection •of some of the precepts and suggestions of the ■masters of the art — it is hoped that it may be "found of some service to those desirous of im- Tproving themselves in the oratory of the Bar. Preface. Vll Of the merits of the author's work it is hardly- necessary to speak. It has won for itself a posi- tion and reputation that puts it beyond the need of commendation. Since its publication, other books have been written having in view the same object; but it stands, not only unrivaled, but the only one of real, practical utility. It is to-day, as a writer in Blackwood's Magazine has justly observed, " the most complete beginning book that was ever put into the hands of a young person seeking or entering a profession." Mr. Warren has not, like too many guides, contented himself with pointing out from a dis- tance, to the youthful pilgrim, the swelling domes and glittering minarets of the city he is toiling to reach, but has gone down with him into its busy streets, has made him familiar with the dwellers therein, their ways, their needs, their very- speech, and the temper, the habits, the discipline necessary to achieve success in that great capital of intelligence. He has not given vague advice " so generalized that it spreads like a mist before the inquirer," but good, practical information of just what to do and how to do it — information that can be gath- ered from no other book, and from no one man who- has not made the subject one of especial VIII Preface. attention, and taken pains to collect information from various quarters. The student who shall thoroughly read and carefully follow the information given, will set forth on his way " sound of heart, and with as clear a view of the path before him as it is possible to present." I. G. T. Troy, April, 1870. PREFACE To THE First English Edition. The design of the following work, and the motives of the author in undertaking it, are explained at so much length in the INTRODUCTION, as to leave him little else to do here than bespeak the indulgence of his professional brethren. It was not without much hesitation, and distrust of his fitness for such a task, that he took upon himself to advise on the choice of the law as a profession, and on the prosecution of it as a study. But for the encouragement he from time to time received from numerous, able and experienced friends, in ail depart- ments of the profession, — whose valuable services he takes this opportunity of thankfully acknowledging, — he should long ago have abandoned his task in despair, The subject he has chosen is so extensive, the design so difficult of execution, and the opinions he has had to consider so conflicting, that he cannot review his labors without a consciousness that many imperfections may be detected in them, if subjected to keen and unfriendly scrutiny. Hostile criticism, however, he will not anticipate from the liberal members of a pro- fession to which he shall ever esteem it a very high honor to belong. Should, on the contrary, his efforts X Preface. to smooth the rugged access to legal science, and exhibit to the public a just and interesting delineation of the English Bar, prove successful — should this, his humble contribution to the stock of elementary pro- fessional literature, be accepted, the time and pains he has expended upon the ensuing pages will be richly recompensed. S. W. 12, King's Bench Walk, Inner Temple, ) April, 1835. j CONTENTS, CHAPTER I. Preliminary View ok the Profession, i CHAPTER II. On the Choice of the Legal Profession-, 15 CHAPTER III. Students, their Character, Objects, Pretensions AND Prospects, 36 CHAPTER IV. General Conduct, - - - 48 CHAPTER V. Mental Discipline, ... . . ^6 CHAPTER VI. General Knowledge, ..... gj CHAPTER. VII. On the Study of History, - - 103 CHAPTER VIII. On the Study of English History, . 121 CHAPTER IX. Political Economy, 137 CHAPTER X. On the Study of Forensic Eloquence, 142 CHAPTER XI. Ethics of the Bar, 173 CHAPTER XII. How the Law Student should commence his Studies, 246 XII Contents. CHAPTER XIII. Outline of a Course of Law Reading, - - 276 CHAPTER XIV. Method and Objects of Law Reading, - - 320 CHAPTER XV. How to acquire a Facility of Reference, - 341 CHAPTER XVI. How TO ACQUIRE READINESS AND ACCURACY IN THE APPLICATION OF LEGAL PRINCIPLES, 346 CHAPTER XVII. Hints for facilitating the Mastery of Complicated Cases, 352 CHAPTER XVIII. How to promote Distinctness of Thought and Recollection, -- - 356 CHAPTER XIX. Importance of retaining the Names of Leading Cases, 362 CHAPTER XX. The art of effectively stating, viva voce. Facts and Arguments, - 365 CHAPTER XXI. The Reports, reading of, and exercises upon, 372 CHAPTER XXII. Conduct in Chambers, .... - 378 CHAPTER XXIir. Going down to Court, - 384 CHAPTER XXIV. Commonplacing, 388 CHAPTER XXV. Hints to Young Counsel, 394 IS"TEODUOTIOI^ TO LAW STUDIES- ■ CHAPTER I. Preliminary View of the Profession. No profession requires for its successful prosecution such sedulous and scientific initiation as that of the Bar ; for it is notorious that its members must depend, from first to last, almost exclusively upon their per- sonal qualifications. A professional " connection " is certainly a vast advantage as securing both early and extensive employment ; but of what avail if it bring business for the discharge of which its possessor is incompetent? A connection serves, in such a case, only to advertise, with fatal effect, his ignorance and presumption; causing it to be reported of him who has so signally disappointed his friendly clients : " Hie niger est ; hunc to, Romane, caveto." In almost every other profession a man may succeed as it were by deputy — may play Bathyllus to Virgil — may rely on many adventitious circumstances, but at the Bar it is far otherwise ; " Proprio marte " is the motto of all ; there the candidate must strip, take his place at the post, and start fair with his competitors — the honorable son of the earl straining and panting 1 2 Introduction to Law Studies. beside the ignoble son of the peasant — in the desperate race towards the goal of professional distinction. What signifies it to the student that " the blood of all the Howards " rolls in his veins if he is distanced or per- haps knocked up at starting, but to enhance the agonies of defeat? Personal fitness, as far at least as concerns the prac- titioner, 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 be- tween the two. In the latter mala praxis may have existed to a serious and even fatal extent, without having been detected, or even suspected, by the victim of it, or those interested in his safety. The mischief is done ; but the evidence of it moulders in the dust, except where timely misgivings may have averted the consequences of inexperience, ignorance or unskilful- ness. 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 may dis- approve ; 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 always be reckoned on ; for it is a ceaseless scene of gladiatorship, involving personal skill and strength.* And this per- * "I have chosen for my sons, or rather, they have chosen for them- selves," continued Mr. Percy, "professions vifhich are independent of influence, and in which it would be of little use to them. Patrons can Preliminary View of the Profession. 3 sonal fitness, moreover, is inexorably exacted by a profession full of peculiar and extraordinary difficulty in the acquisition and use of its learning. In the pregnant language of Lord Coke, speaking, however, in times when law was studied and practiced in a style somewhat different to that of the present day, " the study is abstruse and difficult, the occasion sudden, the practice dangerous." That "occasion " is at once the opportunity of the capable and the pitfall of the inca- pable ; or it may be said that with its touch drops the veil from the one and the mask from the other. Let any one reflect for a moment on the " variety almost infinite," to quote again from Lord Coke, of rights and liabilities from day to day soughfto be enforced and resisted, with the utmost tenacity, in respect of all the diversified interests, actions and conduct of mankind. How apparently trivial the exigency, unexpectedly challenging the application of recondite knowledge, the profoundest principles, the most refined distinctions of jurisprudence. On a recent occasion, for instance, an action was pending in the Court of Common Pleas for the recovery of some deposits paid on shares in a Mining Company. That action was of the most ordi- nary character ; but at an advanced stage of it one of the defendants suddenly applied to the Court to stay the be of little value to a lawyer or physician. No judge, no attorney, can push a lawyer up beyond a certain point; he may fise like a rocket, but he will fall like the stick, if he be not supported by his own inherent powers. Where property or life is at stake, men will not compliment, or even be influenced by great recommendations. They will consult the best lawyer and the best physician, whoever he may be." — Patronage, by Miss Edgeworth — a tale worthy the perusal of the youthful student. 4 Introduction to Law Studies. proceedings, or strike his name out of them, on the ground of his exemption from suit as minister of a foreign sovereign. This step plunged counsel and court into a deep discussion on the principles of inter- national law applicable to the position of ambassadors. Page after page might be readily filled with similar instances ; and if this be so, need it be observed how inconceivably dangerous and absurd it were to treat lightly the acquisition and application of the requisite knowledge ? " The sparks of all sciences in the world," said Sir Henry Finch, " are taken up in the ashes of the law." All the arts, occupations and even the lightest amusements of society, are incessantly supplying occasions.for appeahng to Courts of Justice, necessitating a mastery of minute details often of an intricate and abstruse character, and frequently with but little time for preparation. Surely it is a melancholy fact that this should be the profession so signally destitute of any appropriate, adequate and uniform system of preparatory profes- sional education. Even thus it was in Roger North's time, who com- plained that " of all professions in the world that pretend to book learning, none is so destitute of institution as that of the common law ; each student is left to himself, to enter at which end he fancies, or as accident, inquiry, or conversation prompts. And such as are willing," he proceeds, "and inquisitive, 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 Preliminary View of the Profession. g gathered, whereby a gentleman finds how to make a better use of his time ; and of those who are so civil 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 advise, for most enter the profession by chance, and all his life after is partial to his own way, though none of the best ; and it is a matter of great judgrnent, which requires a true skill in books, and men's capacities, so that .1 scarce think it is harder to resolve very difficult cases in law, than it is to direct a young gentleman what course he should take to enable himself so to do." It is painful to have to acknowledge that the fore- going passage but too nearly represents the state of things existing in the middle of this advanced, advanc- ing and ambitious nineteenth century. In spite of honest effort to redress so great an evil, students are still driven to rely chiefly, if not altogether, on their own desultory and often ill-directed efforts, 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 har- assed and perplexed pilgrim to approach the shrine of his devotion by a different route — scarcely 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 suc- ceeded and splendidly, as their own teachers," may it 1* 6 Introduction to Law Studies. not be replied, "True, but at what needless and exces- sive cost of time and labor !" What health, what prospects, what lives, wasting away under that hope deferred which maketh the heartsick, have been devoted and sacrificed uselessly ! Look again at the heavy- hearted throng of those who have failed, but who, properly guided, would have succeeded. How many more thousands, and those, too, of the most highly gifted, have either been deterred from entering the legal profession, or after a brief unsatisfactory attempt to cope with its difficulties, abandoned it in despair ! How many are yet doomed to the same fate notwith- standing the incessant publication of treatises on specific departments of legal science, and even, above all, the rapidly improving character of chamber tuition ! An early disgust, if unfortunately contracted, often throws a hateful air over the whole pursuit. " The spectre that frights so, stands at the entrance ; when that is put by, the walk will be easy and at last pleasant."* Though the Bar presents incomparably the most exciting and brilliant scene of action afforded by any of the peaceful professions, its first access is frequently disheartening, ambitious and confident though the student may be. His heart may be " hot within him," but "while he is thus musing, the fire" — goes mit. Let us suppose him destitute of a brilliant college acquaintance (which, however, even if he had, he must drop, as the serpent casts its splendid skin), an eager yet " lonely, unobtrusive soul," acquainted with scarce * Roger North's Discourse on the Study of the Law, p. 6. Preliminary View of the Profession. 7 a single member of the legal profession, with barely a competence, nay, his daily bread possibly depending upon his daily exertion — no uncommon case. His eye is as bright with intellect, his heart swells with as pure and strong an ambition, as that of his wealthy or aristocratic rival, who, flushed perhaps with academic honors, confident amid troops of friends, is borne to the scene of contest with the cheering assurance of rapid distinction. The former, poor soul, has no kind friend to take him by the hand — no one cries " God bless him," except perhaps a little circle of trembling relatives, whose hearts are very heavy for him. What is he to do ? Who is to chalk out his course ? He has not the means perhaps to enable him to spend a year or two at a law school, and the result is that he enters some attorney's office, where he is mainly left to his own guidance without any definite notion or direction as to the course he is to pursue. There, even with the best, he must expect to be in a mist for months ; and when it is cleared away, he may yet see but a dreary prospect before him. Surely, now, to such a person, a publication like the present, containing, it is hoped, a plain and intelligible chart of his course for some years, pointing out where lie the shoals and sunk rocks and where the safe waters ; showing him in short how to approach the legal profession — what to do, how to do it, and what to leave undone ; combining all useful practical information, drawn from approved sources, with the results of individual experience, would not have been unacceptable. 8 Introduction to Law Studies. It will be the author's endeavor, in the ensuing pages, to enter heart and soul into this " labor of love " to become the humble and vigilant pioneer of the pupil, levelling the road wherever necessary and practicable, and throwing up, from time to time, such works as shall not fail to beat down all opposition. Let it, however, be distinctly understood that this work pre- supposes itself in the hands of one who is downright ill earnest in embracing our profession — who will not coquet with it or skim, swallow-like, over its surface. He who is inclined to act thus will find this work a very sad and tiresome affair ; he had better exchange it for some of the light literature of the day. Let him rest assured that there is no royal road to the knowl- edge of law, any more than to that of the mathematics. No indolent, luxurious stranger can saunter into the legal garden and pluck the fruit that has been reared by the assiduity and skill of another, for " whoso keepeth the fig-tree shall eat the fruit thereof." He cannot purchase it at any price ; but must himself pre- pare the soil, plant the tree, and tend it to maturity. Verily, " by the sweat of his brow shall he earn " his legal livelihood. " Nil sine Magna lex labore dedit mortalibus /" The author cannot close this first section of his labors without adding two general observations, which it may be useful for the practical reader to carry along with him. They relate to the peculiar difficulties besetting the commencement of the legal profession ; and the principle of that system of study recommended in the ensuing pages. Preliminary View of the Profession. 9 It is a trite remark, that the entrance upon any study- is generally very irksome and discouraging. This is eminently the case with legal studies; and its pre- liminary difficulties have two special sources : first, in the nature and number of its technical terms. The poor tyro can stir scarce a step, without encountering expressions either altogether new, or used in a sense totally different from the one to which he has been accustomed. True, he may have at hand both a law dictionary and an able tutor ; but he is wearied by the incessant necessity for appealing to them, and distracted by the minuteness and multiplicity of the information they afford. He is apt to get irritated and desponding ; with "the vast, the unbounded prospect," lying before him, he feels that he can make no sensible progress. He finds it impossible to recollect distinctly a tithe of what he is told ; and yet is aware that this distinctness is a capital requisite — a sine qua non, in legal matters ; that a single half-understood, or misunderstood expres- sion, will carry after it a film of indistinctness which will obscure every subject in which that term is used. "The task of unlearning' the import of words, the young student is already acquainted with," observes Locke, " and affixing to those familiar terms new and precise ideas, is one of no small difficulty, and requires, not only the strictest attention, but constant care and fre- quent repetition." This is specially true of legal terms. Mr. Risto has forcibly observed, " that the reason we have so much seeming obscurity to contend with, at least upon our commencement of this study, is, not the want of evidence in things, but the defect of prepara- 10 Introduction to Law Studies.. tion in ourselves, and more particularly our not being conversant in the meaning of the terms of art which experience has shown to be necessary in this branch of learning, for the sake of certainty, brevity and con- venient precision. " Having succeeded in distinctly and fairly understanding the terms of art, we are enabled to perceive, in a short time, and with very little labor, that the various doctrines and rules of pleading are of a nature to be demonstrated upon the principles upon which they were originally suggested, of plain reason and common intendment." It is of the highest importance to call the young lawyer's attention, at the very outset, to this, his greatest enemy — the grand stumbling stone by which many an eager youth has been tripped up at starting, and gone halting through the remainder of his journey. The necessary suggestions on this subject will be found detailed in a subsequent part of this work. The other source of preliminary difficulty is to be found in the necessity for rapid transition from one topic to another, by which professional practice is characterized ; rendering it nearly impossible to pur- sue, with effect, a connected and systematic course of reading. The varied nature and urgency of common law business requires the student to be perpetually plunging into new subjects, with the leading details of which he has not time to familiarize himself This is apt to induce a hasty, scrambling habit, against which he cannot be too vigilantly on his guard. There is only one way of meeting this difficulty ; placing him- self at once under the superintendence of a competent Preliminary View of the Profession. i i teacher ; one whose tact and experience will keep busi- ness and systematic reading, ancillary to each other ; who will chalk out a proper line of study, and illus- trate it by actual practice. This will be found the only safe, quick, practical introduction to the profession. To stimulate the flagging energies, and temper the undue ardor of the student, is indeed a difficult and responsible task, fit to be undertaken by those only who have at once the love, the gift, and the opportu- nities of teaching ; and of such there is no inconsider- able number thus actively and successfully engaged. Let it not, then, be imagined that this publication is intended to supersede the necessity of studying, and that totis viribus, under a pleader or barrister. Nothing can supersede it ; nothing compensate for the want of it, as is generally the mortifying discovery, when it is too late to remedy the evil. The present work aspires only to be the student's pocket companion — his vade- mecum, during the momentous period of his pupilage; suggesting to him a few things he might possibly otherwise have not known, and recalling some that he may have forgotten. The only other topic remaining, is an intimation of the mode suggested by the author of teaching the law. While most who have undertaken to advise on this subject have chosen the SYNTHETIC, the author insists strenuously on the ANALYTIC ; and his own reasons for doing so, though fully drawn up, it has become unnecessary to use, since it has occurred to him rather to quote the sentiments of a very distinguished indi- 12 Introduction to Law Studies. vidual — a great authority in such matters — Dr. Whately, the Archbishop of Dublin: " There is, however," he observes, in the introduc- tion to his treatise on Logic, " a difficulty which exists more or less in all abstract pursuits ; though it is, per- haps, more felt in this (z. e. logic, for which we may well substitute laiv) and often occasions it to be rejected by beginners, as dry and tedious ; viz., the difficulty of perceiving to what ultimate end — to what practical or interesting application — the abstract principles lead, which are first laid before the student; so that he will often have to work his way patiently through the most laborious part of the system, before he can obtain any clear idea of the drift and intention of it. " This complaint has often been made by chemical students, who are wearied with descriptions of oxygen, hydrogen, and other invisible elements, before they have any knowledge of such bodies as commonly present themselves to the senses. And accordingly, some teachers of chemistry obviate, in a great degree, this objection, by adopting the analytical instead of the synthetical mode of procedure, when they are first introducing the subjects to beginners ; i. e., instead of synthetically enumerating the elementary substances, proceeding next to the simplest combination of these — and concluding with those more complex substances which are of the most common occurrence, they begin by analyzing these last, and resolving them step by step into their primitive elements ; thus at once pre- senting the subject in an interesting point of view, and clearly setting forth the object of it. The synthe- Preliminary View of the Profession. 13 tical form of teaching is indeed sufficiently interesting, to one who has made considerable progress in any study, and, being more concise, regular and systematic, is the form in which our knowledge naturally arranges itself in the mind, and is retained by the memory ; but the analytical is the more interesting, easy, and natural introduction ; as being the form in which the first invention or discovery of any kind of system must originally have taken place." * Hear also the august author of the Advancement of Learning : " Knowledge that is delivered as a thread to be spun on, ought to be delivered and intimated, if it were possible, in the same method wherein it was invented ; and so is it possible of knowledge induced. But in this same anticipated and prevented knowledge no man knoweth how he came to the knowledge which he hath obtained. But, nevertheless, ' secundum, maj'us et minus,' a man may revisit and descend unto the foundations of his knowledge and consent, and so transplant it into another as it grew in his own mind. For it is in knowledge as it is in plants : if you mean to use the plant, it is no matter for the roots ; but if you mean to remove it to grow, then it is more assured to rest upon roots than slips ; so the delivery of knowl- edge, as it is now used, is as of fair bodies of trees without the roots, good for the carpenter, but not for the planter, but if you will have sciences grow, it is less matter for the shaft or body of the tree, so you look well to the taking up of the roots ; of which kind of • Elements of Logic, pp. 15-17; 3d ed. 2 14 Introduction to Law Studies. delivery, the method of the mathematics, in that sub- ject, hath some shadow ; but generally I see it neither put in use nor put in inquisition, and therefore note it for deficient." The author begs to refer his reader to the chap- ters hereafter appropriated to the development of these principles, in their application to the study of the law ; and, in the mean time, pauses to address the adventurous, but perhaps hesitating, student, in the well known words of the poet : " quae timido quoque possent addere mentem; I, bone, quo virtus tua te vocat ; I, pede fausto, Grandia laturus meritorum preemia." Choice of Legal Profession. 15 CHAPTER II. On the Choice of the Legal Profession. Student, throbbing with the worthy desire of dis- tinction, have you adequately reflected on the step you are about to take, in committing yourself to the bril- liant 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 superiors ? 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, eying more keenly the prizes which first attracted, do 3'^ou perceive that they differ from each other, even as one star differeth from another star in glory ? There, behold the Great Seal; well, friend, eye it steadily. Why should you sigh in dismay, despair ? So has, before you, sighed many a man, who has, nevertheless, afterward surprised his friends as much as disconcerted his enemies, and gained that dazzling central prize — that star of the first magnitude.* * Thomas Erskine, while riding over Huaslough Heath with a friend, shortly after his admission to the Bar, and before he had had a retainer, 1 6 Introduction to Law Studies. 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. " 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, 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 confer- red out of a certain grade, there is no position how- said, "The time will come when I shall be Lord Chancellor of Eng- land, and the Star of the Thistle shall blaze on my bosom." His prophesy was fulfilled. Choice of Legal Profession. 17 ever humble, no individual however 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 honor are unquestionable, all remembrance of what his ancestors were, is lost in the contemplation of what he is."* 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 side ! Let him even credit him- self, justly, with the possession of superior, or even first-rate powers, and every disposition to use them with discretion and determination ; still, must be whis- pered 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 understanding, nor yet favor to men of skill." There are causes in operation which paralyze the strongest nerves; there is a hope 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 afterward been distanced or thrown out, by the caprice and neglect of others, or from physical powers unequal to the heavy, unceasing demand on them ; from defi- cient pecuniary resources ; from haughty impatience, or morbid sensitiveness, leaving them soured in temper and broken in spirit — consciously neglected and for- gotten — prostrate, and, as it were, crushed under the * Preface to "ITie Grandeur of the Law." 2* 1 8 Introduction to Law Studies. foot of favored mediocrity and unscrupulousness ! Professional discomfiture at the Bar, moreover, has this specially tantalizing 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 mean- time 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 material interests of every individual in the community, from the sovereign on the throne down to the inmate of a poor-house ; under circumstances affording incessant and subtle tempta- tion to do wrong, as well as opportunities for exhibit- ing 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 honor and religious principle. Well, indeed, it is 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 Choice of Legal Profession. ig which is universal in its use and extent, accommodated to each individual, yet comprehending the whole com- munity." 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 application of appropriate modes of vindication and redress. Is it a light matter, then, to encounter the study and practice of jurisprudence — a science which, in the language of the great Edmund Burke, " 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 principles of eternal justice with the infinite variety of human concerns ? " Very little reflection must surely suffice to satisfy a thoughtful student of the gravity of such an under- taking as he meditates ; the acquiring such, and so much knowledge, and the means of using it under the circumstances of peculiar difficulty. Let him by no means, however, be disheartened. " Our profession," said one of its brightest ornaments, * is generally ridi- culed as being dry and uninteresting; but a mind, anxious for the discovery of truth and information, will be amply rewarded for its toil in investigating 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, describing ' Mr. Dunning, afteward Lord Ashburton. 20 Introduction to Law Studies. his first impressions of legal study : '' I have just begun to contemplate 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 law is called dry and unpleasant ; and I very much suspect 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." Hear also, again, Edmund Burke characterizing the law " as, in his opinion, one of the first and noblest of human sciences; one which does more to quicken and invigorate the understand- ing, 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 judg- ment 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 applicable in 1869 as in 1675:+ * We cannot refrain from quoting in this connection the magnificent metaphor of Arclibishop Hooljer: "Of law no less can be said than that her seat is the bosom of God, her voice the harmony of the spheres ; all things in heaven and earth do her reverence ; the greatest as needing her protection, the meanest as not afraid of her power." T. t The sight of the Latin quotations with which the following passage is so plentifully seasoned, reminds one of Sir Thomas Browne's remark [almost equally applicable, by the way, to his own writings], "and, indeed, if elegancie still proceedeth, and English pens maintain that stream we have of late observed to flow from many, we shall, within few years, be fain to learn Latin to understand English, and a work will prove of equal facility in either." Pseud. Epidem. — Epist to the Reader. Choice of Legal Profession. 21 " Many applying themselves to the study of the law without due and serious consideration of the qualifica- tions such a student ought to be furnished withal, have missed of that content and delight which are treasured therein; and instead thereof, have met with trouble and vexation of spirit, judging it to be studii non sin morbum, an inseparable incident to this study ; think- ing it unattainable and full of difficulty, because they are not qualified for the same ; according to that of Seneca, Multis rebus inest magnitudo, non ex natura sua, sed ex debilitate nostra. And certainly it can be no otherwise, where any undertake a profession, invita 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 Oixsra irl] {pvrfsi, as the philosopher speaks, suitably fitted and accommodated to their genius and frame of nature. " That our student therefore may find the pleasure thereof answerable to his expectation, this study must be his choice upon mature deHberation ; following Seneca's advice herein, consideranduin est, utrum natura tua agendis- rebus, an otioso studio contempla- tionique, aptior sit. And this choice is matter of great difficulty, wherein a man carrieth himself diversely, and wherein he shall find himself hindered by several considerations, which draw him into divers parts, and many times hurt and hinder one another. Some herein are happier than others ; who, by the goodness and felicity of nature, have known both speedily and easily how to choose ; and by a certain good hap (or rather Providence), without any great deliberation, 23 Introduction to Law Studies. are as it were wholly carried into that course of life which does best befit them. Others not so fortunate, who failing, ipso limine, in the very entrance, and wanting the spirit or industry to know themselves, and in a good hour to be readvised how they might cunningly withdraw their stake in the beginning of the game, are in such sort engaged, that they cannot with- out shame recall themselves from that which they have as wilfully as inconsiderately undertaken, but endure much trouble in persisting therein, and so are constrained to lead a tedious and wearisome life, full of discontent and repentance, and, which is worst of all, lose both time and labor, and spend their goods and beat their brains without either any profit or delight ; and after a long time spent therein, know not how to give a reason why they are rather for this or any other calling, except because their ancestors professed the same, or that they were unawares carried into it; which made Seneca say, pauci sunt qui consilio se suaque disponunt ; cczteri eorum more qui fluminibus innatant, non eunt, sed feruntur. Whereas every science requires a special and particular wit and habili- ties, according to which every man ought to steer his course. Hippocrates saith, that man's wit holdeth the like proportion with science, as the earth does with seed ; which, though of herself she be fruitful and fat, yet it behooves to use advisement to what sort of seed her natural disposition inclineth ; for every sort of earth cannot without distinction produce every sort of seed answerable to that of the poet. Nee tellus eadem parit omnia, vitibus ilia, Convenit hicc oleis, hie bene farra virent. Choice of Legal Profession. 23 This choice being so difficult, that our student may not herein miscarry, nee quicquam sequi quod assequi ncqueat, he must make a strict inquiry into these two things — his nature and the nature of the study ; that his nature (that is his capacity), temperature, and what- soever he excelleth in, be answerable to the study. Id quemque decet quod est suum maxime sic faciendum est, ut contra naturani universam nil contendamus, ea servata, propriafn sequantur." While a mischoice of any profession is unfortunate, and often irretrievably so, such is peculiarly the case with that of the Bar, for reasons which have several times already been glanced at, and yet it is doubtful whether any is entered more inconsiderately, and with a sort of infatuation, as if it were a matter of course. If foolish friends suggest to one about to take this step that he may depend upon it a little learning will go a great way with even very moderate parts and industry, and that life at the Bar is a gay and happy one, they are his greatest enemies, as he will but too soon dis- cover. It is not impossible that an unscrupulous use of personal influence, may keep him in a little employ- ment for a little while, but it often quickly melts away, when his situation becomes mortifying and distressing indeed; for that influence or patronage never, under such circumstances, returns. In vain then he sits in Chambers; in vain he repairs to Court; in vain he applies for those minor offices and employments for which he once thought he had only to ask, but which he now finds the object of fierce competition among a host of persons, many of them of longer standing than 24 Introduction to Law Studies. himself, and whose superior quaUfications entitle them to the favorable notice of those dispensing such patron- age. How can a position be more deplorable than this, especially if he have no pecuniary independence, however small, to fall back upon ? His little patrons, when appealed to, shrug their shoulders and say with a sigh, they have done their best for him ; they are sorry that others have now a call upon them. Though it may seem hard to do so, it must be asked, by those interested in the welfare, equally, of tjiis great profes- sion and of the public, is such a person really an object of sympathy? Had he any pretense for expecting success ; has he any right to complain of the want of it ? Ought he not rather to complain of his advisers, and reproach himself for so readily yielding to their futile representations ? Had he, or they, ever given a single day's becoming attention to the nature of the profes- . sion, and of his own fitness for it. Leaving, however, so dreary — and yet, as is known to every one practi- cally acquainted with the Bar, so frequent — a case, a step further brings into view that of a man of capacity and acquirements who meditates entering the ranks of the Bar. And first, however great may be his per- sonal pretensions, has he an inclination for the study and practice of this exacting profession ? Here again shall address him the quaint old lawyer of two hundred years ago. " Eo inclinandum" quoth Seneca, " quo te vis ingeni defert." Without this whosoever attempts this or any other study or profession whatsoever, doth but labor in vain ; and if the reason hereof be but con- sidered, here is no cause for wonder; for the same Choice of Legal Profession. 25 philosopher tells us that coacta ingenia male respondent, et reluctante natura, irritus labor est. This was the reason that Isocrates, laying hands on Ephorus, drew him from the Court of Judicature, knowing him to be inclined to, and fitter for another employment. Iso- crates Epkorum infecta inanu subduxit, utiliorem componendis inonumentis historiaruin ratus. And for any to attempt this study, invita Minerva, as they say, is plain folly ; nor can it be imagined that any man with a lothing mind and forced industry can compass such a laborious study not being able to take any delight therein ; whatsoever such a man doth is but to plunge himself the deeper in difficulties ; whereas, on the other side, a propensity to the study renders the work less tedious, the pleasure that the student finds therein far exceeding any trouble or vexation whatso- ever. And this dehght in the study makes the student thoroughly to understand and apprehend the same ; and it doth not only dilate the spirits, but doth also quicken the memory according to the saying : Quce magna cestimamns memoria, infigimus. In a word, without inclination to a study, there can be neither pleasure nor proficiency therein. Let the great Lord Bacon, also, here whisper a few words of counsel into the thoughtful student's ear : " Men ought to take an impartial view of their own abilities and virtues ; and again, of their wants and impediments, accounting these with the most and those other with the least .... How their nature sorteth with professions and courses of life, and, accordingly, to make election if they be free; and, if engaged, to make the departure at 26 Introduction to Law Studies. the first opportunity, as we see was done by Duke Valentine, that was designed by his father to a sacerdotal profession, but quitted it soon after in regard to his parts and inclination. And to consider how they sort with those whom they are like to have for competitors and concurrents." It is to be hoped that such deliberation as is now urged, before taking the first step, will save the student from the distressing necessity of retracing that step — of " making departure at the first opportunity " from the Bar. Has he a real inclination then in this direc- tion ? An inclination for what ? For constant oppor- tunities of easy and lucrative self-display starting in a career of success after a mere child's play of prepara- tion ? One setting off with these impressions will quickly become the companion in failure and vexation of him whose case has just been considered. For what then ought he to have an inclination ? For the study and practice of a great profession, which demands well disciplined faculties ; a capacity of sus- tained attention ; clearness of perception ; a logical turn of mind; soundness of judgment; strength of memory; calmness, patience, steadiness, self-denial. Whichever of the two great department? — Chamber or Court Practice — be adopted, a concurrence of these conditions, in a greater or less degree, is essen- tial to success and determines cceteris paribus, reality and rapidity of progress equally in study and prac- tice. As to the first of these conditions — well dis- ciplined faculties — "I have not infrequently," says one of the most scientific practitioners now at the Choice of Legal Profession. 27 Bar, and thoroughly competent to form an opinion on the subject, " seen a man who has spent four years in a sohcitor's office, commence reading with a convey- ancer, at the same time as another man fresh from the university; and before a twelve-month has expired, the university man has distanced his competitor, who had had four years' start. The one had learned how to learn ; the other had not." To this it may be added, that the advantage of such a start, will remain to the Iast_ For superior success in court practice, especially before a jury, there must be added to the foregoing qualifications, rapidity and flexibility or versatility of mental action ; an argumentative turn of mind ; force and readiness of expression and illustration ; eloquence, tact, general knowledge, self-command, sensibility, vivacity, courage, presence. These qualities are re- quired variously as the advocate argues before a judge, either in Common Law or Equity Courts — where his object is to convince a learned and accomplished man, probably far more so than the counsel will ever be, and with whom sound logic, learning and accuracy, alone will prevail, and before a judge and a jury, where the advocate has to deal with witnesses, and persuade and convince twelve variously constituted minds to accept his version of facts, and deduce from them the inferences which he desires. Here, of course, is infinite scope for the display of eloquence,cof knowledge of human nature, mastery of suddenly varied, and often v/holly unexpected evidence, and all this as against an able opponent, before an attentive bar, the press and the public at large. 28 Introduction to Law Studies. The student, again, must rest assured that he can enter no department of the Bar which will not heavily tax his time, compelling him, if he be in earnest, early to elect between the pleasures of society or very many of them, and the due prosecution of an arduous, an exacting profession. The former are delights which he must resolutely forego for a while, but only to enjoy them the more when he has earned a right to do so, by a season of self-denial and industry.* These remarks are applicable equally to the student and practitioner. In no profession, indeed, are seen so early as in that of the Bar, the fruits of observing or neglecting such considerations. Again, nothing can sustain the burthen of extensive, or at least 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 in incessant and often severe exercise ; the consuming fire of excitement is ever kept up by eager contests, about matters often themselves exciting, against eager rivals, under the stimulus and pressure of constant publicity, and the hope and prospect of advancement and distinction. How can this co-exist with weakness ; a predisposition, perhaps hereditary, to disease in the lungs, in the brain or other vital organ ? Yet, it may * Rufus Choate said that for five or six years at the beginning, he gave himself wholly to the law, to the exclusion of all literature, and he pronounced that course essential to making progress in it. After that he commends the devotion of considerable time to literature, science, etc. T. Choice of Legal Profession. 29 be said, how rarely one hears of unfortunate cases of this description, especially among the foremost mem- bers of the profession ! There are, however, more Folletts 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 favored with a strong constitution. If such comparison be allowed, those who have been able to stand so long in the flames may safely be pro- nounced fire-proof! May these friendly cautions, however, now spurned with an impartial 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 dismay- ing apprehensions, it may be again asked, serve 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 delay, the senate ? Who might have long dis- tinguished themselves in any other elevated walk of life, than that which they had selected so unwisely and unfor- tunately ? How many might have adorned the ranks of literature 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 ingloriously extinguished. Supposing, however, an inclination toward the Bar cannot be overcome, let it be yielded to discreetly, by passing, for instance, with every attention paid to 3* 30 Introduction to Law Studies. 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 adventuring on the more formidable scenes of forensic or parliamentary life.* Again, let me ask of you who are confident and panting with eagerness at the threshold of the Bar, have you a fair and reasonable prospect of introduction to business ? Do not at once leap into a fool's paradise, and place a delusive reliance on the very civilest assu- rance of future support. Alas, what broken reeds they are generally found ! 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 afterward, the most plausible reasons can be given accompanied by honeyed expressions of regret, for non- performance. " It is so unfortunate ! If it had but two years, or even a year ago," and so forth. The reasons are profuse, satisfactory, and so — sickening ! Whatever be his talents and acquirements, and how- ever 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 opportunity presents itself. Even so it is now, as it was in the days of Roger North. " This length of * The author's remarks as to the healthy constitution requisite to sus- tain the wear and tear of the law, though in the main applicable to this country, lose some of their force from the fact that, with us, the court, chamber, and attorney business are so mixed as to afford a grateful variety and prevent continued strain in one direction. T. Choice of Legal Profession. 31 time in the approaches to practice must be endured," he says : " for what inconvenience is it, when a man has once firmly dedicated his whole life to the law ? If any good fortune invites to any steps forwarder, there he is to embrace the opportunity; if not, he cannot 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 e.^^ may have more than its natural heat, but will hatch or be addle; therefore let the motions be rather phleg- matic than mercurial, 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 success in the profession of the law, the candidates are so numerous ; and those who get large practice sp 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 his life- time in the courts, and never have an opportunity of showing his abilities." This is as true in 1869 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 philosophy. He must be content to "bide his time," to "cast his bread 32 Introduction to Law Studies. upon the waters, to be found" only "after many days." He must never give up ; he must not think of slacken- ing his exertions, thankless and unprofitable though they seem to be. Does he imagine his to be the only unwatered 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 with pretensions vastly superior to his own are still pining in undeserved obscurity, after years of patient and profound preparation.* 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, immeasurably his inferiors in point of ability and learn- ing, are rising rapidly into business and reputation, through accident; through connexion, it may be, even through undue and unfair advantage and favor. This, also, the student must learn to bear ! He must repress * Lord Thurlow attended the Bar several years unnoticed and unknown. The practice of Lord Chancellor Camden was for some time so incon- siderable as almost to determine him to abandon the profession. Lord Grantly is said to have toiled through the routine of circuit for many years without a brief. Horace Binney waited ten years for a fee. Webster's receipts from his practice were so small for some time after his admission to the Bar, that he despaired of ever being able to make a living at the law, and almost resolved to abandon it, and the biographer of Rufus Choate tells us, that this greatest of American advocates, seriously debated, during the first two or three years of his practice, whether he should not throw up his profession and seek some other method of support. The names of a great number might be added to this list, who are to-day the brightest ornaments of the bench and bar. T. Choice of Legal Profession. 33 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, however, 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 proportion 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 drawn ? For our comfort, however, in this lottery of the profession, there are comparatively but few blanks, if, indeed, there be strictly any. The time and labor we employ, which may be considered as the price of our tickets, must always produce useful knowlege, though the knowledge 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 return, at one time or another, amply do justice. His success is sometimes as sudden as splendid and permanent. Names could be easily mentioned of those who knew scarcely a year's interval between an income of two or three hundred pounds, and as many thou- sands a year. In a moment, in the twinkling of an 24 Introduction to Law Studies. eye, the desolate darkness 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. Non it, sed fertur. For all this he is fully prepared ; the " vigmti annorum. bicubrationes" bear him up under the most unexpected 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 neglect, than the possessor of that merit may suspect. Some time ago, a gentleman at the Bar, of high personal character, refined and accomplished mind, and solid professional acquirements, but scarcely ever employed in business, was greatly surprised one after- noon, by receiving a letter from a profoundly learned Lord Chancellor, offering him certain valuable promo- tion. " 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 satisfac- tion 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 reports, 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." Choice of Legal Profession. 35 Finally, let the student strive to form a fitting con- ception 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 affairs and interests of all classes of society — entrusted to his honor, his dis- cretion, 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 cetatem agicnt, eoruin facta, cuncti mortales novere. He aspires, in due time, to occupy the seat of justice, and that with a purity, with a grace, with a dignity which shall be recognized 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 tilings 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 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 termi- nate contentions ; and grant that I may use that knowl- edge which I shall attain, to thy glory, and my own salvation, for Jesus Christ's sake. Amen." 36 Introduction to Law Studies. CHAPTER III. STUDENTS, Their Character, Objects, Pretensions and Prospects. 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 looking 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 inquiry, shortly sug- gesting what each individual has to expect, and what not; — what to learn and what to unlearn. The first class comprises those who may, for con- venience sake, be styled merely nominal or amateur students ; the second, those who seek to qualify them- selves for the duties of the legislature or magistracy ; the last, those who purpose becoming actual practition- ers. Of these, then, in their order : The class of merely nominal, or amateur law students, 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 no other object in view than amusement and quasi occupation, before coming into the full posses- Students. 37 sion 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 indiffer- ence. 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 " the learned gentleman ;" and feel as much satisfaction in being able to assume, at will, the grave imposing vesture of counsel as others experience in wearing the gay and dashing 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 excitement, frolics and variety. It is not, in short, a very expensive way of securing a pleasant and sometimes eminent acquaintance ; of pur- chasing 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 anticipate 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 possessed certainly of long stand- ing, and will, besides, no doubt, find it as ea.sy to assume business habits, and acquire legal knowledge 4 38 Introduction to Law Studies. when needful, as their wig and gown ! Chambers will thus be a shelter from the pitiless pelting of the storm of poverty ! The second class of students is a select and distin- guished one, consisting almost exclusively of those young men of rank and fortune who, born to an exalted station, and not satisfied with barely occupying it, are inspired with the proud ambition of adorning that station ; who, if a professional allusion may be par- doned, will not inherit but purchase greatness. "Honors happiest thrive, When rather from our acts 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 themselves for filling worthily the important office of magistrates, or sustaining the more splendid responsibilities of legislators and statesmen, by obtain- ing, if so disposed and capable, that from which much may be hereafter expected, a thorough and compre- hensive knowledge, both theoretically and practically, of their country's constitution, and of the legal relations, rights and duties of civil life. To the paramount importance of acquiring such knowledge, all the greatest and wisest men have borne testimony. The Emperoi Justinian thus, at the close of the Proemium to his " Institutes," addressed the noble youth of his domin- ions, for whose use he had caused those institutes to be prepared : " Receive, then, these our laws, and address your- selves at once to the study of them, with cheerful Students. 39 energy. Show yourselves such proficients that, having thoroughly mastered them, you may justly cherish the brightest hopes of bearing a part in the government of your country, and acquitting yourselves with honor in the offices which may be entrusted to you." Without this knowledge, indeed, a man will advance but empty and contemptible pretensions to exercise the functions of a statesman or legislator. He will be really a cipher in either house of Parliament ; he can not, 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 inglorious mute can such a one be on great constitutional questions, often started as suddenly as the interest they excite is uni- versal ?• He cannot prepare himself fitly as either listener or speaker for such occasions as these at a min- ute's notice ; and then he will bitterly realize the want of those careful leisurely acquisitions of early years, which he sees telling so powerfully in favor of their provident possessors ! Whatever may be attributable to structural defects in the legislature, which it seems at once as ready to recognize as impotent to remedy, it cannot be doubted that legislative action suffers seriously from the defective training of its members. What a difference would now be visible if every mem- ber of either house of Parliament possessed a fair knowlege of the actual condition and practical working of our laws ! Knowlege, too, attainable with greater ease than may be supposed. A single year, well spent, 40 Introduction to Law Studies. in the chambers of an able practitioner of the law, would prove of incalculable service to the future legis- lator, and invest his parliamentary duties with great and enduring interest. 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 effected, 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 common- est operation on the human body, without having first learned the difference between diseased and healthy structure and function — without having seen and studied all its inward parts, devoting to the most secret and minute their profoundest attention ; but our state physicians will administer the most potent medicines, our state surgeons perform the most capital operations, without having even affected to learn the plainest principles of state medicines, pathology or surgery, or devoted a single moment to dissection ! What, then, can they be, in plain terms, but impudent and pre- sumptuous quacks ? And what is to become of the state patient ?* * The statute books of every State in the Union are monuments " more durable than brass " of the ignorance and incompetence of many of the men elected to the noble office of legislators ; and it is not too much to say that a fourth part of the litigation of the country arises either from ignorance on the part of the law makers of pre-existing laws, or the careless and inartificial manner in which statutes are drawn. Judge Edmonds, in the preface to the third volume of his Statutes of the State of New York, cites some striking instances of legislative Students. 41 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 fre- quently deemed sufficient. The jurisdiction of magis- trates has been enormously extended, and is now of a very multifarious character ; 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 liable to be questioned and rectified, and even at their own cost, before a superior tribunal, at the instance 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 he be ignorant of the very elements of law — of the leading principles of evidence, for instance, and the construc- tion of statutes ? Is he content to be a mere tool in the hands of the magistrate's 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 blunders. He refers to "An act to amend an act, etc.," the first section of which amends the previous act, and the second section repeals it. Another instance is given of an act passed in 1813, repealed in 1819 and twice afterward amended. A most amusing instance of "absurd legis- lation '■■ is to be found in chapter 415 of the Laws of 1863, of the State of New York. The act provides that the convict in the State prison may earn, by good behavior, an abridgment of a certain number of days per year of the term of his sentence. A proviso is solemnly tacked on at the end of the section to the effect that "the provisions of this act shall not affect the case of any person who shall be under sentence of imprison- ment for the term of his, natural life."' T. 4* 42 Introduction to Law Studies. his order by paid lawyers — that is, by stipendiary magistrates ? It is, however, of much more moment to the pubHc 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 grievous injustice unconsciously, except where his errors are exposed, often with great but not unjust severity, by a vigilant 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 resolution to undergo its honorable and invigorating discipline. They will find it not only the true and only source of constitutional learning, but the finest school for talent perhaps 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 best and perhaps latest chance of being sobered and settled into business habits. " Goe now, yee world- lings," says old Bishop Hall, " and insult over our pale- nesse, our needinesse, our neglect. Yee could not be so jocund, if you were not ignorant ; if you did not want knowledge, you could not overlook him that hath it ; for me, I am so farre from emulating you that I pro- fesse I had as lieve be a bruit beast as an ignorant rich man. How is it, then, that those gallants which have privilege of blood and birth, and better education, doe so scornfully turne off these most manly, reason- able, noble exercises of scholarship ? An hawke Students. 43 becomes their fist better than a booke ; no dog but is a better companion.". 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 university men, especially those from far-famed Oxford and Cambridge, where some have greatly dis- tinguished themselves. Hear Lord Coke, himself a Cambridge man, on the advantage of a university edu- cation, 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 studies of the common law, where he may learne the liberall arts, and especially logick ; for that teach- eth a man, not only by just argument to conclude the matter in question, but to discerne between truth and falsehood, and to use a good method in his studie, and probably to speak to any legall question, and is defined thus : Dialectica est scientia probahiliter de quovis the- mate disserendi, whereby it appeareth how necessary it is for our student." It needs not, however, the authority of either Little- ton or Coke to establish the proposition that a solid university education 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 Cam and Isis, equally distinguished at the Bar and on the bench, " Foreigners often ask," said Mr. 44 Introduction to Law Studies. Canning, in one of his parliamentary speeches, " by what means an uninterrupted succession of men quahfied more or less eminently for the performance of united parliamentary and official duties is secured ? First, I answer (with the prejudices, perhaps, 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 universities that the youth of England are, by a discipline which shallow judgments have some- times 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 Eng- land would not be what she is without her system of public education, and that no other country can be- come what England is without the advantages of such a system." Perhaps it may be safely said that those who have distinguished themselves in mathematics are, cceteris paribus, best adapted for the Bar; but, in fact, both classic and mathematician have undergone such sys- tematic discipline, and attained such a degree of intel- lectual superiority, as must disarm law of its terrors. He who has been accustomed to wrestle with New- ton and La Place, to wind his way through the mazes of algebraic calculation, and work out the profoundest problems of a rigid and infallible geometry, need not fear to be turned aside by the subtleties and com- plexities of law. Logic so masterly as his, what Students. 45 difficulties can withstand, what multiplicity distract? If, indeed, the bow have not been over-bent — the mind and body paralyzed 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 pass- port to success. Business habits must be acquired ; promptitude, decision, ductility ; the power of thinking, amid the hubub of the world, on the spur of the mo- ment, 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 endeavor to frame the mind to be pliant and obedient to occasion." It may be, also, that the acquisition 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 him- self 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 cor- rect 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 exultation ought to be allowed to sub- side 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 struggle with men — the real battle of life. The first man of his 46 Introduction to Law Studies. year at Oxford or Cambridge must be content to pro- pose to himself a considerable interval of severe labor, during which he will be lost to the eye of public observation and the voice of applause. Let him assure 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 seek- ing. Thus only can he justify the high expectations of others, and realize the proud hopes he is justified in cherishing. Secondly, those who come to the Bar after a novitiate passed in an attorney's office, are not inconsiderable in number ; and if possessed of several peculiar advant- ages, have also to contend with some disadvantages. Such students have had opportunities undoubtedly of learning easily, and thoroughly, what cannot, by scarce any pains, be acquired elsewhere than in the scenes which they have just quitted — the practical working of the law in all its details ; but they are sometimes apt to over-estimate the importance of such knowledge. They will have to guard specially against the conse- quences of a long familiarity with technicalities rather than with principles. " By strictly adhering to form," observes the celebrated Lord Kames, " without regard- ing substance, law, instead of a rational science, becomes a heap of subterfuges and inconveniencies which tend sensibly to corrupt the morals of those who make the law their profession." The knowledge of such a tendency ought surely to suggest commensurate effort to counteract it, by the expansive study of principles. Several years' sojourn in an attorney's office is apt. Students. , 47 moreover, to induce a neglect of that general knowl- edge without which it is discreditable and dangerous to come to the Bar. To remedy this serious defect requires great judgment, as well as pains and persever- ance, but more judgment in supplying it. Thus, then, from all these quarters is collected a miscellaneous 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 from all parts, with all characters and pretensions, are collected for a great heat. We however, must turn, for a while, from the exciting and brilliant race-course to the all-important scenes of the TRAINING. 48 Introduction to Law Studies. CHAPTER IV. General Conduct. May it be presumed that of those described in the foregoing chapter, a few, standing at the threshold of the Bar, capable of attaining high excellence, but con- scious of habits unsettled, characters immature and education incomplete, will listen with candor and atten- tion to a few suggestions designed as helps toward the formation of a legal character? 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 sug- gestions offered, as products of some experience and observation. Surely something more than aptitude for the acquisi- tion, 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 honor to an honorable profession, filling so large a space in the 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 Hippomenes 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 General-Conduct. ' ' 49 nature — for integrity and corruption, for generosity, fortitude, fidelity, as well as " envy, hatred, malice and all uncharitableness ;" capricious, moreover, and often tantalizing to its most worthy votaries. Well may the student, anxiously and distrustfully pondering all these thing, exclaim : Who is sufficient for them ! Let him not suppose that the above is an over-wrought picture of the profession which he has selected ; for, to ) a moderately thoughtful observer, every day's expe- • rience 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 correct and comprehensive estimate been formed of the require- ments of that profession at the outset. Had its can- - didates but been cautioned against its peculiarly \ besetting dangers, fewer might have deflected from the paths of honor and integrity, or been satisfied with a low tone of moral feeling, or a low standard of intellectual attainments. Many, aware that the Bar is a learned, forget that it is also a liberal profession. They seem to think it impossible to be lawyers without also being also mere lawyers; thus, when brought to the brink, hurrying down out of the translucent water, with reptile pro- pensities, into the mire beneath — their congenial element. Such are the appetencies of inferior organi- zation. 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 !" 5 -^ JO Introduction to Law Studies. Better things than these are hoped of him who is perusing these lines. He will take special care not to lose sight of the duties he owes to society in those which he acknowledges 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 mathematics, 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 effects.* But when to an exclusive devotion to the practice of the law is joined a grovel- ing 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 mole's is not so ; and some men bring to the law a mole-eyed mind. These, crawling oft-times from their underground darkness, the broad day-light blinds ; they are not formed for coming out upon the open, bright, breezy eminences, and gazing at the diversified prospects of cultivation and refine- ment ; the glorious realms of literature, art, science and philosophy are forever hid from them — " dark with excessive light." * Lord Bolingbroke, after describing the profession of the law as in its nature the noblest and most beneficial to mankind, in its abuse the most sordid and pernicious, exclaims : " There have been lawyers that were orators, philosophers, historians ; there have been Bacons and Claren- dons, my lord ; there shall be none such any more, till in some better age, men learn to prefer fame to pelf, and climb the vantage ground of general scienoe." T. General Conduct. SI Far better things are expected, it is repeated, of him who reads these pages. He is not required to bring to the Bar dazzHng abilities, which providence entrusts to only a few, but given credit for a frank and manly- character. Grant even that he has but moderate pre- tensions 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 afterward, 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 prac- tical cautions which follow. 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 practical 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 uttermost, approach his subject by never so many different ways, and in all modes of mind, he will, nevertheless, be 52 Introduction to Law Studies. sometimes 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 thus supplied with could have escaped him. How apt is the recurrence of such mortifications to beget a peevish, irritable, desponding humor, disgust- ing the victim of an ill-regulated temper with himself, his profession, and every body about him ! Now let him, from the first, calculate on the occurrence of such obstacles, that so he may rather overcome them than suffer them thus to overcome him. " When you find, therefore, motions of resistance awaken your courage the more, and know tliere is some good that appeares not. Vain endeavors find no opposition. All crosses imply a secret commodity ; resolve theit 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 insurmount- able; 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 legis- lator, who knows us better than we know ourselves, as he loves us better too. Pater ipse colendi haud facilem. esse viam volint* 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, * The Father of our race himself decrees That culliire shall be hard. Virgil's GeorgUs, i, i2i. T. General Conduct. 53 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 yealding. He is above nature, while he seems belowe himselfe. He trieth the sea after many shipwrecks, and beats still at that doore which he never saw opened. This man only can turne necessity into virtue, and put evil into 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 more miserable." Truly, these are golden sentences worthy to be ever borne about with the student, as having the virtues of an amulet ! " 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 appe- tite." And so, reverently adopting this language, when the student 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 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 everything, even in the law; a time for study, and a time for relaxation. The clearest and strongest eyes, by too long exertion, become over- strained, and everything is misty and confused. So it 5* 54 Introduction to Law Studies. is 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 interval of changed thoughts you will come back in cheerful mood ; your head cleared, your temper cooled, and the difficulty, lately so formidable, disappears in a trice. " A man must use his body," 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, to render the study of the law a pleasure instead of a plague. Its practice by these means will lose many asperities. The young practitioner must not fret at the delay of business ; and above all, not at this trying period only, but throughout his career, oh ! let him " beware of Jealousy I " He that brings to the law a disposition which pines and sickens at another's joy, an eye jaun- diced, 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 dis- ease but his neighbor's welfare. Finally, he is an en- emy to God's favors, if they fall beside himself; the best nurse of ill-fame ; a man of the worst diet, for he consumes himself, and delights in pining; a thorn- hedge covered with nettles ; a fJeevish interpreter of good things ; and no other than a lean and pale carcass General Conduct. 55 quickened with a fiend." The torments of the inqui- sition will be light and tolerable to those which he must endure. Oh, 'tis a pitiful, a despicable, a horrid propensity which some have, of going about sneering, detracting, toad-spitting, at their more successful brethren, " utter- ing innuendoes cursed," against merit, wherever it shows itself! Do yo7i, reader, ever feel these infernal prompt- ings ? Then your soul has been blighted, and is cank- ering 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 congratula- tion, to successful merit, wherever, whenever it appears ! consider, when you see a man rising steadily to emi- nence, how severe, how protracted, in all probability, has been his struggle with difficulty ; how honorable he has been ; what patient self-denial he has practiced ; what privation he has suffered ; how little of the pleas- ures of life he has enjoyed ; the secret inroads which intense application and unremitting labor may have made upon his constitution ; the invaluable assistance which, while himself neglected and disheartened, he has from time to time afforded to his inferior but more favored brethren ! And if, in addition to this, he be characterized by manly modesty and good nature — oh, reader, ought you not to sympathize with him — to be proud of your rising brother f If, at such times, a sudden excruciating twinge should be felt, then say, 56 Introduction to Law Studies. 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. Emulation, the very life-spring of honorable 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 equal- ity 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 down 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 unlawful one, envy, aim at, is the same, namely, that quality or superiority, and, consequently, that to do mischief is not the end of envy, but merely the means it makes use of to attain its ends." But once more, you will sometimes meet with un- reasonable men, among both brethren and clients, as well in public as in private. A cutting, unkind ex- pression may fall, in a moment of irritation, even from the patient and generally placid bench ; your leader, charged with the exciting cares of conducting the case, may treat you sharply — possibly even with rudeness ; and your client, broiling beneath, may grow testy and unreasonable. All these, undoubtedly, are trying and provoking ; but not to him who bears about with him the talisman of an even and well-regulated temper. General Conduct. 57 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, rebukeful 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, in- stead of exhibiting this admirable self-control, he had demeaned himself by flippancy and importance toward even an impatient occupant of the seat of justice ! A considerate junior should make allowance for the pressure 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 forbearance. A corresponding discretion is due to your client. The exigencies on which they consult you are sudden, and sometimes even alarming. When engaged with your clients be calm, patient and collected, bear in mind the advice given by Lord Bacon : " Give good hearing to those that give the first information in business, and rather direct them in the beginning, than interrupt them in the continuance 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 ; 58 Introduction to Law Studies. 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 railroad ease, comfort and rapidity, over all ob- structions, 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 I have reaped are of the tree I planted. They have torn me, and I bleed ! " The general conduct of the law student is a matter of high concernment, depending upon individual char- acter and tendencies, upon early association — upon discipline and education, or the want of them. It would be a childish and thankless task to dwell at large upon so trite a topic ; nevertheless, the author ventures to offer a few practical suggestions — the results of no inconsiderable observation. First. Our profession unavoidably offers dangerous facilities for dissipation. The reader must bear to be reminded, that every year of his legal life will give him cause to rejoice at, or regret the want of, early sobriety of conduct, and consistency of character. " Pho ! " may exclaim a nettlesome youngster, " let me alone for that 1 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 enjoyment!" True, there may possibly be a few who succeed in their studies, and it may be, to a certain extent, in their pro- Generai, Conduct. 59 fession, in spite of even systematic profligacy ; whose minds have naturally, or have acquired, the power of settling at will upon any subject proposed to them ; whose iron constitutions appear impervious to the drippings of daily dissipation. 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 recollections of early misconduct; amid the gloom and misery of premature decay, the heart is left to its ozvu 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 efforts be crowned with success, will be taxed in the discharge of his professional du- ties, how he would husband them ! 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 bloodshot with over-night excesses ? Is this the way to fit a student for his studies ? to render 6o Introduction to Law Studies. them easy and attractive ? How can the mind, pol- luted and choked with associations derived from inces- sant scenes of riot and excess, " cleanse " itself "of that perilous stuff that weighs upon it ? " Passing by the consequences 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 young counsel to stand well with the attorneys and solicitors, and others who are likely to put business in his way ? Then let him beware 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. It is of the last importance to a law student to acquire early the character of a steady working man. There are, un- doubtedly, persons intending to become law students, of brisk, lively parts, who think otherwise, — who seem to consider it a pleasure and distinction to appear in dandified costume, to swagger about the street and else- where puffing cigars, to mix with dissipated com- panions, 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 in the path which led their forefathers in the law to honor and greatness. " Sir Mattew Hale, on com- mencing his studies, discarding his gay clothing, as- sumed a plain and student-like habit." "The Lord Keeper Guildford's youthful habits," observes Roger North, "were never gay, or topping General Conduct. 6i the mode, like other Inns of court gentlemen, but al- ways plain and clean, and showed somewhat of firmness or solidity beyond his age. His desire was rather not to be seen at all, than to be marked by his dress. In these things, toward 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 habits, likewise," quoth old Philips, "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 effeminate 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 comd nitidos, de capsuloL totas, nihil ab illis speraveris forte, nihil solidum.' " " Sir Matthew Hale," says Burnet, " was a great en- courager of all young persons that he saw follow their books diligently ; 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 any thing 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 6 62 Introduction to Law Studies. 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, pon- dering a very striking passage which is 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 reputa- tion in the world, who made choice of, or delighted in, the company or conversation of those who, in their qualities, were inferior, or in their parts not much su- perior 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 gentlemen's swinging into utter perdition greater ; but a student of the law hath more than ordinary reason to be curious in his- conver- sation, and to get such as are of his own pretension, that is, to study and improvement ; and I will be bold to say, that they shall improve one another by dis- course, as much as all their other study without it could improve them." No profession so richly repays early prudence in selecting 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 to cultivate the acquaintance of such only as appear likely to become friends, of whom General Conduct. 63 one may be hereafter proud, and not ashamed. How- close, how charming, the friendship cemented by years of sympathy and mutual assistance, amid the cheq- uered fortunes, — the " ups and downs " of professional life ; for each to be able to say of the other, in long after years, " I envied 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." Secondly. The same prudence which teaches a young man to avoid squandering his hours in pleasure-hunt- ing will also enable him to preserve a " moderation, discretion and forbearance in his very work." Let him economize his time, for the purpose of study, if he will, but let him apportion that time wisely. There cannot be an error more egregious than that which is often to be met with in eager law students at the com- mencement of their studies, that of poring over their books from morning to night, utterly careless of health, of the means of preserving both body and mind, thus wearing themselves out at the very beginning, " well- nigh chancing shipwreck at starting," as some of our greatest lawyers have had to lament, and that, too, by unprofitable labor. Let not our student think it a worthy thing to be able to boast of reading " so many hours a day," — eight — twelve — it may be fourteen ; whoever, of only ordinary discernment, hears him will but pity or despise him, and think little better of him than if he boasted of having been so long employed in eating. Indeed he might as well. Does it never occur to him that mental food as much requires diges- 64 Introduction to Law Studies. tion as bodily food ? Stuffing and cramming, according to the manner of some, may insure the painful turgid- ity of an ill-used turkey, but can never conduce to the healthy development and strengthening of the human understanding. Five or six hours a day of thoughtful reading, of real work, will, generally speaking, suffice for the youthful student, unless he means early to in- capacitate himself for prosecuting his studies. Non quam inulta, sed quam multum, the pregnant words of Seneca, should be inscribed upon his study door. Sir Matthew Hale said, "that he studied sixteen hours a day for the first two years after he came to the Inn of Court, but almost brought himself to his grave, though he was of a very strong constitution, and after reduced himself to eight hours ; but that he would not advise any body to so inuch ; that he thought six hours a day, with attention and constancy, were sufficient." Adding the words already quoted, that "a man must use his body as he would his horse and his stomach, not tire them at once, but rise with an appetite."* There is one point, however, concerning the due economy and disposal of his time, which yet remains to be urged strenuously upon the young lawyer, and that is, early rising. Those who have been accustomed to the enervating habit of lying in bed till a late hour must turn over a new leaf on entering the profession of the Bar. To say nothing of business beginning in * Rufus Choate, who was- the acknowledged leader of the American Bar, said " Six hours a day, four of study, and two of lucubration and legal talk, are amply sufficient. The mind burdened loses its memory and alacrity and originality." T. General Conduct. 65 town at ten, and on circuit at nine o'clock in the morn- ing, and the consequent necessity of dressing, break- fasting and preparing for transacting business, — why will not the student accustom himself to such a habit beforehand ? Why not secure an orderly disposition of his time through the day by beginning it well ? A fortnight's perseverance in rising early, say at seven, and eventually at six o'clock, will enable him easily to form a habit securing blessings incalculable in after life. Look at the time he will gain by it ! Two or three of the best hours of every day, when he is re- freshed in both body and mind, when all around is silent and peaceful, provocative of meditation, the great glaring world, not yet awoke from its slumbers, neither distracting him with its hubbub, nor sending its emissaries to disturb or seduce him. This practice will enable him to get through every day's business, however difficult and miscellaneous, leisurely and me- thodically ; for how true it is, that he who loses an hour in the morning, generally wastes the remainder of the day in running after it. Not that the student need fasten on his law books the moment he rises from bed ; that will be a matter of choice ; but to whatever subject he then devotes his energies, those energies will, unless there be disturbing causes at work, be as- suredly at their best. Hearken to the cheering and spirit stirring strains of Milton ! " My morning haunts are where they should be, at home ; not sleeping or concocting the surfeits of an irregular feast, but up and stirring ; in winter, often ere the sound of any bell awaken men to labor, or to de- 6* 66 Introduction to Law Studies. votion; in summer, as oft as the bird that first rises, or not much tardier, to read good authors, or cause them to be read, till the attention be weary, or the memory have its full freight; then with useful and generous labors, preserving the body's health and hard- iness, to render lightsome, clear, and not lumpish obe- dience to the mind, to the cause of religion and our country — liberty, when it shall require our firm hearts, in sound bodies, to stand and cover their station." This habit of early rising, however, be it observed, will, if it is to be maintained, demand the accompani- ment of early retiring. And what of this? Is it a thing to be regretted ? No, but rather welcomed as a salutary necessity. Then, again, let the student firmly resolve to abstain from his professional, or other labors, on the Sabbath day. It is not deemed necessary to urge this topic on religious grounds, which he will find elsewhere than in such a work as this, but purely on those of prudence and expediency. Let him shut up all his books, and put away his papers, on the Saturday night, resolving not to look upon, not to think of them (ex- cept in rare cases), till the following Monday. His mind must have an interval of rest, and this day is set apart for such a purpose, among others and higher, with infinite wisdom and goodness. God forbid that the student should be expected to convert this day of rest into one of religious labor, gloom and uneasiness. The " Sabbath was made for man, not man for the Sab- bath;" but can there be a more just and noble exer- cise than that of, at least once in the day, attending in General Conduct. Q'j the house of the God that made him, who has bestowed upon him all his faculties and opportunities, and will hereafter judge him for the use or misuse of them ; ridding himself of the distractions, purifying himself from the pollutions of worldly thoughts, and cherishing those of devout hope and thankfulness ? Is example necessary ? Among a " cloud of witnesses " may be cited the illustrious Hale, who "was so regular in the duties of religion," says Burnet, " that, for six and thirty years' time, he never once failed going to church on the Lord's day." Listen, finally, to the language of inspiration : " If thou turn away thy foot from the Sabbath, from doing thy pleasure on my holy day ; and call the Sab- bath a delight, the holy of the Lord, honorable ; and shalt honor him, not doing thine own ways, nor finding thine own pleasure, nor speaking thine own words : " Then shalt thou delight thyself in the Lord ; and I will cause thee to ride upon the high places of the earth, and feed thee with the heritage of Jacob thy father; for the mouth of the Lord hath spoken it." Nor let the student rob himself of the salutary leis- ure afforded by holidays and vacations. It is but a short-sighted policy to do so, with reference equally to mind and body. He will do infinitely more, and that more pleasantly, after a week or a month's complete intermission of his studies, than he would gain by de- voting all the vacation to them. Ne quid nimis should be rung in his ears, daily, by those who have access to an over-laboring student. They should address him in the weighty words of " the English Seneca," " mod- 68 Introduction to Law Studies. erate your own vehemincie ; suffer not yourselfe to doe all you could doe ; rise ever from your deske, not without an appetite. The best horse will tire soonest, if the reins lie ever loose on his necke ; restraints in these cases are encouragements ; obtaine therefore of yourselfe to deferre and take new daies. How much better is it to refreshe your mind with many competent meales, than to buye one day's gluttonie with the fast of many ? and if it be hard to call off our mind in the midst of a faire and likely flight, know that all our ease and safety begins at command of ourselves ; he can never taske himselfe well, that cannot favour him- selfe. Pursuade your heart, that perfection comes by leisure. The rising and setting of many sunnes (which you think slackens your worke) in truth ripens it. That gourd which came up in a day, withered in a day ; whereas, those plants which abide age, rise slowly." Ambition! what shall be said of it? That the first fruits of a legitimate professional ambition will be the patience, sobriety and steadfastness of which so much has been already said. If we beget not these, it will be the mere will-o'-the-wisp that has led thousands out of their way into the dreary bogs and marshes of failure, there to sink "Unseen, unpitied, hopeless! " True legal ambition is an eminently calculating and practical quality. It disposes the student to apportion his strength to his task ; to set his eyes upon worthy objects, and go about the attaining them, worthily — to look before he leaps. It deals with matter of fact alone, utterly discarding rehance on chance — a word General Conduct. 69 banished from its vocabulary. It sets a fool speculating on possibilities ; a wise man calculating probabilities. The one thinks, with vain sighs and wishes, on the e7id alone ; the other, having steadily fixed his eyes on it, resolutely sets about considering the means ; the one it makes passive, the other active. It is, in short, the balance-wheel in the well regulated mental mechanism ; a mere disturbing force in one ill-regulated. If the most eager and gifted of its votaries should deign to ask for a suggestion, it might be earnestly whispered in his ear, be calm, calculating, long-sighted ; think not of hop, step and jump, in the law, but rather gird up your loins for a long pilgrimage ; for the prize is splen- did, but distant. You cannot hasten the march of events, any more than the husbandman the course of vegetation. However anxious for his crops, however rich the soil, however propitious the weather, he must drop his seed into the ground and wait and watch till it makes its appearance in due season. So it is espe- cially with the legal husbandman. Learn your pro- fession thoroughly; do not attempt to become, as Lord Bacon has it, "a lawyer in haste;" the thing, be assured, is impossible; learn slowly, and well, that which will so enable you to acquit yourself brilliantlj'-, when " the occasion sudden " shall have arrived. A contrary method will mar all your prospects, rendering you turgid with conceit and presumption, and inflam- ing foolish friends with fallacious expectations. Ambition, well regulated and well directed, cannot fail of generating another capital quality of a promis- ing law student, decision of character, and that in re- 70 Introduction to Law Studies. spect of both intellectual and moral considerations. No genius, no industry, no energy, will avail in the legal profession without this quality. The student may, perhaps, select his course wisely, but how diffi- cult to adhere to it, through good and through evil report, through all doubts, obstacles and discour- agements. The fruit of his labors is so slow in ap- pearing, the toil so incessant and severe, that the stoutest-hearted is apt to grow awearied, and begin to waver from his purpose. He hesitates. He teases himself by asking, is he, after all, in the right, or, at all events, in the best way ? Is he not wasting his time ? throwing away his labor ? He begins to slacken, pause and look about him. How did so and so manage ? he wonders what would such a one recommend. He consults one, and another ; hears of a new course of study ; several of his acquaintance say there is nothing like it ; that he is quite in the wrong, he may depend upon it. The celebrated took this method. The fickle one listens and sighs. Forthwith the vessel tacks, and tacks again, and sails this way, and that way, till the daylight is gone, with his course more uncertain, and the port further off, than ever. Let the student, now, be early on his guard against this wretched frailty of purpose, this hesitating, fluctuating humor; and if he cannot overcome it, quit the law. Priusquam incipias, consulto sed ubi consulueris, ma- ture facto, opus est, must be his maxim. Let him re- flect upon the disposition young men have to laud, at the expense of all others, the particular course of study which they have adopted, caring not whether they have General Conduct. 71 been really successful or not; never thinking, in his blind flattery of their own superior discernment, of different soils requiring different modes of cultivation. Let the student deliberate as long as he chooses, before adopting his line of study; but, once fairly adopted, after the best advice he can obtain, let him adhere to it with manly firmness, unless, after a reasonable trial, it prove to be erroneous or unsuitable. Let him not go gadding, flittering and gossiping about among his friends, plaguing both them and himself by asking their opinions on what he is doing, but pursue the tenor of his way, and in due time he will assuredly reap the harvest. "But," he says, "I admire all this; I see its necessity : would I could reduce it to practice!" Let him, however, rely upon it, that the knowledge of the disease being half the cure, the more sensible he becomes of his deficiency, the more deter- mined he will be to supply it. A series of such efforts will beget the habit. Consider how all-important it is. What can be done in the business of life without it ? Is it not worth daily struggles to acquire this habit ? Why will he let his escutcheon be tarnished with this unseemly blot, when a few hard rubbings will get it out? The flighty purpose never is o'ertook, Unless the deed go with it : From this moment The very firstlings of my heart shall be The firstlings of my hand. And even now To crown my thoughts with acts, be it thought done ! Lastly, let the young student be early impressed with the certainty of one fact, that if he desire to attain to the coveted and dignified distinctions of office, 72 Introduction to Law Studies. whether judicial or otherwise, he must study to pre- serve, from the beginning to the end of his career, a character honorable and virtuous in the eyes of the profession and of the public. He must manifest, on all occasions, inflexible regard for truth, which will not admit of loose incautious statements, on even the most ordinary or trivial occasions. A short-coming in this respect is soon detected, equally by the Bar and the Bench. The moment that a man's representations, in addressing the court, are received with distrust, in re- spect of either his intentional suppression, or misrep- resentation, or rashness, carelessness, or thoughtlessness of statement, he has done himself, he may rely upon it, an injury that is irreparable. A thousand occasions, both great and small, arise in professional inter- course at the Bar, in which each party must rely im- plicitly on his opponent's honor and veractity. Let a gentleman once find himself deceived, let one or two more experience a similar fate, and he who has de- ceived becomes a marked man ; Niger is inscribed on his back — hunc tu, caveto, whispered whenever he is seen, or his name is mentioned. The authorities he may cite are distrustingly received, and narrowly scru- tinized, by his opponents ; so are the affidavits, the contents or purport of which he is stating to the court, and if detected in a single slip, he is instantly and severely exposed and rebuked. Besides a reputation for this strict veracity, a member of the Bar must be of a frank and honorable character and bearing, inca- pable of taking undue advantages of any sort, in even the most casual affairs of business. If he be otherwise. General Conduct. 73 it will quickly be discovered, as quickly known, resented and despised by all persons engaged in practice. There is, in fact, perhaps, no profession where integrity and high-mindedness tell so early, and so decisively, upon a man's character, position and prospects, as at the Bar.* There have been instances of splendid talents and acquirements unhesitatingly and steadfastly disregarded, because their possessor's integrity could not be im- plicitly depended upon; because even, without any specific provable imputation upon it, there was, among a competent and honorable body of men like the Bar, a prevalent impression to its disadvantage. That impression is generated by the perception of a num- ber of little traits and circumstances, to which he who is most concerned never, perhaps, gives a thought. If, for instance, he be addicted to immoral and profli- gate conversation ; if he openly indulge in a dissolute course of life; if he be chargeable with recklessness and unconscientiousness in money transactions ; if he evince a palpable disregard of, or contempt for, religion * Mr. Bishop, in his first book of the law, says : "A man with a con- tracted moral part may sometimes make a good physician, or even a good minister of the gospel, but he can never become a good lawyer." Lord Coke bears the following testimony to the necessity of integrity and virtue : " Cast thine eye upon the sages of the law that have been before thee, and never shalt thou find any that hath excelled in the knowledge of these laws, but hath sucked from the breasts of that di- vine knowledge, honesty, gravity and integrity ; * " * for hitherto I never saw any man of a loose and lawless life attain to any sound and perfect knowledge of the said laws ; and, on the other side, I never saw any man of excellent judgment in these laws, but was withal honest, faithful and virtuous. ' ' T. 74 Introduction to Law Studies. and its ordinances ; all these evil qualities and habits, and each of them, will produce disastrous effects in quarters not perhaps dreamed of by their unworthy exhibitant. A blameless course of life, on the contrary, an uncompromising Christian character, command uni- versal respect at the Bar. One thus rightfully dis- tinguished, even though not of high reputation for ability or learning, is more likely than one in whom these conditions are reversed, to be selected for honor- able posts in the profession. No apparent popularity at the Bar can supply the want of its respect and esteem. It is a body, the student is assured, sternly just and exacting; and its silent Jiai is as potent as irreversible. That Bar knows how to appreciate a character for good fellowship, and be amused by powers of entertainment ; but if, at the same time, it perceive moral worth to be wanting, it feels no interest in a man's elevation to high position, no sympathy with one who has attained it, without the respect of those whom he has left be- hind. Undeserved advancement, in the same propor- tion, dishonors a noble profession, compromises the public interest, and is of fearful ill example. We cannot more fitly close this chapter than in the words of Lord Erskine, whose brilliant success at the Bar was a most convincing proof of the value of the rules of conduct which he followed. " It was a first command and counsel of my earliest youth," he said, " always to do what my conscience told me to be a duty, and to leave the consequences with God. I shall carry with me the memory, and I trust the practice, of this parental lesson to the grave. I have hitherto General Conduct. 75 followed it, and I have no reason to complain that my obedience to it has been a temporal sacrifice. I have found it, on the contrary, the road to prosperity and wealth, and I shall point out the same path to my children for their pursuit." 76 Introduction to Law Studies. CHAPTER V. Mental Discipline. It has been well said, that, in planning the destinies of a young lawyer, it should not be forgotten, that the greatest men are not those who know the most, but those who can do the most ; that he who is forever reading can have no time for thinking, for organizing and classifying his knowledge, and for so incorporating it with his mind, that it becomes a part of him, and can be used at a moment's notice with vigor and pre- cision. "Who can do most?" These are homely words; but what do they signify and imply? The whole scope of the present chapter ; setting the mind in working trim, and that, as early and efficiently as may be ; having put weapons in the hand of a recruit, teaching how to use them in action. " Legal studies," observes an able writer, "eminently invigorate and fortify the mind's noblest faculty — the power of attention; they discipline the understanding, excite discrimination, give activity and acuteness to the apprehension, and correct and mature the judgment." Never, perhaps, did they receive a juster panegyric; but how long is it before these effects make their ap- pearance in the great body of legal stuc^ents ? What a capacity for energetic and persevering application is presupposed ; and how few possess it. The thresh- hold of the law is, besides, as before intimated, thronged Mental Discipline. 77 with numerous and peculiar obstacles ; and the inex- perienced, undisciplined, eager tyro, however great his , natural parts, is apt to get quickly discouraged, and either abruptly give up, or indefinitely postpone, the effectual prosecution of his studies. On the contrary, a mind duly disciplined before entering the profession will soon find the law a delightful pursuit — labor ipse voluptas — its difficulties vanishing before him, as chil- drens' bugbears before the morning sun. How few, however, stand "firm upon this vantage ground." How few young men really think ; how many affect it ; how many are given credit for it; how easy to sim- ulate it. How many choice intellects have been ruined through early indolence or a vicious education ! How easy is it for the youthful mind to slip into slov- enly habits of thought, which cannot be laid aside, and which utterly incapacitate for intellectual exertion ! It is one thing to store the mind early with information, and another to train its budding faculties for severe exertion. "The pains and application," says Roger North, " must be in the youth ; and that gone, the opportu- nity is lost. A man has but one youth, and consider- ing the consequence of employing that well, he has reason to think himself very rich ; for that gone, all the wealth in the world will not purchase another. It would seem strange, if experience did not confirm it, that a man's age should be hke the seasons of the year ; for if you sow in harvest, when are you to reap ? The spring is the time to commit seeds to increase ; and if a man gets not his skill when young, he is like 7* 78 Introduction to Law Studies. never to have any at all ; for the soil becomes arid as age advances, and whatsoever is scattered upon it, takes no thrift, but perishes and starves." The task undertaken in this section is that of con- tributing somewhat toward remedying that early neg- ligence, and those deficiencies, which have resulted in the sad spectacle of a volatile and undisciplined mind, growing incapable of attention and close thought. Let us set out with the cheering assurance of the prince of philosophers : " Abeunt studia in mores (manners are influenced by studies) : nay, there is no stond or impediment in the wit," says Lord Bacon, "but may be wrought out by fit studies ; like as diseases of the body may have appro- priate exercises. Bowling is good for the stone and reins, shooting for the lungs and breast, gentle walking for the stomach, riding for the head, and the like. So, if a man's wit be wandering, let him study the mathe- matics, for in demonstrations, if his wit be called away never so little, he must begin again. If his wit be not apt to distinguish, or find differences, let him study the schoolmen, for they are ' Cymini Sectores ;' if he be not apt to beat over matters, and to call upon one thing to prove and illustrate another, let him study the lawyers' cases ; so every defect of the mind may have a special receipt." Lord Bacon's encomiums on the study of mathe- matics, as affording the best discipline for an ill-regu- lated mind, are numerous and emphatic. In addition to the one contained in the foregoing paragraph, he has said, elsewhere, "pure mathematics do remedy, Mental Discipline. 79 and cure, many defects in the wit and faculties intel- lectual ; for if the wit be dull, they sharpen it ; if too wandering, they fix it ; if too inherent in the sense, they abstract it." And again, "if a child be bird- witted, that is, hath not the faculty of attention, math- ematics give a remedy thereto ; for in them, if the wit be caught away but a moment, one is to begin anew." And yet once more : " As tennis is a game of no use in itself, but of great use, in respect it maketh a quick eye, and a body ready to put itself into all postures; so in the mathematics, that use which is collateral and intervenient is no less worthy than that which is prin- cipal and intended." Professor Leslie, also, a dis- tinguished and accomplished mathematician, has borne decisive testimony to the value of the study of geom- etry, if regarded even as a means of mental exercise only. "The demonstrations left by the Greek geometers are models of accuracy, clearness and elegance, admirably calculated for training the minds of youth to habits of close reasoning and luminous arrangement." It were, however, superfluous to accumulate testimonies to the same effect; yet one more may be cited, because brief, and proceeding from one whom a competent judge has pronounced to be " a person of the very first rate eminence at the Bar, and one of the few lawyers who fully sustained in parliament his great forensic reputa- tion." " Geometry," said Lord Ashburton, " will afford to the young lawyer the most apposite examples of close and pointed reasoning." Some years ago, a young gentleman of superior natural talent, having had an average classical education, was, in his twenty- 8o Introduction to Law Studies. first year, desirous of coming to the Bar. He had read much of what is called "hght literature," but indolently and discursively ; had even written not a little, nor unsuccessfully, for the press ; and had several times found opportunities for speaking in public, on political subjects ; acquitting himself, on such occasions, successfully — being fluent, ready and ingenious. In short, he had contrived to pass among a pretty large circle of acquaintances, as a "decidedly clever man." Some casual observation made by a Cambridge friend of his, concerning the use of geometry in testing the strength of the reasoning powers, induced, on return- ing that evening to his lodgings, to take down a copy of Euclid, which he recollected had long lain on one of the upper shelves of a bookcase belonging to his landlord. After glancing over the definitions, axioms and postulates, he, in like manner, and in 'his then usual superficial way ' read over the first problem and saw nothing so very wonderful in it. Some impulse or other moved him to read it again, and very attentively ; that inducing him, after a thoughtful pause, to read it a third time, still more attentively than before. After this, he rose from his chair, ' in a sort of trepidation,' and felt that he had suddenly made a great discovery, viz., that till then 'he had really known nothing what- ever of the connection between premise and conclusion, — in short, of real reasoning,' — and he passed a night of sleepless despondency. On the morrow, however, he betook himself to action, and turning his discovery to good account, addressed himself immediately to the study of Euclid, overcoming a thousand risings of Mental Discipline. 8i weariness, disgust and even despair, till he had mastered several of the earlier books. Then he attacked algebra; went to the university- pretty well prepared, and acquired considerable dis- tinction there. ' I never now,' says he, 'think of Eu- clid, who taught me first that I had an understanding which I could not use, and then showed me how to use it, without feeling all the reverence and affection due to so august an instructor. I am conscious that he changed the whole character of my mind, and gave my only chance of success in life. By the time that I had really mastered the first three books, not with the design of becoming a mathematician, but simply of learning to reason, I became sensible of a great im- provement in my faculties, occasioning me unspeakable satisfaction, mingled with secret shame and vexation at the frivolous, indolent and superficial habits of thought with which, up to the moment of discovering their existence, I had been content.' There doubtless exist many similar instances of the signal advantage derived from a study of Euclid, — though pursued only to the extent, and with the object above men- tioned, — as eminently calculated to detect existing deficiencies, to test the native strength of the intellect, to fix a wavering, and invigorate a weak one. The exquisite and faultless logic with which each demon- stration is fraught cannot fail of producing the happi- est effect upon a mind of even but average capacity, bent upon becoming familiar with the process. It is possible, however, that the student may imagine him- self attaining this object, though all the while really 82 Introduction to Law Studies. doing nothing but committing to memory, his reason- ing faculties being not appealed to, and utterly uncon- cerned in the operation ; in fact, fast asleep. This would be a sad mistake, indeed ; yet it is of too frequent occurrence. " One who does not understand the principles of Euclid's demonstrations," justly ob- serves Archbishop Whately, " however much he may have learnt by rote, knows absolutely nothing of geometry. Unless he attain this point, all his labor is utterly lost ; worse than lost, perhaps, if he be led to believe that he has learnt something of a science, when, in truth, he has not ; and the same is the case with logic, or any other science. There are some persons (probably not above one of ten, of such as have, in other respects, tolerable abilities) who are physically incapable of the degree of steady abstraction requisite for really embracing the principles of logic, or of any other science, whatever pains may be taken by them- selves or their teachers ; but there is a much greater number to whom this is a great difficulty, though not an impossibility." These remarks are equally correct when applied to the case of one desirous of studying geometry or mathematics, in order to acquire a prac- tical knowledge of them, and to that of one seeking from them that " collateral and intervenient use" spoken of above by Lord Bacon, viz., the "exercise and dis- cipline of the reasoning powers." It is possible to commit accurately to memory some twenty or thirty theorems, without having had even a glimpse of their real meaning and principle — as may become painfully evident to one who has thus addressed Mental Discipline. 83 himself to Euclid, on being tried with a very simple "deduction." Let pen, ink and paper be given him, and let him sit down to accomplish the feat of drawing from a given point the shortest possible line to a straight line. Let him, if puzzled, be told that he can do this by the aid of two theorems, which he may suppose himself to have thoroughly mastered, in the first book — the 19th and 3 2d ; even then, he may be unable to solve the mystery. It is true, that some have a special aptitude for mathematics, and others are unconquerably disinclined to, and incapacitated for them; but the most scientific elementary statement of legal principles may be in the same position with reference to an eager, un- disciplined tyro. Let not, however, a young or timid reader of these pages be disheartened. The memory is not the only faculty improvable. The perception may be quickened, and the judgment strengthened, and the reasoning powers developed to an indefinite extent, by appropriate and persevering exercise. It is, in fact, with the mind as with the body. If only one set of muscles should be exercised, that set alone will be developed and strengthened at the expense of all the others ; wherefore it is that divers species of gymnastic exercises have been discreetly contrived for the purpose of bringing fairly into play all the various muscles of the body. When these are judiciously adopted, how great is the advantage, and why not apply the same principle to mental exercise ? Why should any, or any one, of the faculties of the mind be exclusively, or all but exclusively, used and disci- plined ? 84 Introduction to Law Studies. There are many persons of strong, but untrained intellect, who entertain that invincible repugnance to mathematical science, which has been alluded to, and who would rather, so to speak, take their mental physic in any other way. Other, and effectual modes there are, but, before pointing out one of them, it may be well to premise a little concerning the subject of Logic. He who desires to fit himself for a profession which consists almost altogether of reasoning will, of course, be desirous of early acquainting himself with at least the general principles of that subject All our great law writers have more or less insisted on the necessity of such knowledge. The work which we have selected as best calculated for the exercise of the student's rea- soning powers is, in the opinion of an eminent logician (Dr. Copleston, Bishop of Llandaff), " not intelligible, even in a single page, to one who is ignorant of logic." Before, therefore, sitting down to the task which will be presently laid before him, he cannot do better than read with attention the concise and luminous Treatise on Logic by Dr. Whately, Archbishop of Dublin. He has disentangled logic — whether viewed as an art or as a science — from the metaphysics with which it had, till his time, been blended and confounded ; he has placed it upon its proper basis, and pointed out its true character and functions. The student may omit, for a while, the " Synthetical Compendium," the most diffi- cult and technical portion of the work ; but all the rest should be read with great care — especially that " Of Fallacies." If, however, he have not leisure or inclina- Mental Discipline. 85 tioh for this work, one may be mentioned of far less scientific pretensions, perhaps, but well worthy of his attention — the "Elements of Thought," by Mr. Tay- lor, of Ongar, a spare duodecimo, but containing a simple, lucid, and able exposition of the leading prin- ciples of logic, as well as popular definitions and illus- trations of terms that are oftener confidently used, than distinctly understood. Chillingworth is the writer whose works are recom- mended for the exercitations of the student. Lord Mansfield, than whom there could not be a more com- petent authority, pronounced him to be a perfect model of argumentation. Archbishop Tillotson calls him "incomparable — the glory of his age and nation." Locke proposes, " for the attainment of right reasoning, the constant reading of Chillingworth ; who, by his example," he adds, " will teach both perspicuity and the way of right reasoning, better than any book that I know ; and therefore will deserve to be read upon that account, over and over again ; not to say any thing of his arguments." Lord Clarendon, also, who was particularly intimate with him, thus celebrates his rare talents as a disputant, " Mr. Chillingworth was a man of so great subtlety of understanding, and so rare a temper in debate, that as it was impossible to provoke him into any passion, so it was very difficult to keep a man's self from being a little discomposed by his sharp- ness and quickness of argument, and instances, in which he had a rare facility, and a great advantage over all the men I ever knew. He had spent all his younger time in disputation ; and had arrived at so 8 86 Introduction to Law Studies. great a mastery, as he was inferior to no man in these skirmishes." After reciting such splendid testimonials as these, the student, it is to be hoped, will feel eager to avail himself of the advantages to be derived from the great work which called them forth, i. e., " The religion of Protestants a safe way to salvation." It was written in answer to one Matthias Wilson, a Jesuit, who (under the name of Edward Knott) had replied to Dr. Chris- topher Potter's answer to him, in a work entitled, " Mercy and Truth ; or charity maintained by Catho- lics ; " and this brought down upon him a tremendous opponent — Chillingworth.* Both of them were con- summate logicians, and, as may easily be believed, did all that the best wit of man could do, in defense of their respective churches. The poor Jesuit receives no quarter from his stern but calm antagonist, who begins with the very preface, and overturns seriatim every paragraph, down to the very end of the book. Per- haps there is no instance on record of a more formal logical contest than this. Chillingworth first gives entire the chapter in his adversary's book, in numbered paragraphs, and then his own answer, as if determined that both bane and antidote should be thus eternized * Poor Knott, dismayed at hearing that Chillingworth was preparing to take the field against him, published a work before-hand, to prejudice the public against Chillingworth and his book, by charging him with Socinianism : and after Chillingworth's work had been published, en- deavored to destroy its great popularity by writing another, to accuse him of infidelity. One Francis Cheynell, a fanatical opponent of Chil- lingworth, attended at his funeral, and flung his famous book mto the grave, wishing that it might " rot with tlie author." Mental Discipline. 87 — that all future readers should be able to judge which was the conqueror. Let, then, the student who is in earnest about the discipline of his mind procure this great work, and thoroughly exercise himself in it. He need not be long about it, if he will but set upon his task heartily ; but the consequences will be happy and permanent. As one of our judges said somewhat quaintly of Lord Coke — " the doses I took of Coke in early youth, operate even now ; " so may say, in after life, the pupil of Chillingworth. If the student do not choose to read the whole work — which, even including the very copious citations from his opponent's book, does not occupy more than two octavo volumes — let him select some particular chapter — the second, for instance, " on the means whereby the revealed truths of God are conveyed to our under- standing, and which must determine controversies in faith and religion " — perhaps the most elaborate and perfect of all. He must first read over the Jesuit's account of the Rule of Faith, and possess himself of the full scope and drifts of its argument, before enter- ing upon the answer of Chillingworth. Let him ana- lyze it on paper, and keep it before him, to assist his memory. Go, then, to Chillingworth. Take, first, a birds -eye view of the whole chapter, and then apply yourself leisurely to the first half dozen pages. Pause after reading a few sentences ; look off the book into your mind, and satisfy yourself that the thought, not the language, is there, fully and distinctly. Proceed thus through the whole, carefully marking the stages 88 Introduction to Law Studies. of the argument, the connection of each thought with the other, and the general bearing of the whole. Set your author, as it were, at a little distance from you : watch how warily he approaches his opponent — with what calm precision and skill he parries and thrusts. Imagine yourself to be in the Jesuit's place : can you find an instant's opening ? Is your opponent ever off his guard ? Does he ever make a false thrust ; or fail of parrying the best of his antagonist ? Can you dis- cover, in a word, a defect or a redundancy, either in thought or expression ? Can you put your finger any where upon a fallacy ? Try ! Tax your ingenuity and acuteness to the uttermost ! Having thoroughly possessed yourself of the whole argument, put away your book and memoranda, and try to go over it in your mind. Endeavor to repeat it aloud, as if in oral controversy ; thus testing not only the clearness and accuracy of your perceptions, but the strength of your memory — the readiness and fitness of your language. Let not a film of indistinctness remain in your recollection, but clear it away, instanter, by reference — if necessary — to your book. Not content even with this, make a point, the next day, of writing down the substance of your yesterday's read- ing, in as compendious and logical a form as possible, and go on thus, step by step, through the whole argu- ment. Having so looked minutely at the means and the end — at the process and the result, at the whole and its parts — having completely mastered " this great argument " in all its bearings, you will be conscious of having received an invaluable lesson from one of the Mental Discipline. 89 subtlest and most powerful disputants that perhaps the world ever saw. All the faculties of your mind, many of them heretofore dormant and torpid, will have been drawn out into full play — will have been set, as it were, upon the qui vive. You will see at once both your weak and your strong points, and guide your future efforts accordingly. All this may look, on paper, tiresome, discouraging and unprofitable ; it may seem so, at first, in practice. You may sit down somewhat sore and exhausted, possibly, as from your first drill ; but persevere ! You will soon perceive the salutary effects and beneficial tendency of these intellectual gymnastics ! The soreness of your muscles will rap- idly abate, as their activity and strength increase, not only sensibly but incredibly, with each succeeding lesson. You will thus have put yourself, as the pugil- ists have it, into thorough training. Say that two hours a day, for several months, are thus spent, is there any proportion between the pains and the profit ? The toil may seem severe, and for a while thankless ; but it will be attended with permanently beneficial effects. Is it not worth a resolute trial ? Young reader, we charge you to make it ! to search and see what stuft your mind is made of. If you break down under it, if you are really unequal to it — if you cannot accus- tom yourself thus to patient and coherent thought, we beg of you to pause, before committing yourself to the legal profession. Do not, however, give up at the end of a week, fortnight, or even a month ; persevere for several months ; as often as you fly off, come back again; whenever you stumble, rise again and run. 8* po Introduction to Law Studies. Your breath may now and then fail you, your limbs may tremble under you, your heart may sink; but persevere ! At the same time that this drilling is going on, form the resolution, ' whatever your (mind) findeth to do, to do with your might' Never, on any pre- tense, on any occasion, suffer yourself to rest satisfied without a full and distinct understanding of what you are about. Never run away with a hasty half-formed impression — even of a paragraph in a newspaper. Remember it is the habit that you are concerned about forming. It is only in this way that you can ever get the complete control over your thoughts — that you can set your mind into real working trim. "There is no talent, I apprehend," says Dugald Stewart — and it is a most important observation — " so essential to a public speaker, as to be able to state clearly every different step of those trains of thought by which he himself was led to the conclusions he wishes to establish. Much may be here done by study and experience. Even in those cases in which the truth of a proposition seems to strike us instantane- ously, although we may not be able, at first, to discover the media of proof, we seldom fail in the discovery, by perseverance. Nothing contributes so much to form this talent as the study of metaphysics — not the absurd metaphysics of the schools, but that study which has the operations of the mind for its object. By habituating us to reflect on the subjects of our consciousness, it enables us to retard, in a considerable degree, the current of thought; to arrest many of those ideas which would otherwise escape our notice ; Mental Discipline. 91 and to render the arguments which we employ for the conviction of others, an exact transcript of those trains of inquiry and reasoning which originally led us to form our opinions. Chillingworth has been named, for the reasons above assigned, as eminently calculated to subserve the pur- poses of mental discipline, for the student. He need not, however, be the only one. The subtle and pro- found reasonings of Bishop Butler, the pellucid writings of Paley, the simplicity, strength, and perspicuity of Tillotson, may all be advantageously resorted to by the student anxious about the cultivation of his reasoning faculties. Unless, however, he be one of those who entertain the invincible prejudice to mathematics before spoken of, we must insist upon it, that he will find his best interests furthered by a study of the first six books of Euclid. They are better calculated than any thing in the world to test the native strength of the intellect, to fix a wavering one, to invigorate a weak one. One who is really anxious about the discipline of his thoughts, may render even his amusements subservient to this purpose. Chess, whist, and cribbage, are all excellently calculated to chain a wandering mind to its task, — to induce those habits of patient and vigi- lant attention, cautious circumspection, accurate calcu- lation, and forecasting of consequences, which are essential to the successful study and practice of the law. It has very frequently struck the author that these little games would be to many the first and best possible steps toward mental discipline, especially if played with reference to such an object. They will 92 Introduction to Law Studies. be found invaluable correctives of an erratic and vola- tile humor, — pleasant and most efficient auxiliaries. The student who resorts to them with this view, will, of course, take care to avoid their dissipating incidents and tendencies ; prudently selecting those only for his antagonists who are not only expert players, but " like- minded with himself" By means such as have been above suggested, ener- getically adopted and preserved with, it is confidently predicted that an intellect of only moderate pretensions may be enabled to overcome all the difficulties that beset legal studies. His watchful and patient frame of mind will enable him to sit down calmly and unwind the most tangled skein that can be brought before him. He will go on in his course steadily and cheerily amidst numbers of his competitors, who are either drooping under the unexpected fatigues they have encountered, or returning with disgust, if not disgrace, from a cam- paign that ought never to have been undertaken. " Growing every day," to adopt the language of Burke, " more- formed to affairs, and better knit in his limbs,'' he will be delighted and surprised at the rapidity with which the most formidable obstacles disappear from before him. Not only will he thus pleasantly proceed through the course of his studies, and be enabled, at an early period, to enter into practice with credit and advantage, but he will also be conscious of having gained a great accession of intellectual vigor. His mind no longer flits and flutters about butterfly-like, but settles upon every object with bee-like precision, industry, and success. The difficulties, intricacies, and Mental Discipline. 93 obstacles, that dishearten and confound so many, are his congenial pursuits. His " amicable contests with difficulties," will, to adopt the beautiful expression of Burke, already quoted, " have strengthened his nerves and sharpened his skill, — will have obliged him only to an intimate acquaintance with his objects, and com- pelled him to consider them in all their relations. A knotty "case," complicated "pleadings," a ponderous "brief," will be the welcome signal to be "up and doing," with all his practised energies and acquire- ments, securing at once profit and distinction to him- self, and success to his clients. " But," murmurs, possibly, an impetuous, or sneering, or desponding reader, " what a fuss, all this about a trifle ! Is there one man out of twenty of those who have succeeded at the bar, that ever went through such 'training' and 'drilling' as you are urging ?" Perhaps they did not adopt the particular means here suggested. They were men, possibly, of great natural abilities, — some of whom had received the advantages of con- summate academical discipline, while others had ex- pended a vast amount of misdirected and excessive labor. Look, however, hesitating student, not at those who have succeeded, but at the throng of those who have FAILED ! Who have failed — and yet, perhaps, would have splendidly succeeded, had but some experi- enced friend stood beside them at starting, whispering such directions as we have here humbly endeavored to offer! and so, by imposing a little timely and judicious discipline, have saved years of misdirected and abortive toil — a thousand pangs of despair ! 94 Introduction to Law Studies. The author considers that he cannot better conclude this chapter than with the pointed and valuable obser- vations of Dugald Stewart. " In what consists practical or experimental skill, it is not easy to explain completely ; but, among other things, it obviously implies a talent for minute, and comprehensive, and rapid observation ; a memory at once retentive and ready; in order to present to us accurately, and without reflection, our theoretical knowledge ; a presence of mind not to be disconcerted by unexpected occurrence, and, in some cases, an uncommon degree of perfection in the external senses, and in the mechanical capacities of the body." All these elements of practical skill, it is obvious, are to be acquired only by habits of active exertion, and by a familiar acquaintance with real occurrences ; for, as all the practical principles of our nature, both intellectual and animal, have a reference to particulars, and not to generals, so it is in the active scenes of life alone, and amidst the details of business, that they can be cultivated and improved. The rertiarks which have been already made are sufficient to illustrate the im- possibility of acquiring a talent for business or for any of the practical arts of life without actual experience. General Knowledge. 95 CHAPTER VI. General Knowledge. The engrossing nature of legal pursuits, whether in study or practice, is apt to render those who undertake them indifferent both to the acquisition and retention of that general knowledge, that large acquaintance with men and things, which is essential to constitute a superior member of society, especially of a liberal profession. Now it is of great and pressing import- ance that the student of jurisprudence aspiring to superior excellence should give this matter serious consideration. Let him assure himself that the longer the acquisition of such knowledge is neglected, the more difficult will«be the remedy, more poignant his regret, more frequent his exposure to mortification; while an early systematic and prudent cultivation of it will ensure him numerous and often overwhelming advantages over those who have not thought it worth their while to adopt a similar course. Does he really relish the idea of creeping in this age, too, of advanced intelligence, for the rest of his life, beetle-like, through the dusky passages of chambers and courts, for ever answering cases, drawing conveyances or pleadings, and wrangling with brother barristers, or witnesses ? Is this the spirit in which to enter a liberal and enlightened profession, drawing far beyond all others on intellect and acquirements, richly rewarding the possession, and visiting with conspicuous expense and mortifica- tion the want of either? It is true that the very g6 Introduction to Law Studies. practice of the profession necessitates the acquisition of considerable general knowledge of a practical char- acter, — the details, for instance, of trades, manufac- tures, commerce, the arts and sciences, and even the lighter occupations and amusements of society ; but will these materials suffice to build up the character of a scholar and a gentleman, — of one who should be as anxious to reflect credit upon his profession as to derive credit from it. The scientific study of that profession requires highly trained faculties and knowl- edge of a superior order; and the practice of it, so studied, is refined, elevated and adorned by great acquirements, — at once investing it with ever varying interest to the accomplished practitioner, and attract- ing to him the esteem and applause of cultivated society. It is in vain to think of preserving an exact recollec- tion of the minutiae of scholarship, the exquisite niceties of grammatical construction, dialect and prosody ; but are all the traces, therefore, to fade away, of ancient poetry, criticism, history, biography, philosophy ? The sublime strains of Homer, Eschylus, Sophocles, Eurip- ides, to be soon utterly forgotten ? The thought is sufficiently shocking, but, nevertheless, the result inev- itably is so, where a man is ingrate enough to be at no pains about the matter, — who will not set apart a little time — a few occasional hours, to refreshing, con- verse with his early favorites. He could not have loved truly, that can part so easily. If it be but once or twice in a month that our student can shut his door upon the hubbub of his profession, of the world, and General Knowledge. 97 enter into communion with the great ones of antiquity, the interview he thus secures will indeed be precious. It will be like touching the harp that long ago had drowned him in a " distant paradise," reviving a thou- sand pure, tender and ennobling recollections of those days, " When the freshness of thought and of feeling were his. As they never again can be." As for the sterner studies of mathematics, many may choose to regard them as functa officio, in the discipline to which they have subjected the under- standing ; yet, it may be asked, is it%othing to part, forever, with the keys that unlock the grand storehouse of physical science, as will assuredly be the case, un- less, in the language of our prince of philosophers, the "fundamentals of philosophy be oft revisited." Per- haps, however, it may safely be taken for granted, that those here spoken of — those early and happily familiarized with classical and philosophical pursuits, and possessed of minds capacious, retentive and in- quisitive after truth, will never suffer themselves to be enslaved by any one pursuit, even though it be that in which are embarked all their hopes of advancement and distinction in life. Edmund Burke has left on record a passage which is earnestly commended to the thoughtful attention of these students before entering upon their professional career. " It is a lively picture," says Dugald Stewart, " of the insufficiency of mere experience to qualify a man for new and untried situations in the administration of 9 98 Introduction to Law Studies. government. His observations are expressed with his usual beauty and felicity of language ; and are of so general a nature that, with some trifling alteration, they may be extended to all the practical pursuits of life." " Sir, if such a man fell into error, it must have been from defects not intrinsical ; they must be rather sought in the particular habits of his life; which, though they do not alter the groundwork of character, yet tinge it with their own hue. He was bred in a pro- fession. He was bred to the law; which is, in my opinion, one or the first and noblest of human sci- ences, — a science which does more to quicken and invigorate the understanding than all the other kinds of learning put together; but it is not apt, except in persons very happily born, to open and to liberalize the mind exactly in the same proportion. Passing from that study, he did not go very largely into the world, but plunged into business. I mean into the business of office, — and the limited and fixed methods and forms established there. Much knowledge is to be had, undoubtedly, in that hne. And there is no knowledge which is not valuable. But it may be truly said, that men too much conversant in office, are rarely minds of remarkable enlargement. Their habits of office are apt to give them a turn to think the subs- ance of bu.siness not to be much more important than the forms in which it is conducted. These forms are adapted to ordinary occasions ; and therefore persons who are nurtured in office do admirably well as long as things go on in their common order; but when the General Knowledge. 99 high roads are broken up, and the waters out, — when a new and troubled scene is opened, and the file affords no precedent, — then it is that a greater knowl- edge of mankind, and a far more extensive compre- hension of things is requisite, than ever office gave, or than office can ever give." Proceeding now to the case of those who, modestly conscious of the want of early advantages, are naturally reluctant to acknowledge the extent of their deficien- cies to others, or are without access to more competent advisers, some suggestions will now be offered for their guidance. The task thus undertaken, however, is felt to be difficult and delicate. Well may good old Bishop Hall say, that, " Some travelers have more shrunk at the map than at the way: between both how many sit still with their arms folded ? " " It has been, and is," observed an able critic of the last edition of this work, "too much of the fashion, in writings, profess- ing to point out the course of study fitted to form an accomplished barrister, to lay out a map of so immense a pile of knowledge, that every one with common sense must see the impossibility of any one man hav- ing time and strength to travel over it." Works are now lying before the author, liable to these strictures; in which "courses of reading" are prescribed, even "for attorneys and solicitors," at once ludicrous and sickening; filling a student with despair, or inspiring just contempt for his self-constituted adviser. After all, however, there is an immense difference between the well and the ill-informed man ; and he is likely to fall among the latter class who early makes 100 Introduction to Law Studies. up his mind to entertain disparaging views of general knowledge, as an inglorious retreat from the effort requisite to acquire and retain it. It is plainly impos- sible that any man should acquire a knowledge of all that is to be known on all subjects ; but is it, then, meant, that on each particular subject on which he does learn anything at all, he should be perfectly well- informed ? In most subjects, the utmost knowledge that any man can attain to is but a " little learning " in comparison with that of which he remains ignorant. The view resembles that of an American forest, in which the more trees a man cuts down the greater is the expanse of wood he sees around him. What are we to do ? Simply to impress upon ourselves, and upon all, the importance of laboring in that much neglected branch of human knowledge, — the knowledge of our own ignorance, and of remembering that it is by con- fession of real ignorance that real knowledge must be gained. It is only by this ignorance of our igno- rance, that " a little learning " can become " a danger- ous thing." The dangers of knowledge are not to be compared with the dangers of ignorance. A man is more likely to miss his way in darkness than in twi- hght; in twilight than in full sun. A slight and superficial knowledge is justly condemned, when it is put in the place of more full and exact knowledge. There are, however, different kinds of scanty knowl- edge ; the rudimentary and the superficial. According to a man's calling, natural bent, and opportunities, he should make some pursuit his main object; then getting a slight knowledge of what else is worth it; regulated General Knowledge. ioi in his choice, by the same three circumstances ; which should also determine where an elementary, and where a superficial knowledge is desirable. He should learn a little at both ends ; that is, endeavor to understand the elementary and fundamental principles, and also some of the most remarkable results, — a little of the rudiments, and a little of what is most called for in practice. Such are, in substance, the views of a teacher of authority and eminence. Archbishop Whately. Whatever use a reader may be disposed to make of any of the hints which follow, let him, if he have the opportunity, submit them to some learned and discreet person. Quot homines, however, tot sententice ; and each man is naturally partial to methods and courses of study which he has followed himself The applicant must therefore expect to hear such remarks as : " I do not see such a work here ; " or " such another work ought not to have been here at all ; " and " all courses of study are objectionable which have not special reference to an individual, and his particular position." It may certainly be so ; and the reader will consequently attach what weight he pleases to such observations, and adopt such, and so many, only, of the ensuing suggestions, as he or his competent adviser may approve of Let him, however, bear in mind the following weighty passages : First, of Lord Bacon : " Read, not to con- tradict and confute, nor to believe and take for granted, nor to find talk and discourse, but to weigh and con- sider. Some books are to be tasted, others to be swallowed, and some few to be chewed and digested." Upon this pregnant paragraph, his recent annotator, 9* I02 Introduction to Law Studies. Archbishop Whately, thus remarks: "It would have been well if Bacon had added some hints as to the mode of study; how books are to be 'chewed,' and ' swallowed ' and 'digested.' For, besides inattentive readers, who measure their proficiency by the pages they have gone over, it is quite possible, and not un« common, to read most laboriously, even so as to get by heart the words of a book, without really studying it at all, that is, without employing the thoughts on the subject." " Nothing, in truth," says Dugald Stew- art, " has such a tendency to weaken, not only the powers of invention, but the intellectual powers in general, as a habit of extensive and various reading, without reflection. The activity and force of the mind are gradually impaired, in consequence of disuse ; and, not unfrequently, all our principles and opinions come to be lost in the infinite multiplicity and discordancy of our acquired ideas. It requires courage, indeed (as Helvetius has remarked), to remain ignorant of those useless subjects which are generally valued ; but it is a courage necessary to men who either love the truth, or who aspire to establish a permanent reputation." On the Study of History. 103 CHAPTER VII. On the Study of History. History must be one of the earliest objects of a young lawyer's attention. "The student of PoHtics or Public Law," says Lord Woodhouselee, "is presumed to have that previous acquaintance with history which it is the object of a course of historical study to com- municate; 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 Isaeus, has some observations on the neces- sity 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 pleas- ure or which seems more likely to prevent his being disgusted with the dry elements of a very complicated science, than the history 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 deHght, and whose actions have raised his admiration, he will feel the satisfaction of a patriot, in observing the pref- erence, due, in most instances, to the laws of his own 104 Introduction to Law Studies. country, above those of all other states. If his first prospects in life give him hopes of becoming a legis- lator, he may collect many useful hints for the improve- ment 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 uniformity among all nations, whatever seas and mountains may separate them, or how many ages soever may have elapsed between the periods of their existence, in those great and fundamental principles which, being clearly deduced from 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 institu- tions, are consequently as various as the wills and fancies of those who enact them." As the basis of a sound and comprehensive course of historical study may be taken " Tytler's (Lord Woodhouselee's) " Universal History, from the begin- ning of the world to the beginning of the eighteenth century," — ending, in fact, with the death of Peter the Great, in the year 1724. An excellent historical Vade Mecum will be found in Keightley's " Outlines of History," — a small i2mo. volume of 460 pages. It divides history into three parts: Ancient History, the Middle Ages, Modern History, — the last closing with the year 181 5- The author's aim is to give a correct, and, as far as the limits On the Study of History. loj would permit, a comprehensive epitome of the history of the world, which accuracy of narrative and chro- nology would render valuable as a book of reference, and in which general views and reflections would re- move the dryness inseparable from a mere enumeration of facts. This excellent performance affords a birds-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 regarded as revisiting boundaries. In approaching the important province of Grecian and Roman history, a remark of Mr. Keightley, an excellent elementary writer on each, is worthy of at- tention. "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 history is that of the people, not of its rulers. The most important 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 Oriental his- tory in general so barren of instruction ? Simply be- cause 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 lo6 Introduction to Law Studies. and object of their institutions, and the nature of that evidence on which the historian must rely. Such an historian has been found, to the credit of our own age and country, in Mr. Grote. Completely immersed, so to speak, in his subject, he has made it, with all the devo- tion of ancient genius and determination, the patient labor of a life. To an imagination susceptible enough for sympathy with all that is beautiful, he unites a thor- oughly independent, critical and philosophical temper- with a strength of purpose which have enabled him at length to accomplish his object. 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 pretensions. Dr. William Smith, 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 opin- ions, and tested his statements by a reference to his authorities, he has been in almost all cases compelled to adopt his conclusions even when in opposition to generally received opinions 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 within the present gene- ration. One remark, however, 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 Metaphysical, and On the Study of History. 107 the Positive," he adopts implicitly as a key to the development of the Greek mind. In accordance with these mistaken and mischieveous views, Mr. Grote is nowhere found referring to a Providential agency in human affairs — discarding altogether the " Theological " spirit. In his preface he modestly alludes to another valuable history of Greece, that by Dr. Connop Thirl- wall, Bishop of St. Davids. Mr. Grote emphatically and justly eulogizes "the learning, sagacity and can- dor which pervade the excellent work " of his prede- cessor ; adding, that, had it appeared earlier, Mr. Grote 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 subject, 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. These elaborate and expensive histories may not be conveniently within the student's reach, and in the ele- mentary " history of Greece," by Dr. William Smith, above mentioned, he may find sufficient for his present purpose. It is comprised in a single volume, and con- tains carefully written supplementary chapters on Gre- cian Literature and Art. It is illustrated by many excellent wood-cuts, and may be relied on as a succinct statement of the " main facts of Grecian history, and of the leading 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 io8 Introduction to Law Studies. frankly ackowledges, to Mr. Grote's researches, as to prepare the way should inclination and opportunity con- cur 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 excel- lently illustrated with maps and wood cuts, and contains important supplementary chapters on the Civilization, Religion, Literature and Arts of Ancient Greece. If, as suggested in a former chapter, a lawyer, waking up from a half century's sleep, and presenting himself in Westminster Hall, would rub his eyes, be- wildered and astounded by the existing condition of our laws ; so would it be with a classical scholar, it may be said, so far as relates to Roman history, after the appearance on the scene of Niebuhr, by whose bold and profound researches and speculations, its early history has, in the estimation of the great ma- jority of scholars, been revolutionized. 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 demanded on what grounds the great German pretends to destroy the credit of that colossal masterwork and to rear an ideal fabric in its stead. Availing himself of the labors of his predecessors, continues the author in question, endowed with equal critical accuracy and greater power of combination, he has endeavored to vivify the notices of truth which have survived ; and, by the most fortunate coincidence, new and rich sources of knowledge have been opened On the Study of History. 109 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 have derived their information from Polybius, 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 predecessors. 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 Magistratibiis, con- taining extracts from Gains ; this was discovered in the library of a Turkish villa on the banks of the Bos- phorus in 1784, but was not published until 181 2. Secondly, fragments of the lost nine books of Dionys- ius, found at Milan, in 18 16, comprising Roman history from U. C. 315 to U. C. 485. Thirdly, the remarkable discovery in the same year, by means of excavations in the Forum, of fragments of marble, recognized as the corresponding parts of other portions of the con- sular and triumphal Fasti, commonly known as the Capitoline Tables, and which had been discovered accidently during excavations so long before as the years 1546 and 1563. The two lacuncs vA\\cS\. these new fragments fill up are from U. C. 294 to U. C. 365, a period of great importance, from the establishment of the Decemvirate; and that from U. C. 350 to U. C. 356, an interval of equal interest, when the number of consular tribunes was increased to six, and plebeians 10 no Introduction to Law Studies. admitted to the consular tribunate. These fragments have served to determine several points of discrepancy between Livy and Diodorus, and even to correct im- portant misstatements of Livy himself Fourthly, in the same year, Niebuhr himself discovered at Virona, a palimpsest manuscript, containing the greater part of the lost Institutes of Gains. Lastly, Angelo Mai dis- covered 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 legis- lation of the Decemvirs. These, says the accomplished 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 machinery, so to speak, by which the cel- ebrated German is believed by profound scholars to have accomplished such great results. As there is no modern nation whose history pre- sents so many points of resemblance to, and compari- son with, that of Rome as the English, so the history of Rome deserves the greatest attention of every Englishman, who has here an opportunity of seeing the history of his own country, as it were, foreshad- owed in a mirror. Based on the views of Niebuhr, the History of Rome by the late Dr. Arnold is a considerable performance, evincing mastery of the subject and a bold spirit. He • " Epitotne of Niebuhr " by Travers Twiss. ' On the Study of History. i i i contemplated concluding his undertaking with the revival of the Western Empire, A. D. 8op, by the cor- onation of Charlemagne at Rome, a point appearing to him its natural termination. He did not, however, live to proceed further than to the death of Julius Caesar. " He is the first extant writer," says Arch- deacon Hare, the editor of the third volume of the history, "and we may fairly believe is altogether the first who has given any thing like an adequate repre- sentation of the wonderful genius and noble character of Hannibal." " If Dr. Arnold had lived," says Mr. Merivale, " to complete his general history to the period lying before me, it is needless to say that my ambition would have been directed elsewhere." As it is, the last named gentleman has, during the last eight years, submitted to the public six volumes successively of his History of the Romans under the Empire, traversing an event- ful period of about a hundred and twenty years, com- mencing with the close of the Republic and terminating with the fall of Jerusalem, — leaving nearly two hundred and fifty years to be dealt with as the author's leisure may admit, and as he expects in two more volumes. At the point, however, which he has already reached, he tells us truly that his materials fail. " We lose the exuberance of detail we have so long enjoyed with Tacitus. Even Suetonius, who will not much longer attend us, becomes more sparing of his tales and guesses, as he approaches nearer to the rapid realities of his own times. Dion Cassius has already dwindled to the meagre Epitome of Xiphilinus. The compen- 112 Introduction to Law Studies. dious sketches of Herodian and the Augustan History will supply us with little more than a bare outhne of events relieved and interpreted by no vivid imperson- ation of individual character. The period of Roman history between Caesar and Vespacian has presented us with an ample gallery of whole-length portraits. Of the warriors and statesmen, the princes, poets, and philosophers, whose true and living effigies glow before us, we can form a complete and just idea from the breadth, and yet the finish with which they are deline- ated. But beyond these limits no such portraiture exists. We can arrive at no full and consistent con- ception even' of Marius and Sulla on the one side, or of Trajan and Hadrian on the other. These are but magni nominis umbm ; their vivi vultus have irre- coverably perished Though the political annals of Rome creep, from this period, like a shrunken torrent, from pool to pool along their thirsty channel, the interest of the general history will continue, and even increase when we examine the social organization of the Empire, — that is, of the ancient world, in its maturity and rapid decline. The manners and morals ; the ideas and sentiments of mankind, at the highest stage of heathen development ; their laws and institu- tions; their spiritual aspirations; the fall of Paganism and the rise of Christianity, are the subjects on which we are next to enter;" but he leads his reader to expect a long interval to elapse before his reappear- ance to close his important labor. The fall of the Western Empire forms a sort of nat- ural dividing line between ancient and modern his- On the Study of History. nj tory ; the essential character of the latter being, in the happy language of Dr. Arnold, that it treats of na- tional life still in existence, — the first acts of a great drama, — now actually in the process of being repre- sented, and of which the catastrophe is still future. How overwhelming the contrast, when the student turns from ancient to modern history ! Instead of two coun- tries claiming his attention, he finds several systems of countries, any one of them offering a wide field of inquiry. First of all, there is the history of Europe ; then, quite distinct, Oriental history ; thirdly, that of the European Colonies. When, however, we turn from the subjects of inquiry to the sources of information, the difference is greater still. In modern history our 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 inquiry ; lest we should be wandering about vaguely like an ignorant man in an ill-arranged museum, see- ing and wondering at much, but learning nothing. To know all history, actually, is impossible ; our object should be to possess the power of knowing any portion of history which we wish to learn at a less cost of labor, 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 consequences. We have gained also a measure of their value, teaching us what are produc- tive and what are barren ; what will combine with other 10* 114 Introduction to Law Studies. facts and establish and illustrate a truth ; and what in our present state of knowledge are isolated, — 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 accom- plished and eminent teacher, — Dr. Arnold, — namely, his Introductory Lectures on Modefn History. They abound in fruitful and practical suggestions, which can- not be entered into here, and all of them it is not to be expected that every independent inquirer will adopt, however 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 read- ing as his text, and getting from it the skeleton, in a manner, of the future figure, he must now break forth, excursively to the right and the left, collecting rich- ness and fullness 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 Mod- ern History in the University of Cambridge. These lectures have contributed to shape the character and influence the opinion of men variously distinguished in every department of the State for a long series of years. These lectures are eloquent and abound in valuable suggestions, generally characterized by can- dor and moderation ; and are so delightful to read that On the Study of History. 115 it is not difficult to account for the reputation and influence which they secure 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 mod- ern history, 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 Chris- tianity; but that spot may be regarded as lost in the splendor 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 eventful history, — from the times of the Antonies to the capture by the Turks of Constantinople in the year 1453. It must suffice here to call attention to the recent edition of "The DecHne 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 constantly cited as an authority in the most enlightened countries of Europe — in France and Germany as well as in England. Such a work, nevertheless, in even this its best form, may be con- templated, 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 ren- * These valuable lectures have been republished in the United States under the editorial care of Dr. Jared Sparks. T. li6 Introduction to Law Studies. der assistance to a student thus oppressed ; and presents him with a handsome volume of 66y close and neatly printed pages entitled, " The Student's Gibbon ; the History of the Decline and Fall of the Roman Empire abridged ; incorporating the Researches of recent com- mentators." 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 abridg- ment 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 beau- tiful wood engravings. As the subversion of the West- ern 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 alli- ance or hostility which may be deduced to the present day, and is the point at which every man who traces backwards its political history will 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 so uni- versally known and so thoroughly established, that no- thing more need here be said of it than that it has been recently republished in three small and well-printed On the Study of History. 117 volumes at a reasonable price. This is a work indis- pensable to the historical student. With Charles the Fifth commenced a new era in political history ; when all the European States were, if one may so speak, con- glomerated ; 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. The history of this reign is unquestionably Dr. Robertson's chef d' ceuvre. The student will read over very frequently the concluding chapter, which is a luminous summary of the leading events narrated in preceding pages of the work ; and thus will he be broyght by a skillful guide to the middle of the sixteenth century (1558.) But for the assistance of Professor Smyth, it would have been difficult to afford the student any adequate assist- ance through the complicated mazes of European his- tory during the three centuries which have elapsed between A. D. 1558 and A. D. 1858. Down to the year of American Independence A. D. 1783, the stu- dent will follow the leading of the accomplished Pro- fessor. With the year 1 789, the inauguration of the French Revolution, commences Sir Archibald Alison's " His- tory of Europe " from that period to the Restoration of the Bourbons in 181 5, undoubtedly one of the most important additions to historical literature seen for many years. In style, perhaps, somewhat too difTuse, it never- theless constitutes a vast storehouse of authentic facts during the dazzling and terrible quarter of a century to which it relates. To exemplary candor, consideration, and anxiety to secure accuracy, the writer adds sustained ii8 Introduction t6 Law Studies. and vivid descriptive power of a high order. By the time, however, the student shall have advanced thus far, he may reasonably be supposed capable of select- ing his own course of historical reading as opportunity and inclination may prompt. He is recommended, however, not to lose sight, of Lord Woodhouselee's " Universal History," but to expand his studies with method and moderation ; preserving, by repeated refer- ence and perusal, a due connection between the parts and the whole of universal history. Surely, there is nothing formidable in the course here suggested. The student, however, will do no- thing without that fixedness of purpose before spoken of, which will enable hirn to go steadily through with it. If he is perpetually changing, dipping first into this, then into that, and the other books ; sometimes long intermitting his historical readings, or hurrying over the pages as if against time, merely to make be- lieve to others, or to himself, that he is going on, he will but have wasted his precious time ; he will have made no substantial acquisitions of a knowledge which is pre-eminently important to an aspiring lawyer, but got a confused smattering of history, which will but lead him into endless error and mortification. It will be observed that little or no mention has yet been made of English history, except so far as it forms a part of the general course of historical studies ; it is a subject of such capital importance as to warrant a sep- arate chapter.* * The best method of studying history is that recommended by Mr. Pycroft in his " Course of English Reading." His plan is to first ob- On the Study of History. i i g tain a comprehensive and general knowledge of the subject by reading, carefully and thoroughly, a brief outline history, and then to fill up the outline by reading from the more voluminous and detailed treatises such parts as shall have excited the interest and curiosity. For instance, the student of Grecian history should first read an outline history, as Sevf ell's "First History of Greece;" and when this is known thor- oughly, should proceed to fill in by reading in Grote's or Thirlwall's his- tory, the subjects concerning which he may have a desire to obtain a more minute and thorough knowledge. The outline will serve as a meTnoria technica to connect and facilitate the recollection of more minute detail, and will answer as a general map of the course to be pursued. The difficulty in history is to remember, not principles and general impressions, but who said this, and who did that, and when and where particular actions occurred ; and it must be a well-disciplined mind, indeed, that can, by a perusal of Gibbon or Hume, grasp the outline of events so comprehensively as to enjoy the advantage of com- paring one period with another, and to have a clear and connected view of the entire subject. Perhaps the chief advantage of the plan proposed by Mr. Pycroft is, that, after the outline has been gained, one is left to fill it up according to his taste and inclination. Dr. Johnson said that for general improve- ment a man should read whatever his inclination prompted. " What we read with inclination makes a much stronger impression. If we read without inclination, half the mind is employed in fixing the attention, so there is but one-half to be employed on what we read." In this plan of studying history, it is not contemplated to read the more voluminous and extensive histories — such as Grote's and Niebuhr's and Hume's — " by course," or "from end to end;" and it is not to be regretted. In nine cases out of ten, where people attempt to read such works by course, they forget the first part of a volume before they have read the last. It is well known that Dr. Johnson said he never read any book through but the Bible, and Adam Smith said "Johnson knew more books than any man alive. " The student should begin his course by reading some outline history ' of the world, and should keep this by him during his subsequent read- ing, that he may be able to trace contemporaneous history. Tytler's (Lord Woodhouselee) " Universal History," recommended by the author in the foregoing pages, is not only inaccessible to American stu- dents, but has been mainly superseded by later works. The best universal history, so far as completed, is Philip Smith's " History of the World from the Earliest Record to the Present Time." 120 Introduction to Law Studies. Three volumes have been issued, comprising the history of the nations of antiquity, and the remaining volumes will be published at an early day. This history has the advantage of using the results of the latest researches and explorations, and is written in a style both pleasing and elegant. Taylor's "Manual of Ancient and Modern History" — of which a new edition has been recently issued — is a most excellent outline, and will form a valuable historical vade mecum. It is divided into two parts — ancient history and modern history — either of which can be obtained separately. In reading the history of Greece, Keightley's or Schmitz's outline should be used, to be followed by such parts of Grote or Thirlwall as inclination may dictate. Grote is to be preferred to Thirlwall. The latter's work, though a masterly performance, is abstract and difficult of comprehension. The day for reading Mitford has gone by. Authon's History of Greek Literature should be read. Of Roman history, Sewell's "First Book," or Keightley's or Schmitz's "Roman History" is the best outline, to be followed by Arnolds' Merivale, Niebuhr, and Gibbon, whose works are noticed in the foregoing chapter. For the history of modern Europe, the student must consult the general outline histories before commended, and Ali- son's " History of Europe." For suggestions on a course of English history, see the note at the end of the following chapter. T. On the Study of English History. 121 CHAPTER VIII. On the Study of English History All lawyers readily admit the pre-eminent import- ance of an accurate and extensive acquaintance with English history ; and a great number, very confidently, but very unwarrantably, give themselves credit for it. Few have not, perhaps, at one time or another, read the whole, or considerable portions of Hume — but how ? with what object ? Was it hastily galloped over as a mere school-boy's course of holiday reading — as a mere task — as a painful preliminary stage of legal study ? Was it read only that it might be said to have been read ? Was it the constant object, in the language of Montesquieu, " to illustrate law by history and his- tory by law ?" Was there any persevering effort made to retain what was read, to reflect upon it, and apply it to practical purposes ? Has it, in short, been read in the spirit of Lord Bolingbroke's beautiful observa- tion, that history is philosophy teaching by examples ? Let him who is inclined to answer these questions, petulantly or boldly, submit himself to one-quarter of an hour's friendly examination by any competent per- son, who will require him to give an extempore account of one or two only of the most prominent events in our history — to state their relative connections and dependencies — their causes and effects. 11 122 Introduction to Law Studies. How can that lawyer arrogate to himself the char- acter of a worthy member of a liberal profession, who is ignorant of the history of his country ? What rea- sonable chance has such an one of distinguishing him- self in public life — of aspiring to political eminence? He is chained down to his daily drudgery like the gal- ley slave to his oar ; he cares about nothing but to get through his day's work ; is destitute of everything but a pitiful pettifogging familiarity with forms of practice, and can never get beyond that wretched apology of legal hacks and dunces — ita lex scripta ! Take him out of the beat of his books of precedents and prac- tice, and a child may pose him. Expect not from him any explanation or vindication of the reason of the law, its general principles and policy. He comes day after day out of his chambers or the court, like the black- smith begrimmed from his smithy after a hard day's work, content at having got through what he has en- gaged upon, neither knowing, however, nor caring to inquire into the noble uses of the article he has been forging. Thus the mere mechanical draftsman, your hum-drum pleader or conveyancer, may have got through the task assigned him — may have drawn the instrument, and advised on the cases submitted to him, with due dexterity ; and that is the extent of his care or ambition. He is conversant, possibly, with the prac- tical working of the provisions of feudalism — of the Statute of Entails, and against subinfeudations — of the delicate and complicated machinery of Uses and Trusts, of Fines and Recoveries — but knows little or nothing of the interesting period of, and the circum- On the Study of English History. 123 stances attending their introduction — ^^what led to their adoption — what reasons of state policy were concerned — whether they answer the desired end, and are fitted to the political exigencies of the present times. Truly, he " ignorantly worships " .the law ! Surely, the intelligent practitioner must contemplate the structure and working of the law with deeper inter- est, who has accustomed himself to the comparison of past with actual and possible exigencies and emergen- cies ; observing the altered circumstances in which so- ciety is placed with reference to particular laws, the vastly different purposes to which the lapse of time has appropriated them, from those to which they were originally dedicated. He is using, for most ordinary and peaceful purposes, the machinery which was origin- ally intended to aim a mortal blow at the aristocracy, at the clergy, at the liberties of the people, or at the prerogatives of the crown — calling forth at one time the tempestuous spirit of lay rebellion, at another the profound subtlety of ecclesiastical machination ; and which, having answered its great purposes, having, in process of time, effected a silent revolution, at length discharges the sole, the comparatively humble but use- ful functions, of securing and transmitting property from individual to individual. The little instrument by which the modern conveyancer secures twenty pounds a year to Mary Higgins and her children, is, in truth, the lever by which a king might have been pried from his throne ; which was applied with con- summate craft to the destruction of the banded power 124 Introduction to Law Studies. of the aristocracy — of the huge and gloomy fabric of ecclesiastical denomination. Thus the water which might at first have been seen forming part of the mag- nificent confluence of Niagara, and then precipitated, amjd clouds of mist and foam, down its tremendous falls, after passing over great tracts of country, through innumerable channels and rivulets, serves, at length, quietly to turn the peasant's mill. Apart, however, from this more interesting view of the subject, there is one much more practically import- ant to be taken by the student ; that without this con- temporaneous pursuit of historical and legal knowledge, very considerable and important portions of the latter cannot be appreciated and understood, and no preten- sions exist to the character of a constitutional lawyer. Can it be requisite to specify and insist upon the ad- vantages — the necessity of a sound and familiar know- ledge of those portions of history which are peculiarly ■connected with the administration of the law ? Do they not "come home to the business and bosom" of all? How many important decisions and statutes are there that would be more easily understood, more thor- ■oughly appreciated, more permanently retained, more readily applied to practical purposes, when illustrated iby an accurate knowledge of the circumstances under which they were made or enacted ! Is not the assist - :ance obvious that is derived from the mere principle of association ? " Law, then, only becomes a rational istudy," says Lord Kames, "when it is traced histori- ically from its first rudiments through its successive tchanges. With respect to the political institutions of On the Study of English History. 125 Great Britain, how imperfect must the knowledge be of that man who confines his reading to the present times ! If he follows the same method in studying its laws, have we reason to hope that his knowledge of them will be more perfect ? A statute, or any regula- tion, if we confine ourselves to the words, is seldom so perspicuous as to prevent errors — perhaps gross ones. In order to form a just notion of any statute, and to discern its spirit and intendment, we ought to be well informed how the law stood at the time, what defect was meant to be supplied, or what improvement made. These particulars require historical knowledge ; and, therefore, with respect to statute law, at least, such knowledge appears indispensable." " Institutions," observes an able writer on law studies, " which originated in the necessities of our ancestors, must be necessarily traced back to the same ancient source for their construction. The only sure guide that can be had in the investigation of the theory of their principles, is the knowledge of the circumstances to which they were accommodated ; of the occasional or local demand for them ; of the original mischief to be provided against, or the particular inconvenience that was intended to be prevented by them. * * * It demands the exercise of our riper judgment to appre- hend through what vicissitudes the prosperity of a State is made to depend upon the wisdom of its Legis- lature ; to examine the boundary of those restrictions upon natural liberty which are necessary to be imposed for the common good ; to appreciate the causes of the improved condition of the people, in the progressive 11* 126 Introduction to Law Studies. improvement of their municipal institutions and civil usages, and to trace the reverses that lead to anarchy and the dissolution of empire — to the dereliction of those fundamental maxims of common equity and com,- mon right which give to society the basis of its politi- cal constitution, and disposes it to lasting harmony. This inseparable affinity between the sources of histori- cal and legal learning, may be said to constitute one of the brightest images in the theory of professional education ; for, as on the one hand, our history throws light upon our laws, so in proportion to the erudition we acquire as lawyers, we equally ensure our profi- ciency as historians. They are sister sciences, which go hand in hand together, and mutually elucidate and assist each other. ' II faut eclaircir I'histore par les lois,' says Montesquieu — 'et les lois par I'histoire.' It is not meant to be asserted that the generality of students are not, at one time or another, acquainted — and perhaps well acquainted — with this connection between historical and legal knowledge ; but that, it is to be feared, they do not make sufficient efforts to keep it up, with a view to its practical application. The impressions produced by their more youthful readings are faint, indeed, and quickly effaced by other pursuits, especially by the absorbing cares of business. Per- petual procrastinations serve to render the matter at length hopeless. History gets to be looked at, alas ! not as an experienced guide and interpreter of things otherwise unintelligible, but as, at most, a pleasant occasional visitor ; it is resorted to, not £is a matter of serious business, but mere recreation — a supernumer- On the Study of English History. 127 dry accomplishment* Hence the perilous position in which such a person is liable to be placed, when he finds himself suddenly — and perhaps publicly — called upon, either in court or parliament, to explain the rea- sons of the law, to vindicate his own statements when impugned, or assail and expose those of his adversa- ries. He has then no landmarks to guide him, no rallying points of historical recollection, in short, and no precise and distinct ideas on the subject, and must either retreat in ridiculous confusion from his own has- tily assumed positions, or submit to misrepresentations, which, however he may suspect, he cannot prove to be such. The common maxim cessante ratione cessat quo- que lex, must, to such an one as we have been describ- ing, be ever an alarming and hateful one ! "In an appeal to sober sense and to experience," observes a judicious writer, " the advantages that arise, in this respect, to the advocate, from the study of his- tory, will presently be found of great value ; they form a forcible contrast with the disadvantages that fre- quently result from an ignorance of that science. How often would it have proved a tedious and almost insup- portable task to those whose office it is to hear and determine upon the arguments of counsel, had they who have filled the character of an advocate at the English bar been generally unversed in the events * "History," says Roger North, "particularly that of England, is to be accounted, however pleasant to read, an appendix or incident neces- sary to the study of the law ; for it often lays open the reasons and occasions that have been for changes that have befallen the Common Law, either by authority of parliament, or of the judges in Westminster Hall."— Disc. Stu. Law, p. 8. 128 Introduction to Law Studies. recorded in history; how confined would have been the legal notions of our courts ; how spiritless, and per- haps unjust, their interpretations of the law, had they who preside in those tribunals derived their principles of truth in the administration of civil and criminal jus- tice from the letter of the law alone. On the other hand, what grand and striking displays of the reason- ing powers — what extensiveness of remark — acumen of comparison and power of combination — mark the argument of the advocate whose mind has been illum- ined by a contemplation of the hidden causes from which, as we have already remarked, laws in particu- lar, amongst all other human subjects, derive their true character and complete force." Let the student but cast his eye over the pages of any of our professional biographies, the reports of any of our great trials, and he cannot fail to note the fre- quent occasions on which our advocates have splen- didly distinguished themselves by the accuracy, extent, and promptitude of theii knowledge of constitutional history. To go no further back than to Lord Mansfield, Ashburton, Erskine, Eldon, Lyndhurst, Brougham, and Sir Charles Wetherell — who can have read their judgments and speeches, either in court or parliament, without high admiration on the score above mentioned ! How, indeed, is it possible for him to speak with the requisite air of confidence — to convince the obstinate, decide the doubting, enlighten the ignorant, and con- found the crafty, who is not fully master of his mate- rials — " strong in his points !" A sudden turn of the discussion, an unexpected question, a subtle suggestion. On the Study of English History. 129 a daring assertion, will suffice to dislodge the pretender from his pedestal, and expose his shallow incompetence to derision ! Innumerable occasions will arise, during the course both of the pupilage and practice of the ambitious lawyer, for regret on account of his igno- rance, or satisfaction on account of his sound know- ledge of English history. The incessant allusions to its topics, in friendly conversation and discussion, either at chambers, in general society, in court, or even at the debating clubs, to which most young men attach them- selves, will soon convince the student of the dangers of superficiality. Not an elementary writer on legal studies, ancient or modern, has failed to insist most strenuously on the necessity of the young lawyer's early acquaintance with the history of his country. The author would be, however, almost ashamed to have said so much on the subject, but that he is aware how compatible is the fullest acknowledgment of its importance, on the part of students, with a practical neglect of it. Let the student who meditates entering, or has already entered the legal profession, address himself at once to Hume's History of England, devoting to it — say, two or three hours in the day, twice a week. He must begin with the very beginning. Many pass over the period anterior to the conquest, as being of no practical importance; whereas the brief and masterly sketches contained in the second and third chapters, together with the appendix, would not only conduce to a clear understanding of the position of affairs in 1066, but afford a clue to very many important cus- I30 Introduction to Law Studies. toms and laws subsequently abrogated, modified, or restored. The student then will read easily, but atten- tively, through the whole of this inimitable history ; not troubling himself with the references, or wander- ing into collateral researches ; but taking care, at each reading, to review the previous one, so as to keep up in his memory a due order and connection between events. He will not be long in thus getting through Hume. Having once done so, and taken thus a bird's- eye view of the whole, he may with advantage prepare himself for a second and more systematic perusal, by directing his best attention to the feudal system — that wonderful hot-bed from which have sprung so many institutions that retain, even to this day, their peculiar uses and characteristics. The student will find this knowledge not only essential to a thorough apprecia- tion of the numerous and very subtle rules of real pro- perty law, but also affording a key to general European history. "The feudal system," says Lord Mansfield, " is so interwoven with almost every constitution in Europe, that, without some knowledge of it, it is im- possible to understand modern history." Without this, in short, it will be in vain to hope for an accurate know- ledge of either law or history. A very beautiful sketch of the Feudal System will be found in the second ap- pendix to Hume. Perhaps, however, the most scien- tific view of it is that contained in Mr. Hallam's Mid- dle Ages (chapter ii, parts i and 2). Dalrymple on Feuds is a very brief and luminous work ; and see Mr. Butler's elaborate note to Coke upon Littleton, 191, a; the introductory chapters of the fourth book of On the Study of English History. 131 Blackstone's Commentaries; and the third to the eighth, inclusive, of SulHvan's Lectures. Any one of these will suffice to give the student a clear insight into the leading characteristics of that wonderous system — " that prodigious fabric," to adopt the lan- guage of Hume, "which for several centuries pre- served such a mixture of liberty and oppression, order and anarchy, stability and revolution, as was never experienced in any other age or any other part of the world !" Thus prepared, our student will re-commence Hume, devoting his first attentions to the reign of William the Conqueror, who introduced, it is believed, the feudal system into England. The mailed hand with which that great warrior grasped and shook our institutions, has, so to speak, left its impress upon them to the pres- ent day. It is, however, interesting to observe the decay of feudalism, waning as it did before the waxing influence of what has been termed the spirit of com- mercialism, which totally altered the general character and policy of our institutions, moulding our laws and usages into new forms more adapted to modern exi- gencies. To proceed, however. The reigns of Alfred, William the Conqueror, Edward I (the English Justi- nian), Edward HI, Henry VI, Henry VII, Henry VIII, James I, Charles I, Charles II, James II, and William III (in Smollett's continuation), are those most worthy of being dwelt upon by the student, and thor- oughly mastered in all their particulars ; they are, so to speak, the climacterics in the history of our consti- tution. Having thus completed his second perusal of 132 Introduction to Law Studies. Hume, the student will do well to read carefully the last chapter of Blackstone's Commentaries — a lumin- ous and comprehensive summary of the great epochs in constitutional history ; Dr. Gilbert Stuart's admira- ble " Discourse on the laws and Government of Eng- land," prefixed to his edition of Sullivan's Lectures ; and the chapter " on the British Constitution," in Paley's Moral Philosophy. These three brief epitomes will suffice to keep in his mind the leading events of our legal history, in their due order, prominence, and proportion ; to indicate distinctly the various stages of growth and change in the constitution, the struggles between, — the alternate elevation and depression, and ultimately harmonious adjustment and equipoise, — of monarchical, aristocratical, ecclessiastical, and demo- cratical power. The student will then be fitted to enter upon Mr. Hallam's Constitutional History, — a work it were idle to attempt to eulogize, or even char- acterize, otherwise than by stating that it has become, and well deserves to be, a standard text-book. The Constitutional History of England commences, in fact, in his "Middle Ages" (chap, viii, parts i, 2, 3), which are devoted respectively to the Anglo-Saxon consti- tution, the Anglo-Norman constitution, and the period from Edward I to the end of Henry VI. The " Con- stitutional History of England," subsequently published in three volumes, 8vo, continues the history, commenc- ing with the reign of Henry VH and terminating with that of George H. This work is admirably calculated to complete the student's course of English historical reading, — to gather up its results, — to place all the On the Study of English History. 133 really important events of our history in their true bearings, their lights and shadows, distinctly before him. Happy will be that student who shall do this distinguished writer the justice of thoroughly studying his works — of reading them over and over again. On each successive perusal he will be the better pleased with the pains he has taken. Long, indeed, may it be before we " Look upon his like again "— — upon SO rare a combination of candor, sagacity, and learning, as is to be found in Mr. Hallam. Reeve's History of the English Law, though by no means an inviting, is, nevertheless, a very important and valua- ble work ; one which, if not read consecutively through, yet should be frequently referred to by him who wishes to obtain an intimate knowledge of the frame- work of our ancient laws. Since, however, the wholesale alter- ations which have been recently effected in every de- partment of the law, many portions of that work may be passed over as obsolete — at least as far as practical purposes are concerned. Mr. Hallam speaks of it very highly, as "a work, especially in the latter volumes, of great research and judgment; a continuation of which, in the same spirit, would be a valuable acces- sion not only to the lawyer's, but philosopher's library." This, then, is what the author ventures to propose as a plain and practical course of English history ; one perfectly compatible with the pressing calls upon the young law-student's attention, and calculated, if but done moderate justice to, to give him very great ad- 12 134 Introduction to Law Studies. vantages over many of his competitors. Some of them, may, perhaps, smile at the simplicity of the scheme here proposed, and talk largely of greater works than are above-mentioned — of folios " Of grim black-lettered lore." Our student, however, will show his good sense by disregarding such vaporings. Let no swaggering airs of superiority assumed by his companions divert him from his determination thoroughly to master Hume and Hallam ; when this is done, then — and not till then — it will be time enough to think of deepening and extending his researches into the history of his country. He is assured that many talk, and even write, flippantly and confidently about these subjects, who are, in reality, most shallow pretenders. Thus the student will not only have stored his mind, easily and early, with very valuable historical knowl- edge, but facilitated the acquisition and retention of law ; at the same time that it has generated, where it did not already exist, a keen relish for historical inves- tigation. He will be enabled to form such a ready and enlightened opinion upon the character, effects and tendency of the innumerable political measures that may be discussed in his presence, as will speedily at- tract the attention of those whose interest it will be to promote him. Historical studies will have operated as a pleasant and powerful stimulus to the exertion of memory, observation and reflection. To such an one our statute book can never become " a dead letter ; " the parliamentary debates must be an unfailing source of interest and instruction. On the Study of English History. 135 " I might instance," says Lord Bolingbroke, " in other professions, the obligations men He under of applying themselves to certain parts of history ; and I can hardly forbear doing it in that of the law ; in its nature the noblest and most beneficial to mankind, — in its abuse and debcisement the most sordid and per- nicious. A lawyer, now, is nothing more — I speak of ninety-nine in a hundred at least, — to use TuUy's words, " Nisi leguleius quidem cautus, et acutus prmco actionum, cautor formularum, auceps syllabarutn." — [De Orat 55. — Pro Murcena, sec. 11. J But there have been lawyers who were orators, philosophers, historians; there have been Bacons and Clarendons. There will be none such any more, till in some better age true ambition or the love of fame prevails over avarice, and till men find leisure and encouragement to prepare themselves for the exercise of their profes- sion by climbing up to the 'vantage ground, as my Lord Bacon calls it, of science, instead of groveling 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 professions ; and whenever it hap- pens, one of the 'vantage grounds to which men must climb is metaphysical, and the other historical, knowl- edge ; 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 the more perfect draughts; 136 Introduction to Law Studies. from the first causes or occasions that produced them, through all the effects, good and bad, that they pro- duced.* * The same course should be pursued in reading English history as that recommended in the note at the end of the last chapter. Mark- ham's " History of England," or Keightley's "Elementary History of England," should be thoroughly read, and then Hume, Macaulay and Froude may be consulted on such subjects as have excited your interest, after a knowledge of the general history has been obtained. The stu- dent should make himself thoroughly familiar with Hallam's Constitu- tional History. The value of this work — and in fact of all English history — is as great to the American student as to the Englishman. The great body of our law is derived from England, and has a common history with English law. The American student, after familiarizing himself with English his- tory (I say after, because our history is, in many respects, an out-growth and sequence of English history), should turn to the history of his own country, and study it carefully and systematically. There is no really good outline history, but that of Hale, Goodrich or Wilson will answer the purpose. After the outline, Bancroft, Hildreth, Graham, Palfrey, etc., will afford the material for filling in. Bancroft's is the best general history, and is particularly full and accurate on Colonial history. Though the style is at times affected and ambitious, yet it is a work that is in- dispensable to the American student. "The Federalist" should be carefully studied, — not reai/ but studied. "The Madison Papers," and Dwight's "History of the Hartford Convention" should be read. G. T. Curtis' " History of the Origin, etc., of the United States Constitu- tion," Benton's " Thirty Years' View," and Van Buren's " History of Political Parties," should be read by every student of the law. T. Political Economy. 137 CHAPTER IX. Political Economy. Having thus laid his foundations deep and sure in general history, the student's next object will prob- ably be to acquaint himself with the leading principles of Political Economy ; a science of very modern growth, and the elements of which are yet by no means well settled. The student, however, will at once go to the fountain head, Adam Smith's "Wealth of Nations," a wonderful work, the very Principia of political science. Unless, however, he determine upon studying, that is, reading in earnest — this Treatise, the student had better leave it alone altogether. Let him not attend to the sciolists, whom he may hear talking of Adam Smith's book as obsolete — radically defective ; or plague himself by entering at once upon the clashing systems of the present day. The study of Adam Smith he will find a right profitable one; and without it, will never know what the "political economy" is, that he hears so much of — he will be confounded by the "din of all that smithery" carrying on by Ricardo, Malthus, M'Culloch, Mill, Storch, Say, Torrens, and fifty others.* Mr. M'CuUoch's Commercial Dictionary will be found a vast store-house of authentic information on *John Stuart Mill's treatise on Political Economy is probably the ablest modern work on the subject. T. 12* 138 Introduction to Law Studies. all points connected even in the remotest degree with arts, trade, commerce and manufactures. To the polit- ical economist, such a work is, of course, indispensable ; to the mere lawyer, even, it is very valuable. Knowl- edge of this kind must be early acquired by him who wishes to prepare himself for extensive practice. Sup- pose a brief put into the hands of a young lawyer, involving mechanical, scientific or commercial topics : how painful his position, if unequal to the task, how splendid his chance of distinction if equal to it. Not long ago a fire insurance cause was tried, involving the right to a very large sum of money, which ulti- mately turned on the true nature of fixed and volatile oils ; all the chemists of any note were examined, cross-examined, and re-examined with exquisite skill by the counsel for both parties, the present Lord Chan- cellor Lyndhurst and Lord Chief Baron Abinger. The short-hand writer's printed report of this case (Severn v. King) is now lying before the author; and the extensive scientific knowledge displayed by these distinguished persons, as well as by the other counsel, is really astonishing. But is this mentioned as a case per se ? By no means ; go to Nisi Prius on any day you will, and judge for yourself You will there see how useless, how eminently dangerous it is, to think of relying upon any sudden " cram " for such occasions as these, which is calculated only to confuse and be- wilder you, if unluckily drawn but a hair's-breadth from what you had prepared before-hand.* A very " Mr. Chitty, in his last work, gives two or three instances of igno- rance in these matters, which are scarcely credible. Political Economy. 139 distressing instance of this kind occurred not long ago ; the consequences were signally unfortunate. The student will do well to purchase two or three of the treatises published in Dr. Lardner's Cyclopsedia on the practical subjects which often furnish occasion for legal investigation ; such as Silk Manufacture, Manu- factures in Metal, Porcelain and Glass Manufacture; and the forthcoming ones on the Cotton Manufacture, by Dr. Ure, and the Preliminary Discourse on the Arts and Manufactures, by the Baron C. Dupin ; which are likely, from the reputations of their writers, to be highly interesting and useful. Mr. Babbage's " Econ- omy of Machinery and Manufactures " will be found a delightful and most instructive little work ; compris- ing in a small compass a vast deal of important and authentic information not to be found elsewhere. The style, too, is eminendy chaste and philosophical. Works of this kind the student may advantageously have by him, for the purpose of reading or reference, as inclination and opportunity may allow. It would seem a hopeless task to enter upon works on physical science generally; but one may be named, " The Elements of Physics," by Dr. Arnott, as one of the most extraordinary and valuable books of the age ; one calculated to entice the student into the very re- " It is well known," he says, " that a judge was so entirely ignorant of insurance causes, that, after having been occupied six hours in trying an action upon a policy of insurance upon goods (^Russia duck) from Russia, he, in his address to the jury, complained that no evidence had been given to show how Russia ducks (mistaking the cloth of that name for the bird) could be damaged by sea- water, and to what extent! ! ! " — ^^Chitt. Gen. Pr. of the Law, vol. ii. p. 321, note c. I40 Introduction to Law Studies. cesses of natural philosophy, and well worthy of a very frequent perusal. It will supply the place of all other works on physical science, at least to the lawyer ; it does not presuppose any acquaintance with the mathematics in its readers ; nor does it deal in what may be called the jargon of scientific phraseology. He that runs may read. Such felicity of illustration — such graceful simplicity of style and method, perhaps never were before united with profound and accurate scientific knowledge. An acquaintance with the gen- eral principles of physics — of mechanical science, such as this work will so easily and elegantly supply, will be of incalculable service to the young counsel ; as an ignorance of them is likely to be attended with the most mortifying consequences. Dr. Arnott, in the work just mentioned gives an amusing anecdote, which is worth quoting. " A young and not yet skill- ful Jehu, having run his phaeton against a heavy, car- riage on the road, foolishly and dishonestly excused his awkwardness, in a way which led to his father's prosecuting the old coachman for furious driving. The youth and his servant both deposed, that the shock of the carriage was so great as to throw them over their horses' heads ; and thus they lost the cause, by un- wittingly proving that the faulty velocity was their own ! " A still more ridiculous instance occurred not long ago, on the part of an eminent counsel. The author cannot conclude this section without conjuring his young reader to study the immortal works of Edmund Burke. Panegyric has exhausted itself upon them. Enchanting — dazzling in their Political Economy. 141 eloquence, profound in their political sagacity, sublime in their philosophy — "we ne'er may look upon their like again." If the present writer were, in the prospect of ban- ishment to a desert country, put to his election of some one English author's works, as his companions in exile, he has often thought that he should choose those of Burke. " Among the characteristics of Lord Erskine's eloquence," observes one of his recent biog- raphers, " the perpetual illustrations derived from the writings of Burke is very remarkable. In every one of the great state trials in which he was engaged, he referred to the productions of that extraordinary per- son as to a text-book of political wisdom — expound- ing, enforcing and justifying all the great and noble principles of freedom and of justice." " When I look," says Lord Erskine himself, "into my own mind, and find its best lights and principles fed from that immense magazine of moral and political wisdom, which he has left as an inheritance to mankind for their instruction, I feel myself repelled, by an awful and grateful sensi- bility, from petulantly approaching him." 1^2 Introduction to Law Studies. CHAPTER X. On the Study of Forensic Eloquence.* Finally, after the student has mastered the studies and means of preparation thus outlined, there is another essential, aside from the knowledge of the law, for the successful court lawyer — that is eloquence ; that sort of eloquence which Blair defines to be " the art of speaking in such a manner as to attain the end for which we speak." Most young men, who study with a view of coming to the bar, have an ambition, more or less strong, to become advocates — to be able to convince judges and persuade juries by the power of their logic and the graces of their style and utter- ance ; but a visit to our courts is but too likely to show how lamentable the great majority of them fail of achieving their desire. Lack of perseverance in performing the labor neces- sary to the student of elocution, or ignorance of the method to be pursued, or, in many cases, a notion that orators, like poets, "are born, not made," has served to make the number of eloquent advocates very small indeed. The almost universal idea seems to prevail, that industry can effect nothing; that every one must be * The author having omitted this subject, so important to the Ameri- can student, the editor has taken the liberty to add the following chapter. T. On thk Study of Forensic Eloquence, 143 content to remain just what he happens to be, and that eminence is the result of accident. For the ac- quirement of any other art, men expect to serve long apprenticeships ; to study it carefully and laboriously ; to master it thoroughly. If one would learn to sing, he attends a master and is drilled in the elementary principles ; and it is only after the most careful dis- cipline that he dares to exercise his voice in public. If he would learn to play a musical instrument, how patiently and persistently does he study and practice, that he may draw out, at will, all its various combina- tions of harmonious sounds, and its full richness and delicacy of expression. " And yet," adds a learned writer, " a man will fancy that the grandest, the most complex, the most expressive of all instruments, which is fashioned by the union of intellect with power of speech, may be played upon without study or practice. He comes to it a mere tyro, and thinks to manage all its stops, and command the whole compass of its varied and comprehensive power ; he finds himself a mere bungler in the attempt, wonders at his failure, and settles it in his mind forever that the attempt is vain " — that it can be done only by genius. Nothing can be more mischievous and unfortunate to the student than for him to fall into such an error — to hold' the opinion that excellence in speaking is a gift of nature and not the result of patient and per- sistent labor and study. If all men had entertained and acted upon such an opinion, those who have won fame and honor by their eloquence would have re- mained mute and inglorious. Never would Demos- 144 Introduction to Law Studies. thenes have charmed an Athenian audience, nor Cicero have hurled his denunciations against Cataline. Lord Chatham would have remained simple William Pitt, and Erskine lived an ordinary English barrister. Curran would have been " Orator Mum " to the end of his days, and Choate died "unwept, unhonored, and unsung." Men who believe that eloquence is the result of genius, and not of labor, are like the dwellers in the East, as described by Sir Joshua Reynolds in his address to the pupils of the Royal Academy. He says : " The travelers into the East tell us, that when the ignorant inhabitants of those countries are asked concerning the ruins of stately edifices yet remaining among them, the melancholy monuments of their former grandeur and long-lost science, they always answer : ' They were built by magicians.' The untaught mind finds a vast gulf between its own powers and those works of complicated art, which it is utterly unable to fathom ; and it supposes that such a void can be passed only by supernatural powers." What Sir Joshua says of paint- ing is true of oratory. Those who know not the cause of any thing extraordinary and beyond them may well be astonished at the effect ; and what the uncivilized ascribe to magic others ascribe to genius, — two mighty pretenders who, for the most part, are safe from rivalry only because by the terror of their names they dis- courage in their own peculiar sphere that resolute and sanguine spirit of enterprise which is essential to suc- cess. But as has been well said, " all magic is science in disguise," and it is our object to proceed to take off On the Study of Forensic Eloquence. 145 the mask — to show that the mightiest objects of our wonder, so far as eloquence is concerned, are mere men hke ourselves, have attained their superiority by steps which we can follow, and that we can walk in the same path even though there remain at last a broad space between us. Lord Chesterfield was not very far wrong when, in his letters to his son, he told him that any man of rea- sonable abilities might make himself an orator ; not an orator like Cicero's magnificent myth, who should have ■" the acuteness of the logician, the wisdom of the philosophers, the language almost of poetry, the memory of lawyers, the voice of tragedians, the ges- ture of the best actors;"* such orators, we admit, must be nascitur, non fit — born, not made — and they are rarely to be found ; but orators like Pitt and Fox, like Mansfield and Erskine, like Pinkney and Choate — orators who can " sway listening senates," who are stormy masters of the jury-box. Chesterfield was perhaps an illustration of his own theory, for he said that he at one time determined to make himself the best speaker in Parliament, and set about a severe course of training for it ; and we have the opinion of so able a judge as Horace Walpole that he was the first speaker of the House. Every school- boy can tell you of the gigantic labors of Demos- thenes in training himself for a public speaker. It will be refreshing for any student who desires to im- prove himself in speaking to turn to Plutarch's life of " Cicero's De Oratore, Book I, ch. 28. 13 146 Introduction to Law Studies. Demosthenes, and read of his early struggles with obstacles which would have discouraged at the thresh- old the great majority of mankind. Laughed at and interrupted by the clamor of the people in his first efforts, by reason of his violent and awkward manner, and a weakness and stammering in his voice, he retired to his house with covered head and in great distress, yet not disheartened. At one time he complained to Satyrus, the player, "that though he was the most laborious of all the orators, and had almost sacrificed his health to that application, yet he could gain no favor with the people." Satyrus seems to have been a judicious adviser, and proceeded to correct his faults, as Hume says he who teaches eloquence must — by example. He requested Demosthenes to read some speech from Euripides or Sophocles. When he had done, Satyrus pronounced the same speech with so much propriety of action that it appeared to the orator quite a different passage. "He now understood so well," says Plutarch, " how much grace and dignity of action adds to the best oration, that he thought it a small matter to premeditate and compose, though with the utmost care, if the pronunciation and propriety of gesture were not attended to. Upon this he built himself a subterranean study, whither he repaired every day to form his action and exercise his voice ; and he would often stay there two or three months together, shaving one side of his head, that if he should happen to be ever so desirous of going abroad, the shame of appearing in that condition might keep him in." The contemporaries of Demosthenes esteemed On the Study of Forensic Eloquence. 147 him as a man of but little genius, and concluded that all his eloquence was the result of labor. Certain it is that he was seldom heard to speak extempore ; and though often called upon in the assembly to speak, he would not do it unless he came prepared. It is un- doubtedly true, that nature had sowed in Demosthenes the seeds of a great orator ; but they were brought to perfection only by the most patient labor and severe discipline — labor and discipline that would make any student of the law, of ordinary judgment and sense, the equal of Pinckney, of Wirt, or of Choate. Think of the eloquence of Cicero ! How wonderful the grandeur and magnificence of his style ; how co- pious and elegant his diction ; how various and com- prehensive his knowledge ; surely, we say, like the dwellers in the East, this is the work of magic — of genius. But when we take off the mask we find that it is mainly the result of careful, unflagging, untiring study and practice. Middleton says : " His industry was incredible, beyond the example or even conception of our days ; this was the secret by which he performed such wonders, and reconciled perpetual study with perpetual affairs." Nor were these orators of antiquity singular in their devotion to the art of speaking. All the great orators of modern times have emulated their greatness by emulating their love of labor. Lord Chatham, who has been justly regarded as the most powerful orator of modern times, was from his early youth a most laborious and devoted student of oratory. His biog- rapher says of him : " At the age of eighteen, Mr. 148 Introduction to Law Studies. Pitt (afterward Lord Chatham) was removed to the University of Oxford. Here, in connection with his other studies, he entered on that severe course of rhe- torical training, which he often referred to in after life as forming so large a part of his early discipline. He took up the practice of writing out translations from the ancient orators and historians, on the broadest scale. Demosthenes was his model ; and we are told that he rendered a large part of his orations again and again into English, as the best means of acquiring a forcible and expressive style. . . . As a means of acquiring copiousness of diction and an exact choice of words, Mr. Pitt also read and re-read the sermons of Dr. Barrow till he knew many of them by heart. With the same view, he performed a task, to which, perhaps, no other student in oratory has ever submit- ted. He went twice through the folio dictionary of Bailey, examining each ivord attentively, dwelling on its peculiar import and modes of construction, and thus endeavoring to bring the whole range of our lan- guage completely under his control. At this time, also, he began those exercises in elocution by which he is known to have obtained his extraordinary pow- ers of delivery. Though gifted by nature with a com- manding voice and person, he spared no effort to add every thing that art could confer for his improvement as an orator." His success was commensurate with his zeal. Garrick himself was not a greater actor, in that higher sense of the term in which Demosthenes declared action to be the first, and second, and third thing in oratory. The labor which he bestowed on On the Study of Forensic Eloquence. 149 these exercises was surprisingly great Probably no man of genius since the dsys of Cicero has ever sub- mitted to an equal amount of drudgery. Lord Mansfield, equally famous as an advocate and judge, affords us another example of unwearying pa- tient discipline. He studied oratory with the greatest fer\'or and diligence. He read every thing that had been written on the subject of the art ; he made him- self familiar with all the great masters of eloquence in Greece and Rome, and spent much of his time in translating their finest productions as the best means of improving his style. During his stud}- of the law at Lincoln's Inn, he carried on the practice of oratory \\ith the utmost zeal, and was a constant attendant and speaker in a debating society which he had joined. One day, says his biographer, he was surprised by a friend, who suddenly entered his room, in " the act of practicing before a glass, while Pope (the poet) sat by to aid him in the character of an instructor." Such are the arts by which are produced those results that the uninitiated ascribe to genius. Sheridan was one of the most brilliant orators of modem times, and yet his maiden speech in Parlia- ment, delivered when he was nearly thirty years old, was a failure. Woodfall, the reporter, used to relate that Sheridan came up to him in the gallery, when the speech was ended, and asked him, with much anxiety, what he thought of his first attempt " I am sorry to sa}-," replied WoodfjiU, " that I don't think this is your line ; you would better have stuck to \-our former pur- suit" Sheridan rested his head on his hand for a few 13* 1 50 Introduction to Law Studies. minutes, and then exclaimed, with vehemence : " It is in me, and it shall come out of me." Quickened by a sense of shame, he now devoted himself, with the utmost assiduity, to the cultivation of his powers as a speaker. Seven years after he brought forward, in the House of Commons, the charges against Warren Hastings, relating to the princesses of Oude, in a speech of such brilliancy and eloquence that the whole assembly, at its conclusion, broke forth into expressions of tumultuous applause, and the House adjourned to recover from the excitement produced by it. Pitt said, "an abler speech was perhaps never delivered," and Fox and Windham, years after, spoke of it with undi- minished admiration. As Sheridan had said to Wood- fall, it was in him and it did come out, but it was wrought out by patient toil and study. Moore paints him at his desk at work on this very speech — writing and erasing with all the care and pains-taking of a special pleader. Indeed, it transpired after his death, that his wit was most of it studied out before hand. His common-place book was found to be full of hu- morous thoughts and sportive turns, written first in one form and then in another — the point shifted from one part of the sentence to another to try the effect. How little did his delighted hearers imagine, as some playful allusion, keen retort, or brilliant sally, flashed out upon them from his speeches, in a manner so easy, natural, and yet unexpected, that it had been long before laboriously moulded and manufactured. John- son tells us, that Butler, the author of " Hudibras," had garnered up his wit in the same way. How con- On the Study of Forensic Eloquence. 151 clusively do these examples illustrate the truth of Sir Joshua Reynolds' remark, that the effects of genius must have their causes, and that these may, for the most part, be analyzed, digested, and copied, though sometimes they may be too subtle to be reduced to a written art. Charles James Fox rose, says Mr. Burke, "by slow degrees, to be the most brilliant and accomplished debater the world ever knew," and Fox himself has told us the secret of his skill. He gained it, he says, " at the expense of the House," for he had frequently tasked himself, during an entire session, to speak on every question that came up, whether he was inter- ested in it or not, as a means of exercising and train- ing his faculties. Curran, the Irish orator and advocate, was known at school as " stuttering Jack Curran ; " and, while studying at an Inn of Court, the members of a debat- ing society to which he belonged called him " Orator Mum," in honor of his signal failure as a speaker. But he had made up his mind to become an orator, and was not to be put down by obstacles. He spent his mornings, as he states, "in reading even to exhaustion," and the rest of the day in the more con- genial pursuits of literature, and especially in unre- mitting efforts to perfect himself as a speaker. His voice was bad, and his articulation hasty and confused ; his manner was awkward, his gestures constrained and meaningless, and his whole appearance calculated only to produce laughter. Such is the picture of him left us by his biographers. Surely, one would think, an 152 Introduction to Law Studies. orator could never be made out of such materials. Yet all these faults he overcame by severe and patient labor. Constantly on the watch against bad habits, he practiced daily before a glass, reciting passages from Shakspeare, Junius, and the best English orators. He frequented debating societies, and unmindful of the ridicule that greeted his repeated failures, he continued to take part in the discussions. At last, he surmounted every difficulty. " He turned his shrill and stumbling brogue," says one of his friends, " into a flexible, sus- tained, and finely-modulated voice ; his action became free and forcible ; and he acquired perfect readiness in thinking on his legs ; " in short, he became one of the most brilliant and eloquent advocates that the world has ever produced. Well might one of his biographers say : " His oratorical training was as severe as any Greek ever underwent." The biographies of Pultney, of Burke, of Pitt, of Erskine, of Grattan, of Brougham — of all the great orators of England — contain records of the same careful training and discipline in the art of speaking. Nor have American orators found the path to suc- cess less difficult. Rufus Choate — who was, perhaps, the most accomplished advocate America has yet produced — was a noble illustration of what systematic culture and discipline can do. He was, in the truest sense of the term, a made orator. Forensic rhetoric was the great study of his life, and he pursued it with a patience, a steadiness, a zeal, equal to that of Chat- ham or Curran. He trusted to no native gift of elo- quence, but practiced elocution every day for forty On the Study of Forensic Eloquence. 153 years as a critical study. Every thing that could be prepared, was prepared; every nerve, every muscle that could be trained, was trained ; every power that daily practice could strengthen, was invigorated. So thoroughly imbued was he with a zeal for oratory, that it formed the subject of his almost daily conver- sation, as it did of his daily practice ; and his biogra- phy will rouse an ambitious student as the sound of the trumpet does the war-horse. Daniel Webster may, perhaps, be considered to have been as nearly a natural orator as any this country has produced ; and yet the students are few indeed that cultivate the art of oratory so laboriously as did he. Even his genius was mainly "science in disguise." He himself told the late Senator Fessenden, that those figures and illustrations in his speeches, which had become so famous and been so often quoted, were, like Sheridan's wit, the result of previous study and prep- aration ; and that that passage in his speech, wherein he describes the glory and power of England — a pas- sage known and quoted the world over — was conceived and fashioned while he was standing on the American side of the Niagara river, listening to the British drum- beats on the Canada shore. From these examples, we may learn that all truly noble orators in every age have trusted, not to inspi- ration, but to discipline ; that great as were their nat- ural abilities, they were much less than the ignorant rated them ; that even the mightiest condescended to certain rules and methods of study by which the hum- blest are able to profit. It is good for the student to 154 Introduction to Law Studies. read of the studies and labors, the trials and conflicts, the difficulties and triumphs of such men. It is to the ambitious student as the touch of mother earth was to Antaeus in his struggle with Hercules — renewing his strength and reviving his flagging zeal. It rouses him to severer self-denial, to more assiduous study, to more self-sustaining confidence, and leads him to feel, like Themistocles of old, that "the trophies of Miltia- des will not let me sleep." These examples will teach him that God has set a price on every real and noble achievement ; that success in oratory, as in every thing else worth succeeding in, can be purchased only by pain and labor ; and lastly and mainly, that those who would follow in their steps must give their days and nights to study, and emulate their greatness by emu- lating their love of labor. Having endeavored to show that eloquence is not so much the result of natural gifts as of persevering and persistent labor, we now proceed to offer some suggestions as to the best means of improvement in forensic eloquence. Socrates used to say that " all men are suflSciently eloquent in that which they understand ; " but it would have been nearer truth to say that no man can be elo- quent on a subject that he does not understand ; nor on a subject that he does understand, unless he know how to form and polish his speech. The two essential things to the orator are something to say and a knowledge of how to say it. There is no art that can teach one to be eloquent without knowledge. Attention to style, diction, and all the arts of speech, can only assist the On the Study of Forensic Eloquence. 155 orator in setting off to advantage the stock of materials which he possesses ; but the stock, the materials them- selves, must be brought from other quarters than from rhetoric. In the first place, the advocate must have a profound knowledge of the law. On this depends his reputation and success, and nothing is of such conse- quence to him or deserves more his deep and serious study. In no other profession is superficial knowledge sooner detected or more ruthlessly exposed, and how- ever brilliant as a speaker one may be, if it but become known that he is not well grounded in the law, few will choose to commit their cause to him. Besides a knowledge of the general principles of law, another thing highly material to the success of every advocate is a diligent and careful attention to every cause that is intrusted to him, so as to be thoroughly master of all the facts and circumstances relating to it. Cicero has left a very instructive record of the method pur- sued by him in the preparation of a cause for trial, and which we commend to the careful consideration of every student and lawyer. He tells us, under the character of Antonius, in the second book De Oratore, that he always conversed at full length with every client who came to consult him ; that he took care there should be no witnesses to their conversation, in order that his client might explain himself more freely ; that he was wont to start every objection, and to plead the cause of the adverse party with him, that he might come at the whole truth and be fully prepared on every point of the business ; and that after the client had retired he used to balance all the facts with himself 156 Introduction to Law Studies. under three different characters : his own, that of the adversary and that of the judge. He censures very severely those of the profession who decHne to take so much trouble ; taxing them not only with shameful negligence, but with dishonesty and breach of trust. Quintilian likewise urged the necessity of carefully studying every cause, again and again recommending patience and attention in conversation with clients. " For," said he, " to listen to something that is super- fluous can do no hurt ; whereas to be ignorant of some- thing that is material may be highly prejudicial. The advocate will frequently discover the weak side of a cause, and learn at the same time what is the proper defense, from circumstances which to the party himself appeared to be of little or no moment." It is said of Rufus Choate, that he began to study a case the mo- ment it was brought to him, and that he continued to study it till the day of trial. Besides the knowledge of the law, the advocate must make himself acquainted with the general principles of logic. He must learn how to reason ; how to draw conclusions from premises ; how to found an argument. Without a knowledge of these things, no matter how copious his diction or elegant his delivery, his speeches will be little more than " sounding brass and tinkling cymbals." The object of the advocate is chiefly to convince, and to do this he must satisfy the understanding. Solid argument and clear method must, therefore, be used. Nothing can be more erroneous than the idea that mere declamation is eloquence. It may have the On the Study of Forensic Eloquence. 157 show, but never can produce the effect ; it " may tickle the ear," but it will never lead a judge to pass that judgment or a jury to adopt that side of the cause to which we seek to bring them. " There is no talent, I apprehend," said Dugald Stewart, "so essential to a public speaker, as to be able to state clearly every step of those trains of thought by which he himself was led to the conclusions he wishes to establish." Espe- cially is this true at the bar — the eloquence suited to which is of the calm and temperate kind, connected with close reasoning. Let the advocate take for his motto the advice of Quintilian, " To your expression be attentive; but about your matter be solicitous." There was much wisdom in the remark of Sir Wil- liam Jones, that " an elegant method of arranging the thoughts is powerful to persuade as well as to please." William Pitt, being asked how he acquired his talent for reply, answered at once that he owed it to the study of Aristotle's logic in early life, and the habit of apply- ing its principles to all the discussions he met with in the works he read and the debates he witnessed. So it is said of Rufus Choate, " he was a thorough master of logic. He had studied it, not only in detail and immediate application of style and arrangement, but in its essence and origin." The treatise best calculated to give the student an insight into the rules and principles of logic is that by Dr. Whately. The book recommended for the exer- citation of the reasoning faculties is Chillingworth's " The Religion of Protestants a safe way to Salvation," which was written in answer to the arguments of an 14 158 Introduction to Law Studies. adversary, and which has for years been considered the most perfect specimen of logical argument. Locke, than whom there could not be a more competent au- thority, proposes " for the attainment of right reason- ing, the constant reading of Chillingworth ; " and Lord Mansfield pronounced it the " perfection of rea- soning." Law and logic are the immediate and foundation studies of the advocate, but they are not all. Besides these he must drink deep at the fountains of science, philosophy, history and belles-lettres. These are the handmaids of oratory. They enlarge and liberalize the mind, embellish the style and afford illustrations, ideas, arguments, phrases, words, and last, though not least, intellectual enthusiasm. There are few occasions, indeed, on which an advocate will not derive assistance from a cultivated taste and extensive knowledge. Their illustrations, allusions and principles, woven in with the weightier matters of the law, will make a pattern which will not fail to please and interest — will throw around the dry and uninteresting legal prin- ciples a freshness and charm that will fix the attention and fascinate the hearer. But perhaps the chief benefit to be derived from their study is the improvement they afford to style and language. Cicero remarked in the third book De Oratore, that " all elegance of language, though it receive a polish from the science of grammar, is yet augmented by the reading of orators and poets." From this source have all great orators drawn their copious and elegant diction and their polished and On the Study of Forensic Eloquence. 159 graceful style. Erskine is represented by an excellent authority as having spoken the finest and richest Eng- lish ever spoken by an advocate. For two years prior to his call to the bar, he devoted himself exclusively to the study of literature, and probably no two years of his life were so profitably spent. In addition to his reading in prose, he devoted himself with great ardor to the study of Milton and Shakspeare. His biogra- phers tell us that he committed a large part of the former to memory, and became so familiar with the latter "that he could almost Hke Porson have held conversations on all subjects for days together in the phrases of the great English dramatist." Here it was that he acquired that fine choice of words, that rich and varied imagery, that sense of harmony in the structure of his sentences, that boldness of thought and magnificence of expression for which he was after- ward so much distinguished. He could have drawn these things from no richer source. To use the words of Johnson, slightly varied, he who would excel in this noblest of arts must give his days and nights to the study of Milton and Shakspeare. "Hither, as to a fountain, Other suns repair, and in their urns Draw golden light." Lord Chatham read and reread Dr. Barrows' ser- mons until he knew many of them by heart, " for the purpose," as he himself said, " of acquiring copious- ness of diction and an exact choice of words." Wil- liam Pitt, his son, obtained his remarkable command of the English tongue from the same source, in con- nection with Shakspeare and the Bible ; the latter he i6o Introduction to Law Studies. studied not only as a guide of life, but as the true "well of English undefiled." No wonder that his contemporary, Fox, should have said of him, "he always has the right word in the right place," William Pinkney has himself unlocked the secret of his intellectual affluence and elegant diction. He says that he made it a rule from his youth never to see a fine idea without committing it to memory. Rufus Choate, in speaking of this fact, said "the re- sult was the most splendid and powerful English spoken style I ever heard." Choate pursued a plan equally commendable. During the greater portion of his life, he made it a practice to read aloud every day a page or more from some fine English author. This he did for the improvement of his expression. He was a most indefatigable student of words, and made the whole round of literature tributary to his vocabulary, The following extract from the address of Lord Brougham to the University of Glasgow will be a sufficient guide, with what has been already said, to the selection of those authors that will tend most to improve the style and diction : " The English writers who really unlock the rich sources of the language are those who flourished from the end of Elizabeth's to the end of Queen Anne's reign : who used a good Saxon dialect with ease, but correctness and perspicu- ity — learned in the ancient classics, but only enriching their mother tongue where the Attic could supply its defects — not overlaying it with a profuse pedantic coinage of words." On the Study of Forensic Eloquence. i6i The great masters of oratory should be studied most carefully and diligently; Erskine, Burke, Pinkney, Webster, and above all, the legal orations of Cicero, are the best models for a young lawyer. Read Boling- broke for specimens of the splendid and ornate ; Fox and Pitt for the classical and argumentative ; advantage may likewise be derived from the letters of Junius. In pursuing these studies, the motto must be mul- tum haud multa — much, not many. No real advan- tage and improvement will be gained from a rambling, desultory course of reading. There is a whole sermon in that saying of Hobbes, of Malmesbury, " If I had read as many books as other persons, I should probably know as little." The wisest and the best informed teach us, both by counsel and example, to read a little and that well ; to count not by the books we have read, but by the subjects we have exhausted. Swift said, that the reason a certain university was a learned place was that most persons took some learning there and few brought any away with them, so it accumu- lated. Such is the effect of a proper course of reading, every thing adds and nothing takes away. We are not counseling an imitation of the men of one book, but the pursuit of one system. Choose those authors most suited to the object in view and know them. The advocate should make choice of his book, Shakspeare, Milton, Bacon, Burke, Erskine, Boling- broke, and make that his chief study. One Stirling author to call my own, ever most conspicuous and most at hand, read, reread, "marked and quoted," 14* 1 62 ' Introduction to Law Studies. will do much to form the mind, to teach one to think, to give precision of expression, purity of taste, lofti- ness of views and fervency of spirit. No better selec- tion can be made by the advocate than the works of Edmund Burke. " Among the characteristics of Lord Erskine's eloquence," observes one of his recent biog- raphers, " the perpetual illustrations derived from the writings of Burke is very remarkable. In every one of the great state trials in which he was engaged, he referred to the productions of that extraordinary person as to a text-book of political wisdom — expounding, enforcing and justifying all the great and noble prin- ciples of freedom and of justice." " When I look," says Lord Erskine himself, " into my own mind and find its best lights and principles fed from that immense magazine of moral and political wisdom which he has left as an inheritance to mankind for their instruction, I feel myself repelled by an awful and grateful sensi- bility from petulantly approaching him." Take, then, the words of this sublime philosopher and orator, bind them up in one thick volume, on which write WISDOM in gold letters, and begin to read it through every New Year's day. Another means of acquiring a command of language is translation, and it is commended alike by the pre- cepts and example of the great masters. Two thousand years ago Cicero stocked his vocabulary by this plan, translating from the Greek into Latin. Chatham trans- lated the orations of Demosthenes again and again into English. Mansfield declared that there was not one of the orations of Cicero that he had not translated On the Study of Forensic Eloquence. ' 163 more tlian once. Pitt pursued the same plan for ten years, and to this he ascribed his extraordinary com- mand of language which enabled him to give every idea its most felicitous expression, and to pour out an unbroken stream of thought hour after hour without once hesitating for a word or recalling a phrase, or sinking for a moment into looseness or inaccuracy in the structure of a sentence. Choate was a most inde- fatigable translator. This exercise he persevered in daily, even in the midst of the most arduous business. Five minutes a day, if no more, he would seize in the morning for this task. Tacitus was his favorite author. He attended chiefly to the multiplication of synonyms. For every word he translated, he would rack his brain and search his books till he got five or six correspond- ing English words. This is the true way to translate when style and diction is the object. Turn the passage read into regular English sentences, aiming to give the idea with great exactness and to express it with idio- matic accuracy and ease. This plan of translating is infinitely better than the plan sometimes advised of taking some passage of classic English, getting the ideas from it and then expressing them in the best manner possible. In this latter method, the author has already selected the most appropriate words, and if the student use the same words he will receive no profit, or if other words, it is prejudicial, as it accustoms one to use such as are less eligible. The student of advocacy cannot give too much atten- tion to the culture of expression. Orators in every age have made it a specific study. Cicero says, " the 164 Introduction to Law Studies. proper concern of an orator, as I have already often said, is language of power and eloquence accommo- dated to the feelings and understanding of mankind." Language and its elements, words, are to be mastered by direct earnest labor. A speaker ought daily to exercise and air his vocabulary and add to and enrich it. The advocate does not want a diction gathered from the newspapers, caught from the air, common and unsuggestive ; but one whose every word is full freighted with suggestion and association, with beauty and power. It is a rich and rare English that one ought to com- mand, who is aiming to control a jury's ear. Chesterfield, in his letters to his son, said, "manner is of as much importance as matter;" and that this has been the opinion of all great orators, may be gath- ered from the vast labor expended by them on the cultivation of expression and delivery. How much stress was laid upon this by the greatest of all orators, Demosthenes, appears from a noted saying of his re- lated by both Cicero and Quntilian ; when, being asked what was the first point in oratory, he answered, action ; and being asked what was the second, he answered, action ; and afterward what was the third, he still answered, action. And Plutarch said of him that " he thought it a small matter to premeditate and compose, though with the utmost care, if the pronunciation and propriety of gesture were not attended to." Esteeming delivery of such, vast importance to the orator, there is no wonder that he should have labored for months together in his subterranean study to form his action and improve his voice. On the Study of Forensic Eloquence. 165 To the superficial thinker, the study of gesture and of the management of the voice may appear to be but " vanity of vanities " — gaudy tinselry and worthless decoration ; but the experience of all time has proved that they are powerful to persuade and strong to con- vince. We all know how much meaning — how much expression — how much power there may be in a look, in a tone of the voice, or in a motion. The impression they make on others is frequently much stronger than any that words can make. They are the language of nature, and are understood by all far better than words, which are only the arbitrary conventional symbols of ideas. The speaker who should use bare words, with- out aiding their meaning by proper tones and accents, would make but a feeble impression, and leave but a misty and indistinct conception of what he had deliv- ered. It is surprising, indeed, to spe how perfectly persons practiced in the art of gestures can communicate even complicated trains of thought and long series of facts, without the aid of words. This fact was known and appreciated by the ancient Greeks and Romans, who made the subject a study far more than have subse- quent nations. Cicero informs us that it was a matter of dispute between the actor Roscius and himself, whether the former could express a sentiment in a greater variety of ways by gestures, or the latter by words. During the reign of Augustus, both tragedies and comedies were acted by pantomime alone. It was perfectly understood by' the people, who wept and laughed, and were excited in every way as much as 1 66 Introduction to Law Studies. if words had been employed. It seems, indeed, to have worked upon their sympathies more powerfully than words ; for it became necessary, at a subsequent period, to enact a law restraining members of the Sen- ate from studying the art of pantomime — a practice to which, it seems, they had resorted in order to give more effect to their speeches before that body. There have been volumes written on this subject of delivery, but they are little better than a "vexation of spirit." The tone of the voice, the look, the ges- ture, suited to express a thought or emotion, must be learned from experience and the example of living speakers and masters. Curran and many others have made it a practice to speak before a glass, that they might themselves judge of the propriety of their ges- tures, and correct those at fault. A more condensed or sensible treatise on this subject cannot be found than Hamlet's direction to the players : " Speak the speech, I pray you, as I pronounce it to you — trippingly on the tongue ; but if you mouth it, as many of our players do, I had as lief the town crier spoke my lines. Nor do not saw the air too much with your hand ; but use all gently, for in the very torrent, tempest, and (as I may say) whirlwind of your passion, you must acquire and beget a tem- perance that may give it smoothness. Oh, it offends me to the soul, to hear a robustious, periwigpated fellow tear a passion to tatters, to very rags, to split the ears of the groundlings ; who, for the most part, are capa- ble of nothing but inexplfcable dumb shows and noise. ... Be not too tame neither, but let your On the Study of Forensic Eloquence. 167 own discretion be your tutor ; suit the action to the word, the word to the action ; with this special ob- servance, that you o'erstep not the modesty of nature ; for any thing so overdone is from the purpose of play- ing, whose end, both at the first and now, was, and is, to hold, as 'twere, the mirror up to nature; to show virtue her own feature, scorn her own image, and the very age and body of the time, his form and pressure. Now, this overdone, or come tardy off, though it make the unskillful laugh, cannot but make the judi- cious grieve; the censure of which one must, in your allowance, o'erweigh a whole theater of others." The student who shall follow these directions, which are as applicable to the speaker as to the player, will not go very far wrong. The first consideration of a speaker must be to make himself heard by all those to whom he speaks. This, though often neglected, is of the first importance, and is a matter that rests mainly in the management of the voice, and not in any strength of lungs. Nor is it, as many suppose, a natural talent, for the voice is susceptible of the greatest culture, and may be formed after almost any model. To make oneself audible, it is not necessary that the voice should be pitched on a high key. Strength of sound does not depend upon the key or note on which one speaks, but on the prop- er management of the voice. A speaker may render his voice strong and full while speaking in a middle or conversational tone, and will be able to give the most sustained force to ihat pitch, as it is the one to which in conversation he is accustomed. The conver- 1 68 Introduction to Law Studies. sational key is the one that the advocate should, with rare exceptions, adopt; otherwise he will exhaust himself and be heard with pain by his audience. Grattan tells us that he heard Lord Chatham speak in the House of Lords ; and it was just like talking to one man by the button-hole, except when he lifted himself in enthusiasm, and then the effect of the outbreak was immense; and of Harrison Gray Otis it is said, that when you met him in the street and heard him talk, you heard the orator Otis almost as much as if he were in Fanuel Hall talking about politics. In the next place, the student of advocacy must study to articulate clearly and distinctly. On this, as much as on the quantity of sound, depends the capac- ity to make oneself heard. We need say nothing with regard to emphasis, pauses, tones and gestures. Every one who goes about his work in earnest will devote proper attention to these matters, and will gain more from experience and observation than from the rules laid down in the books. One thing seldom laid down in the books is of the highest importance to the advocate : that is, to study always to feel what he speaks. Unless he do this, his oratory will be little more than an empty and puerile flow of words. " The author who will make me weep," says Horace, " must first weep himself." " In reality," adds Henry Fielding, " no man can paint a distress well which he doth not feel while he is painting it ; nor do I doubt but that the most pathetic and affecting scenes have been writ with tears." In On the Study of Forensic Eloquence. 169 Shakspeare's Richard II, the Duchess of York thus impeaches the sincerity of her husband : " Pleads he in earnest ? Look upon his face, His eyes do drop no tears ; his prayers are jest ; His words come from his mouth ; ours, from our breast ; He prays but faintly and would be denied ; We pray with heart and soul." No kind of language is so generally understood, or has such force and weight, as the language of feeling. The advocate must be in downright earnest before he can impress his hearers. It only remains for us to add, .that the student of oratory must exercise himself continually in both writing and speaking. Writing is said by Cicero to be " the best and most excellent modeller and teacher of oratory ; " " for," he continues, " if what is meditated and considered easily surpasses sudden and extempo- raneous speech, a constant and diligent habit of writing will surely be of more effect than meditation and con- sideration itself" Write with as much pains as possible, and write as much as possible. It is even as Quintilian said : " It is not by writing rapidly that you come to write well, but by writing well you come to write rapidly." In mental culture, as in the culture of the earth, the seed sown in the deepest furrows finds a more fruitful soil, is more securely cherished and springs up in its time to more exuberant and healthful harvest. Without this discipline, the power and practice of ex- temporaneous speech will yield only an empty loquacity — only words born on the lips. In this discipline, deep down there are the roots, there the foundations ; thence must the harvest shoot, thence the structure 15 170 Introduction to Law Studies. ascend ; there is garnered up, as in a more sacred treasury, wealth for the supply of even unanticipated exactions. Thus, first of all, must we accumulate resources sufficient for the contests to which we are summoned and inexhaustible by them. In writing, seek for the best ; do not eagerly and gladly lay hold on that which first offers itself; apply judgment to the crowd of thoughts and words which fill your mind and retain those only of which your judgment delib- erately approves. Nor should every word be allowed to occupy the exact spot where the order of time in which it occurs would place it. Seek rather by a va- riety of experiments and arrangements to attain to the utmost power and eloquence of style. There is nothing like the Pen to correct vagueness of thought and looseness of expression. Every argument, every speech should, so far as possible, be carefully written out. It is not necessary, nor is it even advisable, to commit it to memory, save in rare instances. The mind should be left untrammeled by any set speech to take advantage of the inspiration of the moment. But the simple act of carefully composing and writing down an argument will fix in the mind the general order and sequence of facts and illustrations, and will greatly aid in a clear and forcible arrangement. The night before Alexander Hamilton delivered his cele- brated speech, which more than any thing else led to the establishment of a liberal and more just law re- garding libel and slander in the State of New York, he wrote the argument all out and then deliberately tore it up. On THE Study of Forensic Eloquence. 171 Besides frequent practice in writing, the student must have constant practice in speaking, which is of more real value than all the precepts of the masters. It is sometimes said that men by speaking succeed in becoming speakers, but it is just as true that men by speaking badly succeed in becoming bad speakers. It is frequently the case, that students do nothing more in practice than to exercise their voice, and not even that skillfully — and try their strength of lungs and volubility of tongue. Such practice is but a waste of breath. The student should make it a cardinal rule always to do his best even while practicing in his room ; to speak on subjects that he has deliberately considered, and in such' a style as he would adopt were an audience before him. Of course, that kind of speak- ing will be most advantageous to the advocate which is most in accordance with the business of his life. Eminent advocates in every age have, while develop- ing their powers, made it a practice to propose a case similar to those brought in the courts, and to make arguments thereon as nearly as possible as they would were it an actual case in court. Cicero followed this plan two thousand years ago, as he himself has told us, and Curran and Choate were both indefatigable in this practice. Such are the means, such the labors by which the student may make himself an advocate. It is not the work of an hour or a day or a year, but of years — years of application and of industry — of patient plod- ding and painful study. It is not by starts of applica- tion and intermittent labor that any thing valuable 172 Introduction to Law Studies. can be achieved. It is the outgrowth of well directed and persistent effort. In nothing more than oratory- are the lines of the poet true : "The Father of our race himself decrees That culture shall be hard." It has been the glory of the great masters of the art to confront and to overcome ; and all the wisdom of these latter days has discovered no other road to success. Ethics of the Bar. 173 CHAPTER XI. Ethics of the Bar. " Christopher St. Germain," says an old legal biogra- pher, " risen of an illustrious stock, formerly of the Society of the Inner Temple, in the suburbs of Lon- don, arrived at such a height of learning, that from the inhabitants of that city he won immortal fame. He was a man, by the consent of all, excellently learned, as well in the laws of his own country as the Canon and Civil laws ; very learned, likewise, in philosophy and the other liberal sciences. With what eloquence and splendid capacity he was endowed, and what gravity and prudence he displayed in his actions, all England knew." The only book of importance he wrote that has come down to our times is one which has ever been cited with respect by our courts, our great judi- cial writers and most learned practitioners ; the same favor being accorded to it in the United States of America. It passes under the name of " Doctor and Student: Two Dialogues between a Doctor of Divinity and a Student of the Laws of England, of the Grounds of the said Laws and of Conscience." What was said by one of our fathers in the Law, to students of the Law, three centuries and a half ago, cannot but be interesting to one of our day anxious to become a worthy successor of those of whom England is proud. And thus spoke St. Germain : " As a light is set in a 15* 174 Introduction to Law Studies. lantern, that all that is in the house may be seen thereby; so Almighty God has set conscience in the midst of every reasonable soul, as a light whereby he may di- vine and know what he ought to do and what he ought not to do. Wherefore, forasmuch as it behoveth thee to be occupied in such things as pertain to the law, it is necessary that thou ever hold a pure and clean con- science. And I counsel thee, that thou love that which is good, and fly that which is evil; that thou do to another as thou wouldst should be done to thee; and that thou do nothing to other that thou wouldest not should be done to thee; that THOU DO NOTHING AGAINST TRUTH; that thou live peaceably with thy neighbor ; that thou do justice to every man, as much •as is in thee ; and also, that in every general rule of the law thou do observe and keep equity. And if ithou do thus, I trust the lantern, that is thy conscience, !shall never be extincted." Which of us, in this our day, will deny that these are words of weighty truth and wisdom ? And in whose ears should they be more constantly sounding than of him to whom they are so solemnly addressed, '" one occupied in such things as pertain to the law ? " What sort of cases were conceived by the Doctor and student of the sixteenth century likely, at first 'sight, somewhat to startle the conscience of a man learned in the law, shall be here briefly exhibited to the student of the nineteenth century. He will find it profitable and interesting to weigh them, and consider, moreover, according to the lights of his present knowl- fedge, the state of the law which gave rise to them. Ethics of the Bar. 175 I. "Suppose," asks the student, "he that is, in fact, the true heir of a nnian, be nevertheless duly certified, by the proper authority, the ordinary, to be a bastard. He brings an action, as the true heir, to recover an estate. Can one who knows the plaintiff to be the true heir, conscientiously be of counsel for the defendant, and plead the mistaken certificate of bastardy against him, to defeat his claim?" The Doctor asks, in turn, another question: " Is the law in this case, that all other men against whom the true heir has title, shall take advantage of the certificate, as well as he at whose particular suit the certificate had been obtained?" "Yea, verily," replies the student, "and that for two reasons: First, there is an old maxim in the law, that a mischief shall be suffered, rather than an 'inconven- ience' or 'contrariosity.' Suppose another ordinary were to certify, in another action, that the plaintiff was the true heir ; here, in one and the same court, of ex- clusive cognizance, the same individual would be pro- nounced, at one and the same time, legitimate and illegitimate ! Therefore, the law will not allow another writ to go forth in such case, that is, after a certificate once obtained; and suffereth, also, all men to take advantage of the certificate, rather than to suffer such a contradiction in the court; which, in the law, is called 'an inconvenience.' Secondly, this certificate is the highest trial that is in the law, in this behalf, and con- clusive against the party to the writ. Forasmuch, then, as the said maxim was ordained to eschew 'an inconvenience,' it seemeth that every man learned in the law may, with conscience, plead the certificate, for 176 Introduction to Law Studies. avoiding that inconvenience, and give counsel therein to the party, according unto the law ; or else the said inconvenience must needs follow." "But yet, neverthe- less," subjoins the student, as it were with a sudden qualm, "I do not mean that the defendant may, after defeating the plaintiff by this erroneous certificate, retain the land by conscience. I think well that he, in conscience, is bound to restore it, if he knew the plaintiff to be the right heir. But my intent is, that a man learned in the law, in this case, may, with con- science, give his counsel, according to the law, in avoid- ing such things as the law thinketh should, for a rea- sonable cause, be eschewed." The Doctor, however, is of a different opinion; first, because, by the law of reason, every man is bound to do as he would be done to; and if the case were the counsel's own, he would consider that another ought not to plead the certificate against his own knowledge of the truth. And secondly, the defendant, as the student had admitted, being bound to restore the land, if he refused to do so, then the Counsel who had pleaded the certificate in favor of that defendant would run in the like offense, as having helped to give him such an option ; and so should put himself to jeopardy of another man's conscience. Therefore, it is the surest way to eschew perils, for the counsel, knowing the plaintiff to be the true heir, not to plead the certificate that he is the false heir. And as to the inconvenience which would needs follow, if it was not pleaded, as to that, it may be answered — Let it be pleaded by some other learned in the law, who knows not how the fact is ; and if there should Ethics of the Bar. 177 happen not to be such another, " then, methinketh, he shall rather suffer the aforesaid ' inconvenience ^ than hurt his own conscience, for alway charity beginneth at himself; and so every man ought to suffer all other offenses rather than himself would offend." "And now," concludes the Doctor, "that thou knowest mine opinion in this case, I pray thee proceed to another question." II. The second question of the student is this : "Sup- pose a bond debtor pay the full amount due to his creditor, but either through inadvertence omits to take, or by misfortune loses, the acquittance for it ; where- upon the creditor brings an action against him, so that, by common law, he shall be compelled to pay the money again : may a man conscientiously be of coun- sel with that plaintiff, knowing that the defendant has matter which would discharge him in any court of equity, but would be unavailing as a plea at the com- mon law ? " In a previous chapter, the Doctor had asked a ques- tion on this subject; and said, it is grounded on the law of reason, that debts ought of right to be paid ; and, upon the law of reason (as it seemeth), when they be paid, he that paid them should be discharged : to which the student had replied, that there was a general maxim of the law of England, that, in an action of debt on a bond, a man shall not be allowed to plead that he does not owe the money; and can in nowise discharge himself in that action, unless he have an acquittance, or some other writing sufficient in the law, or some other like thing, witnessing that he hath paid 178 Introduction to Law Studies. the money. That is ordained by the law to avoid a great inconvenience, that else might come to many people; that is to say, that every man, by a nude parol, and by a bare averment, should avoid his sol- emn deed ; wherefore, the law holds, that, as a man is charged by sufficient writing, he must be discharged by sufficient writing, or other thing of as high author- ity as the writing that chargeth. This law is made on a good, reasonable ground ; and one who, by default or misfortune, is remediless at law, may. be holpen in equity, as he may in many other cases, where conscience serveth him." On this the Doctor had asked, "under what manner a man may be holpen by conscience, and whether in the same court or another? " To this pas- sage, the student refers the Doctor, in the sixth chapter of the second dialogue ; and then " prays to be shown the opinion" of the Doctor, as to the duty of a counsel for the creditor, who, he knows, is seeking to be paid his debt twice over. "This case," replies the Doctor, "seemeth like the one concerning the certificate ; and that he that knoweth the payment to have been made, doeth not as he would be done to, if he give counsel that an action should be taken to have the money paid again." "If he be sworn to give counsel," says the student, " according to the law, as sergeants at the law be, it seemeth he is bound to give counsel according to the law ; for else he should not perform his oath." The Doctor reminds the student, that the words "according to the law," involve the law of God and of Reason, as well as the law and customs of the realm, Ethics of the Bar. 179 and that certain it is, that this article, viz., that a man should do as he would be done to, is grounded on the law of God and of reason, wherefore giving counsel, in this case, against the defendant, is doing against both the said laws." "If," quoth the student, "the defendant had no other remedy but the common law, I would agree well it were as thou sayest ; but, in this case, he may have good remedy "by a writ out of equity ; and this is the way that shall induce him directly to resort to a court of equity, as soon as he sees that otherwise the plaintiff will recover in a court of law." "Though," rejoins the Doctor, "the defendant may be discharged by a court of equity, yet it will put him to expense to commence a suit and bring in his proofs there ; who, besides, may happen to die before they come into the court of equity. Besides, there is a ground in the law of reason, that we may do nothing against the truth ; and, though the counsel knows it is true that the money is paid, he must, if he be of coun- sel with the plaintiff, suppose and aver, that the debt is the very due of the plaintiff, and that the defendant withholds that debt unlawfully, which the counsel knows to be false. Therefore, he may not, with conscience, be of counsel with the plaintiff, knowing that the plaintiff is paid already. "Wherefore, if thou be contented," says the Doctor, "with this answer, I pray thee proceed to some other question." Whether the "Student" was or was not "contented," is left to be gathered from his reply, " I will with good will ; " and so closes the chapter. l8o Introduction to Law Studies. Let us proceed to inquire how these two difficuhies, if such they be, would be dealt with by a conscientious counsel of our own day. Neither of the two cases could now arise, it must be observed, in the form in which they presented themselves to the thoughtful and learned interlocutors of the sixteenth century. How this has been brought about, may, in each instance, be here pointed out to him distinctly, as affording addi- tional and vivid illustrations of the difference between law as it was, and law as it is. For the certificate of the Ordinary, in the former of the two cases, must now be substituted a far more potent document — the Decree of the Court for Divorce and Matrimonial causes, which are no longer of ecclesiastical cognizance. In the year 1858, was passed a statute introducing, as we have seen, a novel element into the law of England. The court last mentioned may now make a " Decree, binding, to all intents and purposes, on her Majesty, and on all persons whomsoever. Declaratory of the legiti- macy or illegitimacy of the applicant, or of the validity or invalidity of the marriage of his father and mother, or of his grandfather and grandmother." Supposing, now, an action of ejectment brought to recover an estate, the plaintiff's right depending entirely on his legitimacy, as being the true heir of his father. The defendant happens to retain as counsel one who chances to be personally cognizant of the fact that the plaintiff is verily legitimate; but the first item of proof in his brief for the defendant consists of a decree of the court for divorce and matrimonial causes, that the plaintiff is illegitimate; that is, a solemn, decree Ethics of the Bar. l8l of a court of competent jurisdiction, declared by the legislature to be binding, to all intents and purposes, on all persons whomsoever, both sovereign and sub- ject. Surely, even a scrupulously conscientious advocate would, in the case at present under consideration, be justified in simply presenting to a court of law the decree in question, as authoritative and conclusive evidence of the fact in issue. He would be acting strictly in accordance with, in obedience to, the law of the land ; to do so, being, of itself, a moral duty. The question is not, whether, under the circumstances, a man of honor and independence would at once decline to act as counsel for the defendant. He would have a right, and would undoubtedly be expected, so to de- cline, all men appreciating his motives and applauding his conduct ; but might not even he, at the same time, justly say, " If a plaintiff, knowing the law to be, as it is, against him, will nevertheless persist in appealing to that law, and demand its decision in his favor, he can- not complain if his opponent, and his opponent's counsel, encounter and defeat him by the unequivocal authoritative decree of that law ? " Suppose, however, a very different case, that no such conclusive evidence is in existence, and that the result of the cause depends on convincing a jury that the plaintiff was illegitimate, while the defendant's counsel positively knew him to be legitimate. Suppose that counsel were, nevertheless, to use every art of persuasion he possessed, his utmost logical subtlety and trained dexterity, in dealing with uncertainties and 16 1 82 Introduction to Law Studies. ambiguities attaching, unfortunately, to facts, in order to lead the jury, in the discharge of a solemnly sworn duty, to a wrong conclusion, thereby also inflicting cruel and perhaps irreparable injustice. Is there, ought there to be, a member of the bar of England, is there an advocate of any bar, is there a gentleman in Christ- endom, who would not denounce such vile conduct, and repudiate the fellowship of one who could be guilty of it ? In vain would such a man urge, that the jury were sworn to give their verdict "according to the evidence." He was morally disabled from dealing with that evidence, for the purpose of convincing them that it led them into the way of truth and justice, while he knew that he was forcing them into that of falsehood and injustice. Knowing what he knew, — by volun- tarily undertaking, and that from a sordid love of pelf, an unprincipled rivalry, or any other evil impulse or motive, to mislead the jury, — he voluntarily thrust himself without the pale of honor and justice, content thenceforth to herd among the ignominious ones who justify the wicked for reward ; and who, if not grown callous, may well tremble under the question : What shall be done unto thee, thou false tongue f Proceeding to the second of these cases of con- science, let it be first remarked, that the facts on which the question is based would be so dealt with, now-a- days, by a court of Law, as would greatly delight the discreet conscientious Doctor, and peradventure please, but certainly astonish, the astute Student with whom he was holding so edifying a colloquy concerning the grounds of the law of England, and of Conscience. Ethics of the Bar. 183 One and the same court would give the defendant, unrighteously sued by his creditor, a prompt and com- plete relief: nay, the aforesaid creditor, though never so knavishly disposed, would not dare to make the at- tempt. For, first of all, the defendant would be him- self a competent witness to prove that he had paid the plaintiff, whether a receipt had or had not been taken for the money. Secondly, he might compel the plaintiff to appear in court at the trial and answer, on his oath, whether he had not been paid ; and, thirdly, the de- fendant might, at any time before the trial, deliver written interrogatories to the plaintiff, which he must answer, by affidavit, on pain of attachment for con- tempt of court ; and if he failed to do so satisfactorily, he might be compelled to submit to an oral examina- tion before one of the masters or a judge of the court ; and even this is not all — for the plaintiff might be mulcted in the costs incurred by his having thus driven the defendant to examine his unconscientious opponent. Thus, we see a court of law armed with ample power to frustrate fraud, to afford equitable relief to its suit- ors; wielding for that purpose, in the case under consideration, one of the most potent weapons of a court of equity, interrogatories, to compel a discovery of the facts sought unrighteously to be concealed. Thus, great is the difference between a defendant of the sixteenth and nineteenth centuries, harassed by an unconscientious plaintiff. Supposing, however, that matters stood now as they did then, and as they continued to do down even to the year 1854, can there be a doubt that the Student, if he 184 Introduction to Law Studies. were not, ought to have been convinced by the enhght- ened reasonings of the Doctor, founded, as they were, on an appeal to the highest and purest principles of jurisprudence ? That counsel lending himself to so gross an attempt to defraud as that proposed, would constitute himself, deliberately, particeps criminis ! If he were to read in his brief the following passage: "The amount of the bond has been, in fact, paid, but the defendant has no witness of, or receipt for the payment, and is not in circumstances to incur the expenses of applying to a court of equity ; " would not that brief be rejected with indignation by every one having the faintest pretensions to the character of a gentleman ? The student must be apprised that the main princi- ples of law involved in both the cases put in Doc- tor and Student remain in full force, however altered may be the machinery by which they are set in motion. The law may prescribe what shall be the effect due, equally, to the old certificate of the Ordinary, and the new Decree of the Court for Divorce and Matrimonial causes, namely, that each instrument be conclusive evi- dence of the fact which it "certifies" or "decrees." In hke manner, a man that is charged by sufficient writing, cannot be discharged but by matter of as high a nature, or by performance, or its equivalent. Now, as allegiance and protection are reciprocal, in the case of sovereign and subject, so, if a man must obey the law of the land, he is entitled to have the benefit of its provisions, if applicable to his case. It is possible, however, that its spirit may be against him, while its Ethics of the Bar. 185 letter is for him, and he may choose to make an uncon- scientious use of his strict right. The extent to which he may or may not do this, indicates the distinction be- tween a good and a bad system of law ; as, for instance, maintaining a rigid rule of Law, inaccessible to the dictates and appeal of equity. It might be deplored, but could not be helped, if the faulty condition of the existing law could be conceived as permitting a cred- itor to compel the payment of his debt twice over. The sovereign is sworn to cause the law to be exe- cuted in all her judgments ; those judgments are pro- nounced by judges sworn to decide according to that law ; which requires an oath from jurymen to give a verdict according to the evidence. Imagine, under these circumstances, a plaintiff coming into court, hav- ing complied with every due form, and satisfied every requirement of legal process. He stands on the floor of that court, in his own proper person, and demands the decision of the law, namely, that having proved, under the defendant's hand and seal, that he owes the plaintiff £100, the jury should give him a verdict and the court a judgment for that amount. The defendant is also in court, vehemently protesting that he had paid every farthing to the plaintiff; but when asked for his proofs can give none. The judge must direct, and the jury must give, a verdict for the whole amount claimed by the plaintiff; though they, and every man in court, were morally certain that the debt had been paid — nay, even though the plaintiff should say, " I decline to answer whether I am paid already or not ; if you have paid me, prove it ; I am in a court of Law, and stand on IG* 1 86 Introduction to Law Studies. my rights." But does the question bear even asking, whether he can expect or require this flagrant iniquity to be knowingly perpetrated for him by counsel, — by one of an honorable and dignified profession, profess- ing to guide their conduct by the lights of Truth and Justice ? If he could require this, then an advocate becomes, indeed, the mere tool of his client, the very slave of Satan. The case has been here purposely proposed in its naked monstrosity: " Of so frightful mien. As, to be hated, needs but to be seen." Here are Right and Wrong seen as distinctly opposed to each other, as noonday light and midnight darkness in the natural world. As the confines, however, of these cannot be distinctly defined, so is it in the moral world with the confines of right and wrong. The two seem often to melt into each other, and, amid the hazy twilight, a conscientious man may miss his way. Right and wrong he feels to be right and wrong everywhere, and always ; yet it is possible that he may mistake the one for the other. It is then that his lantern stands him in good stead ; but he should keep it ever trimmed and fed with oil. " Nothing," says an eminent moralist of the present day, " can be more worthy of reverence than conscience. It is the expression of the supreme rule, so far as each man has been able to discern that rule. Conscience is to each man the representative, and invested with the authority, of the supreme law. It is the voice which pronounces for man the distinctions of right and wrong, Ethics of the Bar. 187 of moral good and evil ; and when he has done all that he can to enlighten and instruct it by the aid of religion, as well as morality, it is, for him, the voice of God. To disobey the commands and prohibitions of conscience, under any circumstances, is utterly immoral. It is the very essence of immorality. In order to be moral, a man must be thoroughly consci- entious ; he must be careful to satisfy himself what the decision of his conscience is, and must be resolved to follow the course thus prescribed, at any rate and at any sacrifice. Nothing can be right, which he does not do with a clear conscience. Whatever danger or sorrow lies in one direction, whatever advantage and gratification of the desires and affections in the other, he must not shrink or waver. Whatever may be gained by acting against his conscience, the consistency and welfare of his whole moral being are lost; his moral progress is arrested ; he commits a grievous transgression; and mortality can assure him of no means by which the evil may be remedied, and the broken unity of his moral being restored. " A man is bound in conscience to do what he thinks is right ; but he is also bound to employ his faculties in ascertaining what is right. In cases in which he has not ascertained this, his course is doubtful; and, for the purposes of right action, it is requisite that these doubts be removed. Every case of moral action is, for the person who acts, a case of conscience ; but, in the greater part of such cases, the rule of duty is so plain and obvious that no doubt arises as to the course of action, and thus no internal inquiry brings the con- 1 88 Introduction to Law Studies. science into notice. In cases in which there appear to be conflicting duties, or reasons for opposite courses of action, we must endeavor to decide between them, by enlightening and instructing the conscience; and these are especially called cases of conscience." Tested by an appeal to this awful Inmate of man's inner nature, how many apparent conflicts of duties disappear ! The moralist has been speaking of cases in which the rule of duty is so plain and obvious, that no doubt arises as to the course of action; and an instance of such has just been exhibited to the reader. Other cases, however, he supposes, in which there are con- flicting duties, or reasons for opposite courses of action ; and the profession of advocacy, independently of its inherent difficulties to a high-minded practitioner, affords frequent instances of cases of conscience, or con- flicting duties. One such, arising out of an actual and memorable occurrence, shall be submitted to the reader. A counsel is retained to defend a prisoner on a charge of murder. After a whole day's zealous public exer- tion on behalf of his client, and when almost on the eve of addressing the jury, that client suddenly sum- mons him to the bar and privately confesses himself guilty. " Of course, then," whispers the astounded advocate, "you are going to plead guilty?" "No, sir ! " replies his alarmed client, " I expect you to defend me to the utmost." Has a case of conscience here arisen for the advo- cate, or is his course of duty plain ? Let us first in- quire, what was the duty he originally undertook ? Ethics of the Bar. 189 The answer to this question involves the whole theory and doctrine of Advocacy, and must be given with much consideration. While it is a rule, or maxim, of natural justice, that no man shall be the judge in his own cause, it is equally a maxim of natural equity that every one shall be heard in his own cause, — that he shall not be con- demned unheard. But what must he be " heard " to say ? Simply, in the first instance, that as the law pre- sumes him innocent, though charged with guilt, that guilt must be proved against him according to the law, — the law of the land. The prisoner, knowing himself guilty, would, never- theless, have had a legal right to shift and to sift every item of evidence brought against him, — to test its truth, its legal and logical admissibility, relevancy and sufficiency ; to cross-examine closely and severely every witness, in order to test his trustworthiness and accu- racy ; and reason on the evidence, so as to persuade or convince his jury, that the case had not been proved against him ; knowing that he had heard every jury- man swear " well and truly to try him, and a true ver- dict give, according to the evidence ; " and that to them, consequently, a fact, however important, and respecting which they entertained no moral doubt, was, to all intents and purposes, as though it did not really exist, if not proved to them by proper evidence, or legitimately deducible from other proved facts; for, gttod non apparet, noti est. He also knew, that the jury were bound not to convict him, if they entertained real doubts as to the sufficiency of the proof brought ipo Introduction to Law Studies. to rebut the presumption existing in favor of his inno- cence ; and, above all, that the law could not compel him to criminate himself, — that is, to extort a confession to supply deficiency of legal evidence. If he consid- ered a case to have been made out against him, which required to be rebutted by counter evidence, that he was entitled to adduce, but truly ; a condition attach- ing to himself, as closely as to his prosecutor. This unvarying and paramount obligation to the observance of truth, it is of vital importance for the parties them- selves to recognize, as investing them with responsibil- ities not to be evaded, or trifled with. They have no more latitude in dealing with hostile facts than advocates. These being the prisoner's rights, which, if he had chosen and been able, he might personally have exer- cised, let us proceed to inquire, in the first place, with what rights could he invest counsel, whom he retained to defend him, withholding the confession of his guilt ? The answer is, those rights which belonged to the prisoner himself It is, to quote the earliest annotator on Blackstone's Commentaries, the extension of the maxim of natural equity, that every one shall be heard in his own cause, which warrants the admission of hired advocates in courts of justice ; for there is much greater inequality in the powers of explanation and persuasion, in the natural state of the human mind, than when it is improved by education and experience. Among professional men of established character, the difference in their skill and management is generally so inconsiderable, that the decision of the cause de- pends only on the superiority of the justice in the Ethics of the Bar. 191 respective cases of the litigating parties. Hence, the practice of an advocate is absolutely necessary to the administration of substantial justice. " It belongs," said an eminent judge in the Irish courts, " to every subject of this realm, in all courts of justice, to assert and defend his rights, and to protect his liberty and life by the free and unfettered state- ment of every fact, and use of every argument and observation that can legitimately — that is, according to the rules and principles of our law — conduce to those important ends. Every man has this right, and he may exercise it in his own person. He may commit its exercises to counsel ; but its nature or character is not altered by this delegation. It is still the same, to be exercised in the same manner and for the same purposes, and subject to the same limitation and con- trol as it would if the party were pleading his own cause. These considerations will at once show the fallacy of the argument, that instructions to counsel are the test by which we should try whether or not the line of duty has been passed. No instructions can justify observations that are not warranted by facts proved, or which may legally be proved ; and it is the duty of counsel toward their clients to use their own judgment, experience and discretion; and, as to the result, whatever be their instructions, to exclude all topics and observations of which the case does not properly admit. Subject to its just and necessary limits, this right, when duly exercised and directed to its proper purposes, should not be fettered or impeded ; for if it be, an injury is sustained, not by the advocate ig2 Introduction to Law Studies. but by the client ; and not by the cHent alone, but by the whole community, whose interests are necessarily connected with the right, essential to the administra- tion of justice." One portion of the foregoing forcible exposition requires qualification. So far from the advocate being entitled to say more than, or even as much as, his client would have been allowed to say under the same circumstances, he is laid, by the presumption of his superior knowledge, under greater restraint. " I apprehend," said a very learned and upright judge, Mr. Justice Holroyd, "that a counsel is in the same situation and under the same protection as the party himself, with this exception, perhaps, that a party, from his comparative ignorance of what is or what is not relevant, may be indulged in a greater latitude, and not be restricted within the same limits as a counsel, whose superior knowledge, of itself, should be sufficient to restrain him within due bounds. But, strictly speaking, they stand upon the same foundation." The advocate, only thus far prop- erly restrained, would undertake the defense of his chent heartily, and with all the learning, skill and vigi- lance he could exhibit. Let the circumstances against the prisoner be ever so atrocious, it is still the duty of his advocate to see that his client be convicted, if at all, only according to law — that is, in strict con- formity with those rules and forms which the wisdom of the legislature, and of the law, has established as the best protection of the liberty and security of the subject. Let us now suppose the fact of his guilt to be com- municated, in the first instance, by the prisoner to his Ethics of the Bar. 193 counsel, on the original retainer; that the very first paragraph in the brief was in these words : " It would be wrong to conceal from counsel the prisoner's frank acknowledgment that he committed the murder, and under the circumstances detailed in the depositions ; but he, nevertheless, desires everj^ exertion to be made to save his life." A man of honor would either decline to hold the brief, or, reluctantly yielding to importu- nity, distinctly apprise his client, that, under such cir- cumstances, counsel could do no more than see that the case was made out by proper evidence, according to the prescribed forms of law. Having now seen the duty originally undertaken by counsel when defending a prisoner, either with or with- out the knowledge that he confessed himself guilty, let us approach the very serious case proposed for consider- ation, — that of the secret, sudden, spontaneous acknow- ledgment to his counsel of that guilt, at an advanced stage of the trial, accompanied by a demand still to be defended to the utmost. Had he a right to make that demand, and was it consequently the counsel's duty to yield to it ? Did the relation of counsel and client con- tinue ? Or was it, with all its incidents, dissolved by the confession ? Had the counsel a right to say. You have freed me from my engagement — nay, even go so far as to urge, salus populi, suprema lex ; you have, by your voluntary act, imposed on me a different and a higher duty, one owing to the community, to bring a guilty man to punishment ? The answer would be, that he could not violate the sacred confidence reposed in him, in virtue of which, alone, the fearful confession had been 17 194 Introduction to Law Studies. made. " But suppose," the harassed advocate might ask himself, " notwithstanding the prisoner's unequivo- cal confession to me, the jury acquit him deeming the evidence adduced insufficient ; what, if an innocent man, unhappily entangled in the meshes of strong circumstantial evidence, should be put in the place of the acquitted prisoner, and his life be in danger, while I am the depositary of this dreadful secret ? Even if the irreversible acquittal of my guilty client could break the seal of silence imposed on me so long as our confidential relation lasted, he might abscond, or deny the fact of his confession, my evidence to the contrary would not be admissible at the trial ; and, in the event of conviction, that evidence might or might not avail with the executive to procure a pardon. Even if it did, what a blighting stigma, inflicted by a public conviction for murder, on an innocent man, would have been avoided, had I not been condemned to silence." Let it be supposed, on the other hand, that this " confession," however solemn, circumstantial, and intrinsically probable and consistent, might, neverthe- less, afterwards prove to have been false; made in a moment of hallucination, — in a sudden accession of madness — the delirium of an overwrought imagina- tion, — as has often happened. Is the counsel bound to assume and act upon the truth of the confession ? Or may he not say, in favorem vitce, I will not believe in the truth of this extraordinary confession, but pro- ceed to discharge my duty with, perhaps, necessarily diminished efficiency, but greatly increased circum- Ethics of the Bar. 195 spection and anxiety? Or, suppose again, that he believed the confession to be true, and, at the same time, the evidence adduced against the prisoner to be false ; the corrupt and deadly fruit, for instance, of a large reward offered for evidence ; the result of malig- nant hatred and revenge ; or of honest but obstinate error on the part of the witnesses. And again, would not the effect of the sudden silence and retirement of counsel be, of itself, fatal to the prisoner, who had originally retained him as counsel, confidently relying for his life's sake on the absolute sanctity of the relation between counsel and client ? If any bystander had overheard the confession, it would become his duty to disclose it; if one of the jury had heard it, he would have been bound to rise in the jury box, tender himself as a witness, and, after giving the evidence, deliberate with his brethren as to the effect due to it ; and if even the judge trying the case had happened to hear the confession, he, also, it seems, could and ought to be sworn and give evidence to the jury, — he, equally with the juryman, being liable to cross-examination on the part of the prisoner. Thus, then, the counsel alone — who, moreover, does not know that the confession of guilt is true, — is for- bidden to reveal the disclosure, because it had been made to him during the existence of the sacred rela- tionship of counsel and client; and that counsel, so far from being released by his client, is required to discharge his duties to the utmost, and to the last. The advocate, under these circumstances, assuredly cannot regard the relation of counsel and clien.tr as igQ Introduction to Law Studies. dissolved by the fact of confession, however strongly he may believe in its truth. But how is he thenceforth to discharge his suddenly disturbed duties ? The an- swer is not difficult, and may be given with confidence, in the apt and felicitous language of one of the most distinguished judges of modern times, Lord Wensley- dale, then Mr. Baron Parke, when suddenly appealed to on such an occasion of direful perplexity. He first desired to be informed, distinctly, whether the prisoner insisted on his counsel's defending him ; and, on hear- ing that he did, said, " that the counsel was bound to do so, and to use all fair arguments arising on ike evi- dence ; " counsel would, in such a case, remind the jury, in cogent terms, that they were sworn to give a true verdict according to the evidence, and according to nothing else ; he might urge, by all fair arguments, for instance, that the whole of the evidence might be true, and yet not necessarily prove the prisoner's guilt, at all events, with requisite clearness and certainty ; that links in the chain of proof were wanting, which might have been supplied ; that identity appeared on the evi- dence questionable ; that the witnesses could not, from various causes, be depended upon, judging from what had been elicited in open court. All this, however, would be done fairly by the conscientious advocate, and under the terrible restraint imposed by his own individual belief in, if not knowledge of, the prisoner's guilt. If a counsel, under such circumstances, could not go thus far, then advocacy would be annihilated, and the reign of universal injustice and oppression commence. Ethics of the Bar. 197 Mention has been made of difficulties inherent in the profession of advocacy, and that too in its ordinary- practice — alike in civil and criminal cases ; in questions of law, and in questions of fact; in addressing judges or juries. Let a moralist be supposed to whisper thus to counsel about to open the case of a defendant: " Sir, you believe, or strongly suspect, that the moral merits are all against your client, and with the other side; yet you are rising in reliance on your practiced dexterity, and, it may be, on a feeble judge, a credu- lous jury, an inexperienced opponent Or, if they be all fit for their posts, still you rely on superior tact and knowledge, in order to gain a triumph by unconscien- tiousness ; to trip up, if you can, by legal quirks and quibbles, the heels of the kind-hearted person who, as you cannot but see from your own brief, had lent your worthless client a thousand pounds to save him from ruin." The advocate, in his turn, wishes to put a question to the moralist : " Suppose me to be retained for the plaintiff in this case, and to be of your opinion as to the moral merits ; would you sanction my using all that experienced dexterity for which you give me credit, in order to evade the law of the land, which I know to be in itself just, and applicable to the case, and this, too, in a court of law ? Would not that be, of itself, the violation of a moral duty ? And that, too, as you assume, to gain a moral end ? Do you really approve of the sophistical subtlety with which I am knowingly to suggest, and get the court to act upon, an unreal distinction, a false analogy ? Is this your morality ? " What is the ethical difference, be- 17* ig8 Introduction to Law Studies. tween using relevant rules of law, to enforce an in- equitable demand, and abusing them to defeat it ? " Quitting these questions, suggestive of many others to both lawyer and moralist, let it be attempted briefly and plainly, to place the important subject, to which they refer, upon solid foundations. Let the practitioner of the law, first of all, advert, for a moment, to the nature of that law itself, which we are reminded in Doctor and Student is founded on the law of God and of Reason, as well as the law and customs of the realm ; the aim of law being to secure right and justice. He who practices that law — the advocate — is not merely a lawyer, but a moral agent ; and that charac- ter he cannot put off, by putting on any professional character. As such moral agent, he is a judge of right and wrong, and an advocate of what is right ; and so far is bound to be just in his judgments, and sincere in his exhortations. Every man when he advocates a case in which morality is concerned has an influence on his hearers, derived from the belief that he shares the moral sentiments of all mankind. This influence of his supposed morality is one of his pos- sessions ; which, like all his possessions, he is bound to use for moral ends. If he mix up his character as an advocate with his character as a moral agent, using his moral influence for the advocate's purpose, he acts immorally. He makes the moral rule subordinate to the professional rule. He sells to the client, not only his skill and learning, but himself He makes it the supreme object of his life to be, not a good man, but a successful lawyer. If it be alleged, that, by allowing Ethics of the Bar. 199 the difference of his professional and unprofessional character to be seen in his pleading, the advocate will lose his influence with his hearers ; the moralist will reply, that the advocate ought not to have an influence which arises from a false representation of himself; and that, if he employ the influence of his non-pro- fessional character, he is bound, in the use of it, to non-professional rules of duty. To act rightly is his proper object ; to succeed as an advocate, is a proper object only so far as it is consistent with the former. To cultivate his moral being is his highest aim ; to cultivate his professional eminence is a subordinate aim. Not only is it his duty, thus to cultivate and practice his profession in subordination to moral ends, and to reject its rules where they are inconsistent with this subordination, but there belong to him moral ends which regard his profession ; namely, to make it an institution fitted to promote morality. He must seek so to shape its rules, and so to alter them if need be, that they shall be subservient to the rules of duty. To raise and purify the character of the advocate's profession, so that it may answer the ends of justice, without requiring insincerity in the advocate, is a proper aim for a good man who is a lawyer ; a purpose on which he may well and worthily employ his efforts and his influence. No enlightened student or practitioner of jurispru- dence, no one sensible of what constitutes the true greatness and dignity of his profession, and a title to public respect as a member of that profession, will dissent from these doctrines of the moralist, nor will 200 Introduction to Law Studies. their truth and importance be diminished, in the advo- cate's estimation, if he should have even a growing sense of the difficulty of regulating his conduct by them. The moralist will readily grant, that it is likely to answer the ends of justice in a community, that there should exist a Profession of Advocacy — a body of men ready to urge, with full force, the arguments, on each side, in doubtful cases. It will as readily be conceded, that, if the advocate, in his mode of pleading and exer- cising his profession, allows it to be understood that this is all he undertakes to do, he does not transgress his duties of truth and justice, even in pleading for a bad cause ; since, even for a bad cause, there may be argu- ments, and even good arguments. But the moralist will as sternly insist, that, if the advocate, in pleading, assert his belief that his cause is just, when he believes it unjust, he offends against Truth, as any other man would do, who, in like manner, made a like assertion ; nor is it conducive to the ends of justice, that every man, however palpably unjust his cause, should have such support to it. To this proposition also, of the moralist, will give his instant and hearty assent, every advocate worthy of being allowed to become, and continue such — every advocate desirous of being regarded as a man of honor ; who is not in fact, simply a knave ; nay, in plain terms, a liar, however his callous conscience may feel at ease under the shelter of a supposed " convention." " There are falsehoods which are not lies," says Dr. Paley, in his chapter entitled "Lies;" "that is, which are not Ethics of the Bar. 20 i criminal; — where no one is deceived, which is the case, in a servant's denying his master; a prisoner's pleading not guilty; an advocate asserting the justice, or his belief of the justice, of his cUent's cause. In such instances, no confidence is destroyed, because none was reposed ', no promise to speak the truth is violated, because none was given, or understood to be given." "A lie,'' he had said, in the opening sentence of the chapter, " is a breach of promise ; for whoever seriously addresses his discourse to another, tacitly promises to speak the truth, because he knows the truth is expected." It may be difficult to determine, whether Paley, in adding what followed, as above, was speaking, as far as an advocate was concerned, con- temptuously or contemptibly. What could have war- ranted the former, but the degraded condition of the Bar, or at least of many members of the Bar, of his day ? Are we to suppose, that it was then the general and unchecked practice of counsel to assert, personally, the justice, or his belief of the justice, of his client's cause ? But how are we to explain the conduct of the judges on such occasions ? Must they be supposed to have been so dead to a sense of propriety and decency, as to tolerate so wide and often profligate a departure from the course of true advocacy? If it were so, Paley may have considered that he best dis- countenanced so vile a practice by the degrading fel- lowship which he established between a footman, a barrister, and a criminal in the dock ! If, however, he meant his words to be understood literally, and in their obvious sense, then he spoke contemptibly indeed. 202 Introduction to Law Studies. His morality was as flimsy and fallacious, as his igno- rance of the profession of advocacy was complete and inexcusable. He makes, even, no distinction, it will be observed, between an advocate's professing "his belief," truly or falsely, "of the justice of his client's cause." In either case, what he said was allowable, because no confidence was destroyed, no promise vio- lated ! The criminal absurdity, however, of such a doctrine becomes apparent, on simply asking, with a sounder moralist, if it be worth a serious question, " if there be no mutual understanding that the advocate shall speak truly, to what purpose does he speak, or to what purpose do judges or juries hear?" Accord- ing to Dr. Paley, it is the duty of, or at least allowable for, an advocate to do all that can be done for a client ; among other things, and especially, to lie for him ! If the student, or youthful advocate, were to refer to the great work of Puffendorff, in order to relieve any scruples of conscience he might feel, he would meet with doctrine calculated to startle him not a little. According to this Light of Conscience, there is a distinction between advocates lying in civil and crimi- nal cases ! In the former, an advocate cannot, with a :safe conscience, hinder the injured party from obtaining Tedress, as soon as may be ; and therefore, " in such controversies," says the moralist, "we condemn as un- lawful, not only false allegations and feigned reasons, but, likewise, all dilatory exceptions and demurs." But in criminal cases, a distinction is, it seems, to be made between counsel assigned by public authority, and one selected by the prisoner himself. It does not Ethics of the Bar. 203 seem allowable for the former to make use of feigned arguments, and false colors ; " but he whom the prisoner particularly chooseth, and retains to plead in his behalf, since he only acts as his client's interpreter, may law- fully use the same method of defense as the prisoner might. Nor is justice in any great danger of suffering by this permission ; for, since the judge is supposed fully to know the law, the advocate, by producing false laws, or false authorities, is not likely to prevail to any pur- pose; and he is never credited upon his bare assertion, but is obliged to produce sufficient proof And, there- fore, if a guilty person do sometimes, by this means, escape unpunished, the fault is not to be charged on the advocate, or on the prisoner, but on the judge, who had not the wisdom to distinguish between right and wrong ! " Immorality so staring and monstrous as this requires no denunciation; and as far, at all events, as these instances go, the student may discard the proffered guidance of either Paley or Puffendorff. It is necessary, however, to take a step very much further than merely abstaining from the false expression of individual opinion; and to lay it down as a rule, never to be departed from except under exceedingly special circumstances, that an advocate should express no personal opinion or belief at all bs to the justice of his client's case, however sincere and strong that opinion may be. To do so, would be, at the very least, an impertinence, emanating from one either grossly igno- rant of, or willfully disregarding, the position, functions and province of an advocate. The exact question to be tried by the jury, under the superintendence of the 204 Introduction to Law Studies. Judge, or by the Court, is the justice or injustice of that client's case; and how can it signify to either court, judge or jury, what is the opinion or behef of that cUent's chosen advocate? It tempts the observation, that he is also the feed advocate of that client; and excites the suspicion, that, if his protestation be very vehement, his fee has been very large; that his judg- ment is biased and warped by various considerations, based on a regard to his own interest and successful rivalry with his opponent. And, again, what has that opponent to say to the matter ? Ought he to allow his client's case to be thus prejudiced ? Is he to enter into that contest in which, to adopt the language of the great Orator of Greece, Victory is more ignomin- ious than defeat? Is he, in self-defense, to asseverate his opinion or belief of the justice of his client's case, and thus the judge, jury, and the public be outraged by the revolting spectacle of two men striving to out- lie each other, and those two men, at that moment, - members of the honorable profession of the Bar? Such a procedure is destructive of the advocate's own sense of truth and moral rectitude, and of fearful ill example. It would as rapidly corrupt the morals of the Bar, as it would draw down on it public scorn and execration. While thus, moreover, deserting his own province, he also invades that of the judge and the jury, to whom he presumptuously offers a spurious element of judgment. How are they to act upon such an idle, and often wicked, declaration ? They can but reject it with contempt and loathing. The distinction, in short, between forensic and judicial functions is Ethics of the Bar. 205 broad and vital ; and that judge who, when a violation of the distinction occurred, did not promptly interpose, and, if need be, strongly rebuke him who was guilty of it, would himself forget his own functions, and com- promise the dignity and authority of his office. A strict and conscientious observance of this cardinal rule, that counsel is neither the witness, nor the judge, but only the advocate of his client, will not only en- hance the dignity and legitimate efficiency of the advocate, giving him great influence with judges, juries, and the public ; but also materially conduce to the due administration of justice. And this leads to an observation of great importance ; that, while the advocate is neither judge nor witness, he is yet to regard himself as not exclusively an advocate, but also " a minister of justice, acting in aid of the judge before whom he practices." These are the weighty words of a late eminent Equity Judge, Lord Langdale ; and the occasion which called them forth, so forcibly illustrates the scope of this higher function of advocacy, that it is fitting briefly to indicate the nature of that occasion, in order to appreciate the duty which counsel may suddenly find imposed upon them by the court. In the case of Hutchinson v. Stephens, a decree had been made at the hearing of the cause ; and, on a subsequent occasion, the court was asked, on the part of the defend- ant, to order the cause to be " advanced," so that its course might be accelerated by hearing it on the next day of short causes. It was alleged, that this ought to be allowed, as what remained to be done was a matter quite of course, and could occupy no longer 18 2o6 Introduction to Law Studies. time than that usually allotted to "short causes." This was opposed by the eminent counsel (Mr. Tinney) for the plaintiff, as an innovation on the practice of the court, introduced by the then Judge. His Lordship interposed with the question, " Can you say, that this cause is not proper to be heard as a short cause ? " Mr. Tinney answered, with commendable caution and candor, that he " was not prepared to say that it was not so," but he " submitted that there was no precedent for the motion," and proceeded to argue that point clearly and ably. The judge again interposed to say, that, " if counsel stated that the cause was not proper to be heard as a short cause, the court relied implicitly upon the honor of counsel, and on such a statement would at once refuse the application." Once more, during the argument, the judge interposed to the same effect : but counsel declined to give the assurance asked for, and preferred " resting his opposition to the motion, on the general practice of the court." On which, the Master of the Rolls at once proceeded to deliver an elaborate judgment — complimenting counsel on the " candor, zeal and ability " which he had exhibited. He vindicated the propriety of the practice he had introduced, and finally granted the application; his decision being afterward upheld, on appeal, by the Lord Chancellor. In the course of his judgment, Lord Langdale thus expressed himself, with equal force and dignity, on the duty of counsel : " With respect to the task which I may be consid- ered to have imposed upon counsel, I wish to observe, that it arises from the confidence which long experience Ethics of the Bar. 207 induces me to repose in them ; and from a sense which I entertain of the truly honorable and important ser- vices they constantly perform as ministers of justice, acting in aid of the judge before whom they practice. No counsel supposes himself to be the mere advocate or agent of his client to gain a victory if he can on a particular occasion. The zeal and the arguments of every counsel, knowing what is due to himself and his honorable profession, are qualified, not only by con- siderations affecting his own character as a man of honor, experience and learning, but also by considera- tions affecting the general interests of justice. It is to these considerations that I apply myself; and I am far from thinking that any counsel who attends here will knowingly violate, or silently permit to be violated, any established rule of the court to promote the pur- poses of any client ; or refuse to afford me the assist- ance which I ask in these cases." Let it be, for a moment, imagined that counsel had, unhappily, so far forgotten himself, and what was due to truth and honor, as to have asserted that the cause was not a proper one to be heard as a short cause ! What would have been his position afterward, when the cause came on in its due turn, and instantly falsified the declaration he had made concerning it ? Here, then, is a case in which the advocate is not seen volunteering his opinion as to the justice of his client's cause, but replying, truthfully, as a man of honor, and at the same time discreetly and cautiously as an advocate, when suddenly appealed to by a judge, in reliance on his sense of honor and duty as a min- 2o8 Introduction to Law Studies. ister of justice to act in aid of the court. Cases of this kind occur perpetually in practice. They present no difficulty to him who has the soul of a gentleman, but may prove so many pitfalls to him who has not ; who, in disgraceful eagerness to oblige his client, and advance the fancied interest of that client at the mo- ment, will answer the judicial appeal recklessly and falsely. What, then, is meant by an advocate's regarding himself as, in any sense, a minister of justice, and acting in aid of the judge ? If he were to forget or disregard his character and duties as an advocate, he would at once betray his client, and impede and dis- turb the very administration of justice itself The court counts on his doing all that he legitimately can on behalf of that client, and placing the facts and the law of the case as favorably for him as the advocate conscientiously can. The judge is naturally presumed to be, and generally is in learning, judgment, and ex- perience, superior to the advocate. This the latter knows; and that, if he err regarding law or fact, the court, having the interests of justice only in view, will set him right; and this operates beneficially on the advocate. Knowing the restraint imposed upon him- self by the conscientious advocate, the judge gives the greater credit to all his statements and reasonings, and forbears from undue pressure, of any kind, on, and even sympathizes with, one evidently dealing candidly, in a difficult position. The judge feels that he has been assisted, as far as ought in reason to be expected from the advocate; and the latter is satisfied with having Ethics of the Bar. 209 done his duty so far, and with his utmost vigor urged every topic that ought to have been urged on behalf of his client. When, in short, upright and able counsel practices publicly before independent, upright and able judges, the best practicable guarantees exist for the satisfactory administration of justice. Each assists and checks the other, as far as is consistent with their re- spective positions. But how can this happy result be attained, where a judge distrusts the advocate, believing, as the fact is, that he will deceive and misrepresent, if he can, and may have constant opportunity, if so basely disposed, of doing this with temporary impunity ? No one suffers more severely than the client employing an unconscientious and disreputable advocate; no client gains more, having all due regard to the inherent diffi- culty of his case, than he who retains an advocate of known and tried integrity and honor. These observations, pace Puffendorff, are applicable with equal force to the case of advocacy in civil and in criminal cases ; for conscience, truth and honor cannot change their nature with the courts in which the duties of advocacy are exercised. While, in all cases, the judi- cial and the forensic functions are to be kept separate and distinct, — it being as unreasonable and absurd to expect the advocate to be a judge, as unseemly to behold the judge converted into the advocate, — there is one case in which the advocate, with no embarrassment from con- flicting duties, but unequivocally, and even exclusively, acts as " a minister of justice, in aid of the judge." This occurs when he is intrusted, on the part of the crown, with criminal prosecutions. He is then required to 18* 210 Introduction to Law Studies. exhibit judicial qualities, so far as to lay the case fairly and fully before the jury ; desirous only to vindicate the interests of public justice, and alike anxious to prevent guilt escaping unpunished, being unduly pun- ished, or unsatisfactorily convicted. The discharge of this duty with dispassionate candor has been rendered one often of considerable difficulty from the effect of a change in our laws, having for its object to secure the most humane consideration for prisoners — that of allowing defense by counsel in cases of felony. When this was not permitted, counsel for the prosecution contented himself, in ordinary cases, with barely prov- ing the facts ; and, in all cases, if he addressed the jury, he confined himself to an exposition of the evi- dence intended to be adduced; aggravating nothing unfavorable, omitting nothing favorable, to the pris- oner, and abstaining from all comment or appeal to the passions. Now, however, he has to anticipate an answer in which every exertion of sophistry and elo- quence is too frequently deemed within the line of duty ; and the prosecuting counsel feels almost com- pelled to appear more anxious than he would wish, if not for a conviction, at all events, to'^ forestall the suggestion of matter obviously favorable to the prisoner. The summing up of the judge, also, becomes almost inevitably more formidable to the prisoner. When nothing had been urged on behalf of that prisoner, the judge suggested all the favorable construction which could be fairly put upon the facts ; but now, when a defense has been already made, it must have Ethics of the Bar. 2 i i been to either a clear or a doubtful case. " A really doubtful case needs," continues a humane and learned author, " no advocate in an English court ; and to a clear one, the defense' must be founded on fallacy. It thus becomes the judge's duty to detect and lay open to the jury that fallacy, and thus, in spite of himself, his superior skill, accuracy and authority — nay, the very weight due to his disinterestedness and impar- tiality — are arrayed against the prisoner." This portion of the subject cannot be more satisfac- torily closed, than by a passage occurring in the judg- ment delivered on a memorable occasion by one of the most eminent occupants of the seat of justice in Ireland ; and who, while these pages are passing through the press, has resigned that seat, after a lengthened ten- ure of it, amidst universal demonstrations of respect among those who have witnessed his distinguished services. The passage now quoted was called to the author's attention by the Lord Chancellor of Ireland (Mr. Napier), who rightly styles it, " as wise as elo- quent." " The court in which we sit is a temple of justice ; and the advocate at the bar as well as the judge upon the bench are equally ministers in that temple. The object of all, equally, should be the attainment of justice. Now justice is only to be reached through the ascertainment of the truth ; and the instrument which law presents to us for the ascertainment of the truth or falsehood of a criminal charge is the Trial by jury. The trial is the process by which we endeavor to find out the truth. Slow, laborious, perplexed and 212 Introduction to Law Studies. doubtful in its issue that pursuit often proves ; but we are all — judges, jurors, advocates and attorneys — together concerned in this search for truth. The pursuit is a noble one, and those are honored who are the instruments engaged in it. The infirmity of human nature and the strength of human passion may lead us to take false views, and sometimes to embarrass and retard, rather than to assist in attaining the great object. The temperament, the imagination and the feelings may all mislead us in the chase; but let us never forget our high vocation as ministers of justice and interpreters of the law. Let us never forget that the' advancement of justice and the ascertainment of truth are higher objects and nobler results, than any which, in this place, we can propose to ourselves. Let us never forget the Christian maxim, 'That we should not do evil that good may come of it.' I would say to the advocate, upon this subject : Let your zeal be as warm as your heart's blood, but let it be tempered with discretion and with self-respect; let your inde- pendence be firm and uncompromising, but chastened by personal humility ; let your love of liberty amount to a passion, but let it not appear to be a cloak for maliciousness. "Another doctrine, broached by another eminent counsel, I cannot pass by without comment. That learned counsel described the advocate as the mere mouth-piece of his client ; he told us that the speech of the counsel was to be taken as that of the client ; and thence seemed to conclude, that the client only was answerable for its language and sentiments. Ethics of the Bar. 213 " Such, I do conceive, is not the office of an advocate. His office is a higher one. To consider him in that light is to degrade him. I would say of him as I would say of a member of the House of Commons — he is a representative, but not a delegate. He gives to his client the benefit of his learning, his talents and his judgment; but, all through, he never forgets what he owes to himself and to others. He will not know- ingly misstate the law — he will not willfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind, that, if he be the advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice ; and there is no crown, or other license, which, in any case, or for any party or purpose, can discharge him from that primary and paramount retainer." While there is, and ought ever to be, maintained intact, the distinction between the judicial and forensic office — the object of the judge being solely to guard the interests of justice, and that of the advocate, sub- ject to the condition already noticed, to further those of his client — another important question may be asked : What is the position, and what are the rights, of an advocate, at the moment of his professional ser- vices being required by one of the public ; having held himself out to that public as one qualified and ready to afford those services? According to the opinion of Lord Nottingham, in a passage cited from his MSS. by Mr. Hargrave, " a counselor at law is not compella- ble to be counselor, which is the reason why he can- 214 Introduction to Law Studies. not bring an action; and his fee is honorarium, and not a debt." Is it then, or is it not, purely optional whether, if not engaged by the opposite side, he will undertake any case offered to him ? If, on the one hand, he is still to be regarded as a free agent, so, on the other, he must not forget that he has been invested by the public, at his own instance, with important and valua- ble rights and privileges — of being alone allowed to plead for others in the superior courts, and that with an absolute immunity from legal liability for negligence or otherwise, and he is also alone eligible for numerous lucrative and most honorable appointments. What, however, is his right, or rather his duty, when his con- science has become concerned — as to the propriety of undertaking, or proceeding further with, a particu- lar case, which, in his judgment, is unconscientious and even fraudulent ? May he, or may he not, say : " Sir, I will not be your agent to commit that which I consider a fraud ? " Surely, if he be a free agent, he has this right, and it is his duty to exercise it. But then arises the question, whether he does not thereby constitute himself a judge of the merits of that case, laid before him ex parte, one side of which he is required only to advocate, and that consistently with the rules of law ? Is he not here confounding the forensic and the judicial provinces? The question, apparently a plain one, is not without its difficulties, both theoretical and practical. Let us see how it was dealt with by a distinguished lawyer more than two centuries ago (A. D. 1615), Sir John Davys, in the masterly " Preface Ethics of the Bar. 215 Dedicatory" to Lord Chancellor EUesmere, prefixed to his "Reports." "There is yet," he says, "another exception against the professors of our law, namely, that, wittingly and willingly, they take upon them the defense of many bad cases, knowing the same to be unjust, when they are first consulted with and retained; and this is objected, by such as presume to censure our profession, in this manner : ' In every cause be- tween party and party,' say they, 'there is a right, and there is a wrong ; yet neither the one party nor the other did ever want a counselor to maintain his cause.' This may be true, for the most part; and yet, in truth, the learned counsel, whose fortune it is to light on the wrong side, may be free from imputation of any blame. For when doth the right or wrong in every case appear ? When is that distinguished and made mani- fest ? Can it be discovered upon the first commence- ment of the suit, and before it be known what can be alleged and proved by either party? Assuredly it cannot ; and therefore the counselor, when he is first retained, cannot possibly judge of the cause, whether it be just or unjust; because he hears only one part of the matter, and that, also, he receives by information from his client, who doth ever put the case with the best advantage for himself But when the parties have pleaded, and are at issue ; when they have examined witnesses in courts of equity, and be descended to a trial in course of law ; after publication and hearing in the one case and full evidence delivered in the other ; then the learned counsel of either side may perhaps discern the right from the wrong, and not before. But 2i6 Introduction to Law Studies. then are the causes come to their catastrophe, and the counselors act their last part; and yet, until then, the true state of the cause on both sides could not possibly be discovered. " If, then, the causes that are prosecuted do, for the most part, hang in a doubtful balance, until the hearing or trial thereof (for if a cause be undoubtedly and apparently nought on the one side, no man is [com- monly] so unwise as to follow it to the end, with the expense of money and hazard of his credit) ; how can it be justly said, that the counselor, against whose client a decree or verdict doth pass, hath wittingly defended an unjust cause, when he wist not how the balance would incline, until he had made his uttermost defense ? Howbeit, if any of our counselors do, either in the prosecution of their clients' causes, give sinister and crafty counsel, or upon the hearing or trial thereof make an over bold defense of any dis- honest action, our judges are so tender and jealous of the honor of our profession, that they lay a note of in- famy upon such persons, so as they seldom or never are permitted to rise to any higher degree in the law, or any office of trust in the commonwealth. Whereby it Cometh to pass, that no men, of any other calling or profession whatsoever, are more careful to preserve their good name and reputation, and stand more pre- cisely upon their good behavior, than the learned pro- fessors of the Common Law. And as our judges do discountenance bad counselors, so doth our law abhor the defense and maintenance of bad causes more than any other law in the world besides. . . . But good Ethics of the Bar. 217 lawyers have not, with us, that liberty which good phy- sicians have ; for a good physician may lawfully un- dertake the cure of a foul and desperate disease ; but a good lawyer cannot honestly undertake the defense of a foul and desperate cause. But if he be fortuned to be engaged in a cause which, seeming honest in the beginning, doth, in the proce.eding, appear to be unjust, he followeth the good counsel of the schoolman, Thomas Aquinas : Advocatus, si hi principio credidit causam j'ustam esse, et postea, in processu appareat earn esse injustam, non debet earn prodere, ut scilicet aliam partem j'uvet, vel secreta sum causcz alteri parti revelet. Potest tamen et debet, causam deserere vel eum, cujus causam agit ad adendum, induce re sive adversarii damno." This clear and vigorous, yet carefully guarded, exposition of forensic duties would undoubtedly be accepted by the Bar of England at the present day. They place their best professional services at the com- mand of the community, without regard to, or excep- tion of, rank or station ; and, moreover, are bound to consider the grave consequences which might ensue on arbitrary refusal to undertake the advocacy of any case properly offered to them. This point cannot be better illustrated than by a celebrated and splendid passage- in a speech of Lord Erskine, when at the Bar. He had been retained to defend the infamous Thomas Paine, for a seditious libel contained in the second part of his "Rights of Man;" and appears to have beea subjected to very severe strictures, for appearing toi defend a man so justly odious, and a book worthy of 19 2i8 Introduction to Law Studies. proceeding from only such a man. The great advocate thus referred to the strictures in question, and, in doing so, gave utterance, in words of equal weight and elo- quence, to the passage which has ever since been ap- pealed to as a noble vindication of the general rights of advocacy. " But, with regard to myself, every man within hear- ing at this moment — nay, the whole people of Eng- land — have been witnesses to the calumnious clamor which, by every art, has been raised and kept against me. In every place where business or pleasure collects the public together, day after day, my name and char- acter have been the topics of injurious reflection. And for what ? — only for not having shrunk from the dis- charge of a duty which no personal advantage recom- mended, and which a thousand difficulties repelled. But, gentlemen, I have no complaint to make against the printers of those libels, nor even against their authors. The greater part of them, hurried, perhaps, away by honest prejudices, may have believed they were serving their country by rendering me the object of its suspicion and contempt; and if there have been among them, others who have mixed in it from personal malice and unkindness, I thank God I can forgive them also. Little, indeed, did they know me who thought that such calumnies would influence my conduct, I WILL FOREVER, AT ALL HAZARDS, ASSERT THE DIG- NITY, INDEPENDENCE AND INTEGRITY OF THE ENG- LISH BAR; WITHOUT WHICH, IMPARTIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISH CON- STITUTION, CAN HAVE NO EXISTENCE. From the Ethics of the Bar. 219 moment that any advocate can be permitted to say, that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment, the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge, or of the defense, he assumes the character of the judge ; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of, perhaps, a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which com- mands the very judge to be his counsel." Without attempting to lay down general rules for the guidance of counsel, who must be left, in each case, to the dictates of their own conscience and honor, it may safely be represented as the rule of professional duty, that if, on a first deliberate perusal and examina- tion of his case, an advocate clearly discern it to be such as a man of honor and conscience ought not to advocate ; if it unequivocally disclose to his practiced eye the presence of fraud, perjury, or wickedness of any description, he should indignantly decline to pros- titute his powers, degrade his position, and abuse his opportunities, by furthering, in any way, that wicked- ness. He is not, however, to fall into a sort of moral squeamishness and suspiciousness, assuming that to be dishonest, which, on a very little explanation, may prove to be altogether the reverse. He is to suspend his judgment; to remember, and realize to himself, his. proper representative duties; presuming in favor of 220 Introduction to Law Studies. his client, and of the rectitude of the case which that cHent undertakes the responsibility of submitting to public judicial investigation. On the other hand is conceivable, the case of a willful blindness to the true character and features of a case, in either first under- taking, or continuing to prosecute it. It may, never- theless, ultimately prove that, by yielding only faint- hearted and grudging service to a precipitately and unjustly suspected client, his interests have been cruelly sacrificed ; together with the cause of truth and justice with which they were really identified, — had his unworthy advocate but possessed sufficient moral and mental strength, and clearness of vision to perceive it. In conformity with the principles thus enumerated, no member of the English Bar considers himself at liberty to refuse his best, but conscientious, professional services, when required to defend a prisoner, however vile his previous character, or detestable the offense laid to his charge. His right to a fair trial, and to be convicted only in exact conformity with the laws, is recognized universally. While, however, an Erskine defended, to the utmost of his splendid powers, a Thomas Paine, Cicero, it seems, would have refused to do so. He has thus expressed himself in his " Offices." After laying it down as a paramount duty never to abuse the noble gift of eloquence, in order to procure the condemnation of the innocent, he proceeds to say, that the advocate must, nevertheless, not carry his scruples so far as to decline to defend a guilty person, provided he be not a wretch utterly abandoned : " nee tamen, ut hoc fugiendum est, ita habendum est religi- Ethics of the Bar. 221 oni, nocentem aliquando, modo ne nefarium impiumque defendere. Vult hoc multitude, patitur consuetudo, fert etiam humanitas." Nay, he goes so far as to allow in such a case, though with manifest misgivings, a depart- ure from his own rules of morality. "It is the judge's duty," he says, "in trying causes, always to aim at the truth; an advocate may sometimes, in his defense, urge that which is like the truth, even though it be nat strictly the truth (patroni, nonnunquam verisimile, etiam si minus sit verum, defendere); a proposition which I should not have ventured to lay down, above all things, when writing on philosophy, if it had not met the sanction of the eminent Stoic, Panartius." The Emperor Justinian required the advocates of his day, at the beginning of every cause in which they were concerned, to take an oath, which, though strin- gent and comprehensive in its terms, was yet so plainly consistent with the requirements of honor and morality, that no conscientious advocate could have fairly de- murred to it ; nor ought any man of honor at the Bar to do so in the present day. The edict prescribing the oath, and the course to be taken in the contingencies providently specified, is so interesting and suggestive, that it is here given at length : "Patroni autem causarum, qui utrique parti suum praestantes auxilium ingrediuntur, cum lis fuerit con- testata, post narrationem propositam, et contradictionem objectam, in qualicumque judicio, majore, vel minore, vel apud arbitros, sive ex compromisso, sive aliter datos, vel electos, sacro Sanctis evangeliis tactis, jura- mentum praestent. 19* 222 Introduction to Law Studies. Quod omni quidem virtute, sua omnique ope, quod verum et justum existimaverint, clientibus suis inferre procurabunt : ' Nihil studii relinquentes, quod sibi possibile est : 'Non autem credita s.ibi causa cognita, quod improba sit, vel penitus desperata, et ex mendacibus allegation- ibus composita, ipsi scientes prudentesque mala con- scientia liti patrocinabuntur : 'Sed et si, certamine prosedente, aliquid tale sibi cognitum fuerit, a causa recedent, ab hujusmodi com- munione sese penitus separantes.' " Hocque subsecuto, nulla licentia concedatur spreto litigatori, ad alterius advocati patrocinium convolare : ne melioribus contemtis, improba advocatio subrogetur, quidam sin autem pluribus patronis adhibitis, et jura- mento ab omnibus prsestito, ex his causa procedent, patrocinandum esse crediderint, quidam recusaverint: exeant quidem recusantes ; volentes autem rem aneant ; causa etenim terminus manifestare poterit, qui timidius, quique audacious, judicium vel reliquerunt, vel protule- runt : nee in hac parte litigatoribus danda licentia, alios pro recusantibus subrogare." Such formal securities are not taken from the mem- bers of the English Bar, though sergeants at law have been immemorially, and continue to be, sworn to do their duty to their clients. Their oath runs thus : "You shall swear well and truly to serve the King's people, as one of the Sergeants at Law ; and you shall truly counsel them, that you be retained with, after your cunning; and you shall not defer or delay their causes, willingly, for covetise of money, or other thing Ethics of the Bar. 223 that may turn you to profit ; and you shall give true attendance accordingly. So help you God." Lord Coke expressly tells us, that, as has been seen, "the apprentice at law," that is, the mere barrister, " is not sworn." The reason for this distinction may be, the official and quasi judicial functions formerly exercised by sergeants, from whose ranks exclusively the judges were taken for ages, and continue still to be, in point of form. Sergeants were, moreover, asso- ciated in the Circuit Commissions, civil as well as criminal ; and were the only assistants competent to try civil causes in the event of assistance being required during the illness of, or overpressure of business upon, the judge. The sergeants had pre-eminence and exclusive audience ; had to attend the Parliament ; were " Triers " of petitions, and so forth ; and certain persons could be compelled, by writ, to assume the onerous rank of sergeant, on pain of heavy fines. Unsworn, in fact, however, though the Bar at large may be, is there not tacitly exacted, and given, a sol- emn pledge, to act in conformity with the principles and dictates of strict honor and integrity ? " Albeit," says Lord Coke, speaking of the oath of allegiance, " many persons never take the said oath, yet are all subjects, of what quality, profession, or sex soever, as firmly bounden to their allegiance, as if they had taken the oath ; because it is written by the finger of the law in every one of their hearts; and the taking of the corporal oath is butan outward declaration of the same." Is it not entirely thus with allegiance to The Law, — that law which is based upon the law of our Al- 224 Introduction to Law Studies. mighty Maker and Judge ? Would admission to the honorable rank of barrister-at-law be tolerated in one who demurred to give, if required, such a pledge ? What then would become of " The Honor of the Bar?" That the law has, in all time, left a matter of such moment to the honor of every individual,. is of itself a fact pregnant with significance. It argues well for the credit of the Bar, that this has so long continued to be the case; and also silently indicates the existence of that stern tribunal of Professional Opinion, from whose rebuke the boldest offenders may shrink with apprehension. There is, however, one instance of legislative inter- ference of this description ; but it has stood a solitary one for nearly six centurfes. In the year A. D. 1275, — that is in the third year of " our English Justinian," Edward I, — he found it necessary to call for the inter- ference of the legislature, " because," Lord Coke tells us, "sergeants, apprentices, attornies, clerks of the King's Courts, and others, did practice and put in use unlawful shifts and devices, so cunningly contrived (and especially in the cases of great men) in deceit of the King's Courts, as oftentimes the judges of the same were, by such crafty and sinister shifts and prac- tices, inveigled and beguiled, which was against the common law; and therefore this act was made in affirmance of the common law ; only it added a greater punishment." Here follows the statute in question, with its pithy title, "The Penalty of a Sergeant, or other, Committing Deceit : " Ethics of the Bar. 225 "If any Sergeant, Pleader, or other, do any manner of deceit or collusion in the King's Court, or consent unto it, in deceit of the court, or to beguile the court, or the party, and thereof be attainted, he shall be imprisoned for a year and a day, and from thenceforth shall not be heard to plead in court for any man. And if he be no Pleader, he shall be imprisoned in like manner by the space of a year and a day at least ; and if the trespass require greater punishment, it shall be at the King's pleasure." "This punishment," says Blackstone, "is still some- times inflicted for gross misdemeanors in practice ;" and he refers to a reported case which occurred so Ipng ago as the year 1680, and is in this wise: A certain Mr. Nathaniel Redding, who had formerly practiced at the Bar, had been convicted before justices of Oyer and Terminer, by virtue of a special commission, for en- deavoring to persuade a witness against the noblemen imprisoned in the Tower, to forbear his prosecution of them. For this offense, Mr. Redding was set in the pillory and fined one thousand pounds, with imprison- ment till it was paid. The King (Charles II) remitted his fine; and when discharged, he came into court, requiring an Information, at his suit, to be filed against the Commissioners who had condemned him; "of whom," says the reporter (who was afterward success- ively a judge in each of the three superior courts), "my brothers Jones and Dolben were two." The court declared him incompetent to do so, and caused his words, accusing the two judges of oppression, to be recorded; and then, "for having uttered those 226 Introduction to Law Studies. words, and having also become infamous by standing on the pillory, the gentlemen at the Bar did pray that his gown might be pulled over his ears ; which was ordered and executed in court ; and he was also con- demned, in court, to pay the King a fine of five hun- dred pounds, and be imprisoned till he paid it." This case has been presented to the reader, because of the singularity of its circumstances. It appears to be also the only instance recorded in our books of misconduct by a member of the Bar, judicially cogni- zable and punished, because of his being such ; a fact of itself eloquently significant. In addition to the power of severe and summary dealing by the superior courts with delinquent members of the Bar, and that stern tribunal already referred to, of the Public Opinion of that Bar, it should be observed, that such matters, when of sufficient gravity, are dealt with efficiently by those " Domestic Forums," constituted by the benchers of the four Inns of Court. "The societies," say the Inns of Court Commissioners, ■"possess, and have on several recent occasions exer- cised, the power of ' disbarring,' or visiting with other •severe penalties, after due inquiry, any person who has properly deserved such reprobation ; their decision, in this respect, being subject to an appeal to the judges. We are of opinion that these precautions have been generally sufficient to prevent any injurious effect on the community, with respect to moral impropriety or misconduct in barristers." Passing away, however, from the contemplation of such delinquency, in any advocate, as challenges public Ethics of the Bar. 227 and official cognizance, let the consideration of forensic duty be resumed. It has been seen, that while the advocate has closely at heart the promotion of his client's interests, he must, at the same time, regard himself as an assistant of the court, in administering that justice which is of vital concern to the whole community; not trespassing, however, on the judicial province, by either com- mitting himself to the public expression of a personal opinion, or constituting himself, in the first instance, the judge or witness, instead of the advocate, of his client. Looked at from any point of view, the functions of advocacy exhibit a grave aspect of difficulty to one who would exercise them with honor ; and of real and great danger to one indifferent to such a consideration; who is not desirous, at all times, and under all circum- stances, to act conscientiously, according to his convic- tion of what is right in the sight of God, as well as calculated to secure the respect and confidence of the wise and good among men. There are cases in which, as it has been attempted to show, the line of duty is clear, and there may be many others in which, without careful consideration, it is indistinct. Of the former are such as these: An advocate is aware that the reported decision of A v. B is exactly in his favor, and will secure him the judg- ment of the court ; but he is also aware that A v. B has been directly and properly overruled by a subse- quent case of C v. D. Thinking it probable that he may do so with impunity, will he dare to cite A v, B as existing law, making no allusion to C v. D ? 228 Introduction to Law Studies. Or will he cite a statute as in force, which he knows has been repealed by a subsequent one ? Will he, in either instance, strive to reconcile to his conscience such an act of infamy, by the vile pretext that it is the judge's duty to know the law, and counsel's to serve his client ? If, again, dealing with questions of fact, he is pre- senting to the court a mass of affidavits or correspond- ence ; and is aware of a distinct, unequivocal admission by his client, in one of these documents, destructive of his whole case, but that it is likely to be overlooked by the court, or his opponent, owing to the pressure of business, or other causes; will he suppress that admission, divert attention from it by every artifice in his power, and reason as though there were no such admission ? And this, on the vile plea, that " he had read his papers and done his duty to his client, and it was no fault of his, if his opponent had not ? " If any member of the Bar, at the present day, would venture to avow that he could thus act, and would so act, "the gentlemen of the Bar" would do as their predecessors did in 1680, "pray that his gown might be pulled over his ears," which would probably be ■"ordered and executed in court." Cases of immoral- ity and fraud so revolting as this need not be seriously considered by any one who knows what law is, and what a lawyer ought to be ; who forgets not that he also is a Christian man. Such an one. however, may well ask himself, if that calling or walk in life be not a perilous one, in which its occupants are from year to year, from day to day, from hour to hour, fencing with Ethics of the Bar. 229 Truth and dallying with Falsehood ? Slipping easily, and at will, at the instance of urgent considerations, — of rivalry, and a desire to promote his own reputation as a successful advocate, — from one to the other of their conterminous provinces, as it may suit the exi- gencies of the moment ; familiar, not with the Verum, but the Verisimile, etiam si menus sit verum ? Alas, is it not, in the language of Thomas Aquinas and Jer- emy Taylor, " All one, if a man lies, whether it be by word or by deed ; " and true, that " a man may look a lie, nod a lie, and smile a lie ? " Is not such a man constantly playing with edge tools ? "The man," well observes Archbishop Whately, " who, having to plead various causes, is called upon to extenuate to-day, what he aggravated yesterday ; to attach more and less weight, at different times, to the same kind of evidence ; to impugn, and to enforce, the same principles, according as the interests of his clients may require, is specially liable, unless the tend- ency be sedulously guarded against, to have his mind alienated from the investigation of Truth. He is per- petually considering only what may be plausibly urged on both sides ; while the question, what ought to be the decision, is out of his province." " I am supposing them," continues the Archbishop, " not to be seeking to mislead a judge or jury by urging fallacious argu- ments ; but there will often be sound and valid ar- guments, real probabilities, on opposite sides. A judge, or any one whose business is to ascertain truth, is to decide according to the preponderance of the reasons ; but the advocate's business is merely to set 20 230 Introduction to Law Studies. forth, as forcibly as possible, those on his own side ; and, if he thinks that the habitual practice of this has no tendency to generate in him, morally, any indiffer- ence, or intellectually, any incompetency, in respect of the ascertainment of truth, — if he consider himself quite safe from any such danger, I should then say he is in very great danger. In danger, — of what ? Of contracting a fatal indifference to truth ; an increasing satisfaction in successfully disguising, distorting, coun- terfeiting that truth ; in contemplating only to evade it ; and striving so skillfully to intermingle falsehood with it, that he cannot himself, at length, distinguish or separate them. He has deceived others so long, that he has at length debased and corrupted his own inner self; and lived, as though it had never been enjoined on his creatures by the God of truth. Let your communication be. Yea, yea; Nay, nay; for whatsoever is more than these, cometh of evil. Is he, alas, content to set before himself, as a model, during his whole life-time, Belial, the dazzling fallen one, of whom we are told that — " He seemed To dignity composed, and. high exploit ; But all was false and hollow ; though his tongue Dropp'd manna, and could make the worse appear The better reason, to perplex and dash Maturest counsels ; for his thoughts were low ; To vice industrious, but to nobler deeds, Timorous and slothful; yet he pleas'd the ear." About a century ago, that is, on the 13th Novem- ber, 175s, after having sat scarce a year in parliament, a young man, in his twenty-seventh year, rose and delivered a speech so splendid, that it dazzled and Ethics of the Bar. 231 electrified the House. " Then," says Horace Walpole, giving an account of the debate in which this occurred, " there was a young Mr. Hamilton, who spoke for the first time, and was at once perfection." This proved to be his only oratorical effort of consequence ; a cir- cumstance which has ever since caused him to be known as " single speech Hamilton ; " but his biogra- pher tells us, that, for forty years of a parliamentary life, this gifted gentleman devoted almost all his leisure and his thought to the examination and discussion of all the principal questions agitated in parliament, and the several topics and modes of reasoning by which they were either supported or opposed. The results he gathered up into a tract, now very scarce, entitled " Parliamentary Logic, by the Right Honorable Wil- liam Gerrard Hamilton," " in which," says the admiring editor of it, "we have the results and experience of one who was by no means unconversant with law. In the rules and precepts here accumulated, which are equally adapted to the use of the advocate and the orator, nothing vague or loose is delivered; and the most minute particulars and artful turns of debate and argument are noticed with admirable acuteness, subtlety and precision. The work is filled with practi- cal axioms, and parliamentary and forensic wisdom; and cannot but be of perpetual use to all who may have occasion to exercise their discursive talents within or without the doors of the House of Commons ; in conversation; at the Bar; or in Parliament." This may have been the opinion of the editor; but the worth of that opinion, the conscientious student shall 232 Introduction to Law Studies. have an opportunity of estimating. Will he regard as fragrant or as noisome the odor of the very flowers of falsehood and fraud which shall now be exhibited to him ? " You know the consequences you want ; find the principle to justify them. " Every question has some parts better than others; separate these in your mind, and suppress one, and color the other, as it suits. " State the question to be proved, and the arguments made use of to prove it. By coloring one, and soften- ing the other, you will gain an advantage. " When you cannot convince, a heap of comparisons will dazzle. " It is an art to make use of what is doubtful as an unquestionable maxim, and to argue from a single case as if it were a maxim. "In the wrong, use comprehensive and general — because they are equivocal — expressions ; and multi- ply divisions and distinctions without end. " If you have no argument to object to, object to a word. "When you cannot resist, then wit, fancy, subtlety and craft are of service. " If the whole of a question is against you, speak to a part, as if it were the whole. "State, as may answer the purpose, your argument so narrow as to cripple reason, or so wide as to con- found it. " By speaking of events in the order they did not happen, you may change not only the appearance but the nature of them. Ethics of the Bar, 233 " If the principal thing in question is strongly against you, consider what is the thing of the greatest import- ance, and the most likely to please, that makes for you. Dwell upon that, and touch the first only slightly. To pass over entirely what is most material would be too gross. " It seldom happens but that some one person, in a debate, asserts something so extravagant, that it is ridiculous and untenable. You may easily man- age to treat this as the argument of all who have spoken. "Answer seriousness with ridicule, and ridiculous- ness seriously. "Either overrate and aggravate what is asserted against you, and then you will be able to show that it is not true ; or underrate it, and then admit it in a degree, and with an apology. " If you cannot perplex the argument at the outset, contrive to change the question, by introducing some- thing that is similar to it, in the progress. " Consider if a word has not different significations, and if you may not use it advantageously, sometimes in one sense,' sometimes in another; and watch this artifice in others. "It is an artifice to be used (but if used by others to be detected) to begin some personality, or to throw in something that may bring on a personal altercation, and draw off the attention of the House from the main points. "Circumlocution is useful, if you wish to deceive, but not otherwise. 20* 234 Introduction to Law Stubies. "If your cause is too bad, call in aid the party. If the party is bad, call in aid the cause. If neither be good, wound the opponent. "State (with the air of a candid admission), as the strongest parts of the argument against you, what you are sure you can answer." If casuistry may be regarded, with Kant, as consti- tuting "the dialectics of conscience," surely the fore- going precepts, if designed to be delivered and accepted seriously and practically as such, may be stigmatized as exhibiting samples of the logic of lying, audaciously designed, at once to corrupt the speakers and deceive the audience in the chambers of legislation and the halls of justice — those who make and those who administer the law. Why, it may be asked, have they been brought under the eye of the youthful student and advocate ? Assuredly not that he may adopt such vile artifices, but eschew, reprobate and be on his guard against them when practiced by others ; that a man of honor and conscience may be forewarned, and therefore forearmed, against an unscrupulous and reckless antag- onist. On being told by Boswell, that Archbishop Laud had heard Charles I, when Prince Charles, say, that, had he been obliged to take any particular profession of life, he could not have been a lawyer, because " I cannot," saith he, "defend a bad nor yield a right cause," Dr. Johnson replied : " Sir, this is false rea- soning, because every cause has a bad side; and a lawyer is not overcome, though the cause which he has endeavored to support be determined against him." Ethics of the Bar. 235 The reader of the foregoing pages may be reminded, that every cause has also its good side — good in real- ity, as well as in appearance ; and consequently resisted, if at all, wrongfully. Administered as law is in this country, in the face of day, from the beginning to the end of every cause, before learned, upright and inde- pendent judges and honest juries, with almost every security which the experience and sagacity of ages can devise, to secure the triumph of truth, and rectify mis- carriage, in seeking to vindicate and enforce The Right — it is surely a fair presu-mption, that neither civil nor criminal proceedings would be instituted, or persisted in, without a real or a strong show of right. They are frequently involved in great doubt and difficulty, from the very nature of the transactions giving rise to them, and the astuteness and determination with which each litigant naturally supports his own interest. There, consequently, always have been, and always will be, abundant opportunities for the exercise of the highest forensic ability, guided by the strictest consci- entiousness. The advocate need not resort to soph- istry, nor yield to the temptation of willfully misleading, as to either law or fact, any tribunal before which he pleads. A good cause may be badly advocated, either jesuitically, — or erroneously, from some deficiency of knowledge, or of skill in reasoning; must not an advocate be allowed to detect the fallacy and error of his opponent's reasonings ? On the other hand, a bad cause may happen to be capable of support by sound argument ; and here, again, we are compelled to revert to the original difficulty, with the solution of it pro- 236 Introduction to Law Studies. posed ; the advocacy of a cause known or believed by the advocate to be unjust, — and the preservation intact of judicial and forensic functions. Let the sub- ject be brought to a close with the recorded opinions of our great moralist, Dr. Johnson : "What do you think," he was asked, " of supporting a cause which you know to be bad ? " " Sir," he replied, in a passage which must be received with the qualifications insisted on in the foregoing pages, " you do not know it to be bad, till the judge has determined it. You are to state facts fairly, so that your thinking, or what you call ' knowing,' a cause to be bad, must be from reasoning — from your supposing your argu- ments to be weak and inconclusive. But, sir, that is not enough. An argument which does not convince yourself, may convince the judge to whom you urge it ; and if it do convince him, why then, sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion, that a cause is bad, but to say all you can for your client, and then hear the judge's opinion." On another occasion. Sir William Forbes said to Dr. Johnson, that " he thought an honest lawyer should never undertake a cause which he was satisfied was not a just one." "Sir," said Johnson, "the justice or injustice of the cause is to be decided by the judge. Consider what is the purpose of courts of justice. It is, that every man may have his cause fairly tried by men appointed to try causes. A lawyer is not to tell what he knows to be a lie ; he is not to produce what he knows to be a false deed ; but he is not to usurp Ethics of the Bar. 237 the province of the jury and of the judge, and deter- mine what shall be the effect of evidence — what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community who, by study and experience, have acquired the art and power of arranging evidence and of applying to the point at issue what the law has willed. A lawyer is to do for his client all that his client might fatr/j do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adversary, it is an advantage to which he is entitled. There must always be some advantage on one side or the other ; and it is better that advantage should be had by talent than by chance. If lawyers were to undertake no causes till sure that they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just one." Let it now be attempted to recapitulate, and in few words, the leading points of legitimate, honorable aSU virtuous advocacy. There are two grounds of a practical nature, on which a high' order of advocacy is to be encouraged. First, in respect of the interest of the client himself It is proper that the strong points of his case should be brought out and presented most favorably. This constitutes an important check on the judge, and exercises a direct and salutary influence on the admin- istration of justice itself An upright, learned, and even very astute judge, might miss the merits of a 238 Introduction to Law Studies. case, if not presented with the aid of the highest pro- fessional skill — especially having regard to the refined and complicated system of jurisprudence with which he has to deal. Secondly: Advocacy benefits the public by the saving of judicial time which it effects, thereby abridg- ing and economizing State expenditure. Any com- petent observer of a court of justice, who has witnessed the scenes occurring when a client pleads his own cause, must have had the truth of these observations absolutely forced upon his notice ; seeing judicial time wasted, and patience exhausted, while yet the true merits of the case are inadequately touched, if touched at all. What is the result of establishing those local courts, the prominent object of which was to enable the parties themselves to conduct and plead their own causes ? That those duties are, nevertheless, almost universally discharged by advocates, under whatever name, and who are in constant practice. The same truth, indeed, is illustrated by the case of an uneduca- ted advocate ; whose zeal may have secured him prac- tice up to a certain point, at which his inaptitude is developed in spite of himself; and, to his own aston- ishment, but not that of others, his practice disappears. To insure, then, a high order of advocacy, the advo- cate must be a virtuous man ; possessing, and always acting on, fixed principles of morality and religion. He must ever remember, that the object of admin- istering law is the promotion of truth and justice ; law itself being founded on the law of God; and the advocate having hereafter to answer to God for uncon- Ethics of the Bar. 239 scientious advocacy, equally with -the guilty client who engaged that advocacy. It is, indeed, a very awful subject of reflection, what sort of retrospect of life may, in or toward his last moments, be that of the most brilliant and successful of advocates, who has despised or always neglected these considerations, " I have been concerned in several thousand cases ; I have triumphed in very many of them solely by reason of my superior dexterity, where I knew I ought to have failed, but where I succeeded in making the worse appear the better reason; and thereby inflicted wrong, often grievous and fatal, on so many helpless and suffering victims of my perverse and sordid ingenuity. The produce of a life's lying is, however, safely and ad- vantageously invested, and will be enjoyed by my descendants." The virtuous advocate is to regard himself as identi- fied, as far as honorably may be, with his client ; enti- tled and bound to exercise, on his behalf, every right which that client would be entitled to exercise ; subject always to the restraint properly imposed on the advo- cate, in respect of his superior knowledge. He is not to consider himself merely as identified with his client, but as also an assistant in the adminis- tration of justice ; having duties to discharge to the judge, as well as to the client. Being thus identified with his client, he must regard his own lips as those of his client; and hold himself, consequently, forbidden to utter his own individual opinion or belief as to the justice of that client's case. He must not do so on any pretense, or any occasion. 240 Introbuction to Law Studies. unless properly appealed to by the judge. Even on such an appeal, a counsel is not to be pressed, except under special circumstances, as to his private opinion on a case, nor further, than whether he considers it fairly arguable ; for doing so, would be, in effect, in- viting him to depart from his own province, in order to trespass on that of a witness or a judge. Nor is the advocate to convert himself from the advocate into the judge of his own client, who has engaged his services as advocate alone. By thus pre- maturely and gratuitously expressing his own opinion against the merits of his client's case, he is forestalling and superseding the functions of the very tribunal to which he is engaged to appeal. There may be causes in which the iniquity is so pal- pable, as to justify and require a refusal to undertake, or proceed further with, the advocacy of it. Mere suspicion, nevertheless, however violent, will not justify such a course; though it should engender extreme caution in every stage of the case. Let counsel, again, before urging submission, compromise, or arbitration, thoroughly and suspiciously sift his own motives ; so as to satisfy himself that he is acting from due consid- eration of the interests of his clients, and of justice, and not from a desire to enhance his own gains by setting himself, after having been requited for services only partially performed, sooner at liberty to proceed with other lucrative employment, or to promote his own ease and pleasure by causing the earlier termina- tion of wearisome sittings, on the anxiously desired approach of vacation ! Ethics of the Bar. 241 For the rest, an advocate must be left to the exercise of his own discretion, guided by an enlightened con- science, and restrained by deference to the opinions of a watchful and honorable profession. Rigorous fidelity to his client is consistent with that mingled candor and caution, which secure to the advocate confidence and respect on the part of opponents and of the judge, thereby infinitely enhancing the efficacy and value of his advocacy. A personal sense of honor should ren- der it as impossible for him to deceive or trick an antagonist, as for the court itself so to deal with any one before it. And how can an advocate outrage public decency, and bring down public execration on his order, by seeking to alarm, mislead and bewilder an honest wit- ness, for the purpose of throwing unjust discredit on his testimony, or perverting the effect of it ? Is thus dealing with the living Instruments of Evidence, far removed in turpitude from, though surpassing in au- dactity, the secret falsification of written Instruments of Evidence? How, again, will the honorable and conscientious advocate deal with one critical class of witnesses, the parties themselves ; giving evidence in their own favor, pressing heedlessly, desperately, on to the fearful brink of perjury, in furtherance and defense of their imper- illed interests ? Will he, with wise caution, restrain, or, eager for victory, stimulate them, and thereby become their accomplice ? Is it, however, fitting, seriously to ask such questions in respect of any one of a class of men, from whom, 21 242 Introduction to Law Studies. alone, are taken the occupants of the seat of justice ? Much has, indeed, been said in the foregoing pages concerning the judicial office, and the relations to it of advocacy. He who aims at exercising the functions of the latter, in a high spirit, will be greatly assisted by keeping ever present to his mind the nature of the judicial office ; the duties of which he is not to impede and perplex, but further and assist, and so far become himself, a minister of justice, sharing the dignity attached to the adminstration of it. That great and good man. Sir Matthew Hale, on ascending the seat of justice, laid down a series of rules for his own con- duct, which, in the language of one of his successors, we may read with admiration and reverence; which ought to be inscribed in letters of gold on the walls of Westminster Hall, as a lesson to those intrusted with the administration of justice ; which he, who may be considered the perfect model of a great magistrate, strictly and uniformly observed. Let, then, the advo- cate, especially the youthful one, conceive the dignity and responsibility of practicing before one whose con- duct was ever regulated by the following rules, sug- gesting, surely, correlative duties on the part of that advocate : " I. That, in the administration of justice, I am intrusted for God, the King, and country : and therefore, "2. That is to be done: i. Uprightly; 2. deliber- ately; 3. resolutely. "3. That I rest not upon my own understanding or strength, but implore, and rest upon, the direction and strength of God. Ethics of the Bar. 243 "4. That, in the execution of justice, I carefully lay aside my own passions, and do not give way to them, however crooked. " S- That I be wholly intent upon the business I am about ; remitting all other cares and thoughts as unrea- sonable and interruptions. "6. That I suffer not myself to be prepossessed with any judgment at all, till the whole business, and both parties, have been heard. " 7. That I never engage myself in the beginning of any cause, but reserve myself, unprejudiced, till the whole be heard. " 8. That, in business capital, though my nature prompt me to pity, yet to consider there is a pity also due to the country. " 9. That I be not too rigid in matters purely con- scientious, where all the harm is diversity of judgment. " 10. That I be not biased with compassion to the poor, or favor to the rich, in point of justice. "II. That popular or court applause, or distaste, have no influence in any thing I do, in point of dis- tribution of justice. " 12. Not to be solicitous what men will say, or think, so long as I keep myself exactly according to the rule of justice. "13. If, in criminals, it be a measuring cast, to incline to mercy and acquittal. " 14. In criminals, that consist merely in words, where no more harm ensues, moderation is no injustice. " 15. In criminals of blood, if the fact be evident,, severity is justice. 244 Introduction to Law Studies. " 1 6. To abhor all private solicitations of what kind soever, and by whomsoever, in matters depending. "17. To charge myser^'ants: i. Not to interfere in any matters whatsoever; 2. Not to take more than their known fees ; 3. Not to give any undue prece- dence to causes ; 4. Not to recommend counsel. " 18. To be short and sparing at meals, that I may be the fitter for business." Whether is it more desirable, so to practice before a judge like this, as to secure his commendation and respect, or provoke his scorn and abhorrence ? The Ethics of the Bar are a matter of infinite con- cern to the community, whose best interests are iden- tified with the honor and integrity of that Bar; and this chapter cannot be better closed, than with a preg- nant passage from the history of the " Decline and Fall of the Roman Empire." Among the secret and internal causes of the rapid decay of the system of policy introduced, modified and consolidated by Dio- cletian, Constantine and his immediate successors. Gibbon reckons the decline and corruption of the Bar. " In the practice of the Bar, these men had consid- ered Reason as the instrument of dispute ; they inter- preted the laws according to the dictates of private interests ; and the same pernicious habits might still adhere to their characters in the public administration of the State. The honor of a liberal profession has, indeed, been vindicated by ancient and modern advo- cates, who have filled the most important stations with pure integrity and consummate wisdom ; but, in the decline of Roman jurisprudence, the ordinary promo- Ethics of the Bar. 245 tion of lawyers was pregnant with mischief and disgrace. The noble art, which had once been preserved as the sacred inheritance of the patricians, was fallen into the hands of freedmen and plebeians ; who, with cunning, rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into fam- ilies for the purpose of fomenting differences, of en- couraging suits, and of preparing a harvest of gain for themselves or their brethren. Others, recluse in their chambers, maintained the gravity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with arguments to color the most unjustifiable pretensions. The splendid and pop- ular class was composed of the advocates who filled the Forum with the sound of their turgid and loqua- cious rhetoric. Careless of fame and of justice, they are described, for the most part, as ignorant and rapa- cious guides, who conducted their clients through a maze - of expense, of delay, and of disappointment, whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted." 21* 246 Introduction to Law Studies. CHAPTER XII. How THE Law Student should commence his Studies. How he who has determined on devoting himself 'with energy to the common law branch of the pro- fession should commence his studies, is a question which 'has received very different answers ; and if Bonaparte's celebrated axiom — cest le premier pas qui coute — be 'really applicable to the legal campaign, such a con- 'trariety of opinion on this subject as the inquirer is 'fated to encounter, must certainly not a little embar- rass and disconcert him. " Of those who are so civil," says Roger North, in a passage quoted in an early part of this work, " as to assist a novice with their advice what method to take, few agree in the same ; some saying one way, and ^some another ; and amongst them, rarely one that is tolerably just Nor is it so easy a matter to do it, that • every one should pretend to advise ; for most enter the profession by chance, and all his life after is par- tial to his own way, though none of the best ; and I scarce think it is harder to resolve very difficult cases iin law than it is to direct a young gentleman what 'Course he should take, to enable himself to do so." This was said nearly two hundred .years ago, and remains true at the present day! "The neglect or omission of a systematic preparation is," observed the How TO COMMENCE STUDY. 247 late accomplished Mr. Starkie, " previous to the com- mencement of the advocate's career, a very remarkable and a very characteristic circumstance connected with the history of jurisprudence in this country." It is possible that one of the chief causes of such a" state of things is to be looked for in that application to the legal profession, of the principle of the division of labor, which has had the effect of dividing our pro- fession into several departments. Were it otherwise, — were there only one general court regulated by the same rules of practice, governed by the same principles and attended by the same practitioners, then it might, perhaps, be reasonable to expect that some uniform course of legal education should be prescribed by the competent public authorities, and be possibly of a collegiate character. While, however, one meditating an entrance into our profession sees its various depart- ments mapped out before him, and is, if a thoughtful and prudent person, seldom disposed, or indeed quali- fied, to select at once the particular one to which he is to devote his future life — to determine whether he will practice in the chancery, or common law courts, or in conveyancing, apply himself exclusively to criminal law, or betake himself to any of the other existing fields of forensic employment — it certainly would appear unreasonable to prescribe, beyond a certain limit, one uniform course of legal education to all classes of students. It is true, that the great lead- ing principles of jurisprudence, on which is based our own municipal system, as well as those of all other civilized countries, are well settled, and capable of 248 Introduction to Law Studies. being scientifically and satisfactorily communicated to students as the ground-work of all future acquisitions. But it is also undoubtedly and painfully true, that the scientific study of law is rarely, at present, cultivated with that earnestness of purpose, that deep devotion, that deliberation and perseverance, on which alone can be founded valid pretensions to the title of a great lawyer. The tendency of the day is to make, in the significant and sarcastic expression of Sir Edward Coke, "lawyers in haste." Sons and fathers are too often equally impatient for the commencement of the supposed money- making process; and at the very earliest moment that the regulations of the inns of court will admit of, the hopeful youth is seen at West- minster, flushed with eagerness and expectation, in his newly-donned professional costume, eager to obtain business, for the discharge of which he is in truth utterly unqualified, but into which he may nevertheless be thrust, and be for a while sustained, by the determined efforts of the "connection" by which he is backed. His incapacity, however, will, he is assured, soon demonstrate itself and precipitate exposure, amd consequent professional failure, in spite of all that can be done to prevent it. Incomparably better off is he, who has not yet, and for even a long period, been tried at all, than he who has been tried and found wanting : a truth which ought to sink deep into the mind of the most eager and ambitious student, and into those of his parents, friends, and supporters. The same cause operates also, too frequently, in producing a hasty and imprudent selection of one of the various How TO COMMENCE STUDY. 249 departments of our profession, — imprudent, with reference to either the physical and mental qualifica- tions, or the position in life, connections and prospects of the student. Alas, how many painful illustrations of the truth of these remarks are afforded by a survey of the perpetually augmenting numbers of the English bar ! How many come to it as if, in truth, the busi- ness of the bar were mere play, and required little or no previous training; who imagine, moreover, that they may rely on every promise of support made, or precipitately supposed to have been made, by profes- sional friends and acquaintances; expecting to be thrust, instanter, into the full course of professional employment, under the absurd idea that, even were such to be the case, they would be QUALIFIED to encounter " the occasion sudden, the practice danger- ous," ominously spoken of by Sir Edward Coke ! How many hundreds are, at this moment, secretly cursing the hour of their entering a greatly over- stocked profession; are bitterly acknowledging the folly of having ever committed themselves to its intense rivalry and fierce competition, — destitute, too, of all real training and qualification, having fool- ishly let the period for obtaining it go by ! Thus comes it to pass, that the student's great and imme- diate aim and object, from the moment of his entering an inn of court, too often is, to acquire, as expedi- tiously and economically as possible, such a smattering of practical information as may enable him to " do " the business which he possibly may, for a short time, through family or other influence, find ready to be 250 Introduction to Law Studies. "done" by him. He has not acquired business habits; has undergone little or no mental discipline; possesses, in reality, no solid professional knowledge ; and yet holds himself out as capable of practicing in a court of chancery, or common law — in banc, or at nisi prius, in all the other courts — and answering any cases, and drawing any pleadings and conveyances which may be brought to him ! Oh, preposterous folly ! Recurring, however, to the discrepant opinions entertained as to the proper mode of commencing and prosecuting the practical study of the law, the student may be regarded as really, from whatever cause, left, in this matter, to the precarious and conflicting sug- gestions of individuals. How, then, shall he begin ? Solitary reading is recommended by some ; but for how long a period, or of what books, and in what order, no two advisers are agreed. Preliminary attendance, for a short period, in an attorney and solicitor's office, is urged by others. Some are for the student's commencing in the cham- bers of a conveyancer; others, in those of a pleader. .Attend lectures, say some ; acquire a store of general principles to begin with, say others ; while not a few may be found who recommend a plunge at once into actual business, and so obtaining gradually, from practice, a knowledge of principles ! But what shall be said here ? That which is, at all events, the pro- duct of much experience and observation of those who have succeeded or failed, and frequent communication with those pre-eminently qualified to offer an opinion on so important a subject. How TO COMMENCE STUDY. 25 I Shall the student commence with a course of solitary reading ? Let him quietly consider the matter. How few of those coming of late years to the bar are capa- ble of prosecuting effectually, vigorously and system- atically, a course of solitary law reading ! And even were it otherwise, few are the books which, especially owing to the fluctuations the law has recently under- gone, and is still undergoing, can be safely relied upon for that purpose; and many erroneous impressions may be produced in the mind, such as it will require infinite pains afterward to efface. Take an actual case in point : One of the author's ablest friends, who has now quitted the profession, and was skilled in the criminal law, in a communication relative to that sub- ject now lying before the author, thus speaks of " Nolan's Treatise on the Poor Laws," which he had made the subject, in his early professional days, of intense study: — "I have been greatly misled by it, and never able thoroughly to eradicate the now erro- neous principles of the law of rating, so diligently and I may say painfully acquired in my early days." An- other friend of the author, then rising rapidly and deservedly into eminence, on hearing the preceding paragraph read, observed, with a smile, that he also had been an illustration of some of the evils of a course of private reading before he entered the chambers of a pleader. He said, that on quitting college (where he had greatly distinguished himself) he set himself down to a year's solitary and "hard" reading, devoting special attention to the second volume of Blackstone's Commentaries, afld the corresponding portions of 252 Introduction to Law Studies. Coke upon Littleton. Conceiving it to be of the utmost importance to become accurately acquainted with the old tenures, he almost committed to memory — and marvelous was his memory — all those portions of the work in question which related to that subject; perpetually exercising himself in the law of knight service, homage, fealty, escuage, wardship, escheat, lineal and collateral warranty, and so forth ; " and you may conceive," said he, " my mortification on discov- ering how completely my labor had been lost ! though I certainly acquired, at the same time, some valuable knowledge of parts of real property law, now too gene- rally neglected." Another friend had thus "read up" with great care a particular head of commercial law, and completely mastered all the fine-drawn distinctions to be found in the cases cited in the book which he had been studying. Almost the first thing that befell him on entering chambers was, his confidential intima- tion to a fellow pupil of the feat which he had per- formed. "Ah, my friend," he replied, "have you never heard of such and such a statute? Thank Heaven, it's given the coup de grace to all that ! " It is true that, by preliminary solitary reading, some ■notion may be acquired of the general scope of our legal system ; but beyond that, such reading will, in the great majority of cases, do but little for the stu- dent. "There is a monotony attending retired study," says an acute writer, "by which the attention is apt to be fatigued, and the spirits exhausted; while, on the contrary, the effect of oral communication is to keep the mind on the alert, and to render the understanding How TO COMMENCE STUDY. 253 more active. Besides, if any doubt or difficulty pre- sent itself, it may be instantly cleared up, any mistake corrected, every difficulty removed." A man of disci- plined and powerful intellect may, undoubtedly, derive great advantage from any course of reading which he may think fit to adopt ; but how many are unequal to such an effort ; how few can make the attempt, and persevere in it for any considerable period, without the serious risk of falling at length, through difficulty after difficulty only half mastered or entirely passed over, into a superficial, erratic, slovenly and confused habit of mind, which may prove incurable ! " The ordering of exercises," says Lord Bacon, " is a matter of great consequence, to help or to hurt; for, as is well ob- served by Cicero, men, in exercising their faculties, if they be not well advised, do EXERCISE their FAULTS, and get ILL habits as well as good ; so that there is a great judgment to be had in the continuance and inter- mission of exercises." Nor is this consideration the only one to be borne in mind upon this subject. The period of life at which study for the bar is usually commenced, is one at which every month is precious, especially having regard to the unfortunately brief interval which, now-a-days, elapses between commenc- ing the study and the practice of the law. Such is universally the case ; and the student must needs not be behind all his competitors, by expending any por- tion of his time upon an inferior method of acquiring legal learning. If, from special circumstances, he be enabled conveniently to devote a few months to pre- liminary reading, before commencing pupilage in 22 254 Introduction to Law Studies. chambers, he should endeavor to acquire correct gene- ral notions of the feudal system and the civil law ; for which purpose he cannot do better than study the masterly exposition of the former by Mr. Butler, in his note to Coke upon Littleton, or Sir Martin Wright's brief treatise on tenures, and Gibbon's famous chapter on the civil law. Mr. Joshua Williams' "Principles of the Law of Real Property" will be found of great service. It will be recollected that the late Mr. Preston strenuously insisted on the study of the law of prop- erty preceding that of pleading and the practice of the courts. These and other works of an elementary- character, to which reference has been already made, may be advantageously perused by the student, accord- ing to opportunity and inclination ; and will serve to take off the edge of strangeness and novelty from the proceedings he will have to encounter on entering his tutor's chambers. Thus much for SOLITARY READING. Another class of advisers insist on attendance upon lectures, as affording the best introduction to the practical study of the law. A late acute and able author, and himself once a law lecturer, spoke thus shrewdly of the difficulties besetting this mode of teaching and learning law : " The person undertaking to lecture law students stands under circumstances which lecturers on other subjects have rarely to en- counter. Each student is interested, almost exclu- sively, in that circumscribed range of legal knowledge for which he is likely to have occasion when he practices for himself; and thence it happens that what will keep tl^e eyes of one student broadest awake, will How TO COMMENCE STUDY. 25 S set the eyes of another student fast asleep. Again, there is found every shade of disparity in the acquire- ments of pupils, to say nothing of their abilities. Some have yet to learn the veriest elements of law, others want only some finishing touches to their education. In this difference they may be compared to vessels in a fleet, where the swiftest sailors are always on the point of upbraiding the delay of their commodore, and the slower are always apprehensive of being left be- hind. Again, the law student has, most probably, been engaged during the day in some kind of legal pursuit or other ; he comes with a full stomach of law, and is therefore not a little dainty about his food. He comes also, of an evening, when not unfrequently, from very natural causes, his spirits invite him rather more to occupations of an allegro, than of a penseroso kind ! " Long and anxious consideration having induced the benchers of the four inns of court to adopt the system of lectures by readers appointed for that purpose, the author, as one of those responsible for the adoption and continuance of that system, feels indisposed here to express any dissatisfaction with it, and that it would not become him in any way to disparage it. He, on the contrary, cordially wishes it success, and that the readers and students would rival each other in efforts to secure that success. One observation, made more than once in a previous chapter, may be recalled to the student's attention — that there is now infinitely more of what is common to all the departments of the law, than special and 256 Introduction to Law Studies. peculiar to each. While, therefore, acknowledging that the proper methods of procedure in each must be acquired by the student and young practitioner, his first concern is with those great leading principles and doctrines underlying the whole administration of justice. Whatever benefit may be derived from pri- vate reading, or attendance on the lectures of the inns of court readers, let the student rest well assured of one thing — that, however great his talents, the true and best method of learning law practically is to attend diligently, and for an adequate length of time, in the chambers of practitioners at the bar. As far as the courses of study and public examinations, sanctioned by the authorities of the inns of court, may enable a student to acquire a more extensive knowledge of the general principles of jurisprudence and of civil and international law, they undoubtedly supply a great desideratum in legal education. The public examina- tions tend to give readiness, confidence and self-pos- session to the future advocate. If, however, the student should be led to suppose that these courses can be adopted as substitutes for the indispensable training in practitioners' chambers ; and if, above all, he should imagine that he can become a conveyancer, a special pleader, or equity draughtsman, or enjoy the advantages which the mastery of these special branches of legal knowledge gives to the advocate, as well as the consulting counsel, without due attendance in the chambers of experienced and eminent practitioners, he will find that he has made a fatal mistake. Assum- ing him to have determined on such attendance, he How TO COMMENCE STUDY. 2"S7 is earnestly recommended to select, in the first instance, the chambers of one who has only a moderate amount of business, and who is able and disposed to give his personal attention to his pupil; assisting him with suggestions as to books and cases to be really studied, and kindly and thoroughly explaining the nature of the business passing through chambers. Half a year thus spent with an able practitioner will do wonders for a student thoroughly in earnest ; for he may thus make reading illustrate business, and business illustrate reading ; and insensibly acquire that practical tone of mind which enables him to make the acquisition and use of knowledge act and re-act on each other. Let the student, for a moment, imagine himself adopting the plan of private reading ; and in his soli- tary and attentive perusal of the second volume of Blackstone's " Commentaries " to have arrived at that part of the thirtieth chapter which relates to the im- portant and extensive subject of " Title to things per- sonal by contract." He will find the law thus laid down concerning the sale of goods: " If a man agree with another for goods at a certain price, he may not carry them away before he hath paid for them ; for it is no sale without payment, unless the contrary be expressly agreed ; and, therefore, if the vendor says the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But, if neither the money 22* 258 Introduction to Law Studies. be paid, nor the goods delivered, nor tender made,, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. But if any part of the price be paid down, if it be but a penny, or any portion of the goods de- livered by way of earnest (which the civil law calls arrha, and interprets to be ' einptio7iis venditionis con- tractcB argumentum '), the PROPERTY of the goods is absolutely bound by it ; and the vendee may recover the goods by action, as well as the vendor may the price of them. And such regard doth the law pay to earnest as an evidence of a contract, that, by the stat- ute, 29 Car. II, Ch. i,% 17, no contract for the sale of goods to the value of £\o or more shall be vaHd, unless the buyer actually receive part of the goods sold by way of earnest on his part, or unless he give part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the partj' or his agent, who is to be charged with the contract. And with regard to goods under the value of ;£'io, no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year ; or unless the contract be made in writing and signed by th^party or his agent, who is to be charged therewith. * * As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods until he shall have tendered the price agreed on. But if he tender the money to the vendor, and he refuse it, the vendee may seize the How TO COMMENCE STUDY. 259 goods, or have action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that, if A sell a horse to B for ;^io, and B pay him earnest, or sign a note in writing of the bargain ; and afterward, before the delivery of the horse, or money paid, the horse die in '.he vendor's custody, still he is entitled to the money ; because, by the contract, the property was in the vendee. Thus may property in goods be trans- ferred by sale, where the vendee hath such property in himself." Now almost every sentence in the above pregnant paragraph contains the enunciation of a principle so im- portant and difficult in its application, as to have called forth great numbers of reported decisions; and if the facts of only one of those cases were to be proposed to the ablest and most laborious reader, fresh from Jiis perusal of Blackstone, even before his recollection of it had been at all impaired or confused, he would find that the foregoing sentences would be about as service- able in conducting him to a correct conclusion, as a chorus out of Sophocles. Reading them is, really, so to speak, feeding upon essences. If they were even to be learned off by heart, frequently repeated, and imagi- nary cases framed upon them, the student, when asked the simplest practical questions by commercial men, would find himself as much puzzled as if he had never seen or heard of the paragraph in question ; and yet, perhaps, imagine himself fully possessed of the mate- rials for forming a judgment upon them. But he passes on to the next subject, and the one after, and so on, 266 INTRODUCTION TO LAW STUDIES. to the end of the volume; and what sort of a serviceable recollection can he be supposed to retain of the multi- tude of principles which have thus fallen consecutively under his notice ? " There is another observation to be made on the subject of the commentaries," admirably observes Mr. Starkie, " which is this : That where the student extracts general rules and principles from de- cided cases, by the aid of his own talents and industry, he is not only possessed of the general rule or principle, but he has also learned its practical operation, and there- fore the confines and limits to which it extends, — the boundaries, the fines quos ultr.x citraque nequit consistere rectum. But, in the commentaries, where the princi- ple is already extracted for him, he learns the principle with less trouble, it is true, — but then, this is a dis- pensation "with that labor, which is one of the most useful exercises to the mind of a lawyer ; and which leaves behind it the mere idea of an abstract rule, without any knowledge of its practical application, or of the legal limits which the principle serves to define." " With respect to the application of the general princi- ples of justice, they are usually obvious. Opinions do not generally differ about them. It is in the searching out the proper principles in confused and complicated cases of fact, to which the almost infinitely varied combinations and transactions of life constantly give rise, and in the skillful use of the discovered or acknowl- edged principle for defining the boundary line between right and wrong, that its practical excellency consists." When the student at length thinks fit to betake himself, replete with the fruit of private reading, to a pleader's How TO COMMENCE STUDY. 26 1 chambers, he will be in a twinkling convinced of the truth of these observations ; hurried as he will find, himself, probably, from case to case, from pleading to pleading, in such a manner as to confuse all his recollec- tions of past reading. Suppose, now, on the contrary, a man taking the course which is here recommended, of entering, at once, on the scene of actual business, under the eye of one who makes a point of daily prelections with his pupils ; designed first of all to familiarize them with the degree of technical knowledge requisite to com- prehend the details of business, and then gradually to introduce them to the knowledge and application of principles. Some short time after his morning's "read- ing," the following statement of facts is laid before him by his tutor, who requests him to read it over alone, and then come and confer with him upon it : " Mr. is requested to advise whether, under the following facts, an action can be maintained ; and, if so, to draw the declaration. " A, a gentleman farmer, having a cow which was near calving, was asked by B, one of his neighbors, what sum he would take for her. The cow was then in a field belonging to A ; who, one of his servants being present, mentioned £i^ as the lowest price. After a good deal of bargaining, B agreed to give that sum, nothing passing as to the time of payment, and paid A half a crown to bind the bargain. A said, ' when will you take her away ? you may, if you choose, at this moment ? ' ' You had better let her remain in your field till this day week,' replied B, ' Very well, but 262 Introduction to Law Studies. remember the cow is yours, and if any thing happens to her, I will not be answerable.' 'I understand,' said B ; and they parted. Three days afterward, A sent his servant to tell B that the cow seemed ailing, and he had better take her immediately away ; but B said, • Oh, I don't care, I '11 have notHing to do with her ; I don't want her now. I 'm content to lose the half crown.' The cow got worse, and A sent twice to inform B of the fact, who returned similar answers. After the expiration of the week above mentioned, the cow died in calving. A sent immediately to tell B of the fact, but he had gone to a distant part of the country ; on hearing which, A sold the carcass for four pounds and kept the proceeds. Can he, under these circumstances, recover the balance of £8, 17s. 6d. due to him on the bargain ? If so, Mr. will please," etc., etc. " Surely there cannot be a simpler state of facts than this?" inquires the pupil. "Why, let us see," quoth the tutor. "The cow was clearly sold, but was she delivered to B ? for that is a circumstance materially influencing the form of action which must be adopted in order to recover the sum demanded by A; i. e., whether it should be a special count in assumpsit for not accepting the cow, or a common count for goods bargained and sold, or one for goods sold and delivered. If the first of these, assumpsit will be the proper form of action ; if either of the two latter, it may be, indif- ferently, either assumpsit or debt ; under the old system we should have had no difficulty; we should have stated our case in all three ways,' and so must have How TO COMMENCE STUDY. 263 recovered under one or other of the counts. Recollect, however, that we are now restricted to the use of one." Here let the student note, that this portion of the text was written in the year 1834, while the rigorous plead- ing rules, issued under the act which had passed in the preceding year, for the further amendment of the law, were in force. Those of the year 1853, issued under the authority of the common law procedure act, 1852, are niore liberal and equitable. The text remains, however, literally true ; though the consequences of a deviation from the rule there stated are rendered less penal. The measure of damages, or amount recover- able by the complainant, depends on the form in which he is entitled to maintain his action ; and the pleader must ascertain this, in order to be able to advise his client on the prudence of commencing, compromising, or persevering with an action. Resuming the consideration of the case stated in the text, — the student is supposed to have become, by this time, aware of the distinctions between these three modes of "declaring; " and is requested by his tutor to state the facts of the case memoriter, to show that he is in full possession of them. This he can do, but owns himself quite at sea about the law of the case ; "and well you may be," repHes his tutor, "for this, which is so common an occurrence, really involves a knowledge of one of the most extensive and difficult branches of law. There are here nearly a dozen important questions to be considered. Observe that this was only a verbal contract; that no time was mentioned for paying the money; that earnest was 264 Introduction to Law Studies. given ; that immediate possession of the cow was tend- ered, but dispensed with ; and the vendor requested, for the vendee's convenience, to keep it for a week ; that the vendor assented to this, expressly telling the vendee that the cow remained at his (the latter's) risk. He is subsequently informed of the dangerous state of the cow ; and then, unexpectedly, repudiates the whole transaction. The cow dies ; and what is the effect of the vendor's selling the carcass ? Had he a right to do so ? If not, what course ought he to have pursued ? Was the carcass to lie rotting on the field ? Who, at the time of the cow's death, was, in point of law, its owner? If the vendee, did the vendor's sale of the carcass operate as, on his part, a rescission of the con- tract ? What should he do with the half crown received as earnest money ? Can he treat the contract as still subsisting, and therefore sue the vendee for the price ? If he can do this, then was the cow constructively deliv- ered by the payment of earnest, and offer of immediate possession. No time for paying the remainder of the price having been named, was it incumbent on the vendee to tender it, before he could have taken the cow ? In other words, did the vendor, notwith- standing all that had passed, retain a lien on the cow for its price ? If so, could the cow be considered, in any sense of the word, as delivered ? You see now," continues the tutor, " the multitude of questions which may arise out of so simple a transaction as the present, and the vast importance of having the mutual rights and liabilities of the parties well settled and defined ; which frequently cannot be done, in case of a dispute, How TO COMMENCE STUDY. 265 without resorting to very subtle distinctions. When it comes to so nice a point as this, cannot you see the obvious danger of the eager parties perjuring them- selves, if, in the absence of any written terms of con- tract, there should be occasion to supply, and parties should be permitted orally to supply, defective evi- dence ? Now look at the present case. What reason has been assigned by the vendee for breaking his engagement does not appear. What is it in his power to assign if he be put upon his defense to an action ? Are we now, were we ever, in a state to sue him ? Have we acted according to law ? Have we neglected to observe any statutory regulations ? those, for in- stance, of the statutes of fraud ? Can you imagine any defense that he may be relying upon ? Perhaps you will take this book into the pupil's room (possibly Chitty or Addison on Contracts, or Smith's Mercantile Law), and having carefully perused the sections on the ' sale of goods,' try to apply them to our present case." He goes and reads what is entirely new to him, but, nevertheless, if carefully read, by no means unintelligible. Having gained a general notion of the law bearing on this subject, he finds that his case f^lls within the seventeenth section of the statute of frauds, unless the payment of earnest, and the tender of the cow, coupled with the subsequent conversation, exempt it He reads the cases which have been decided on that subject, as well as on others connected with it, — and having come to the conclusion that the property in this cow was clearly vested in B, he finds himself 23 ^66 Introduction to Law Studies. somewhat puzzled to adjust the legal consequences of A's subsequent acts, particularly his sale of the carcass ; and returns to his tutor, who briefly discusses the sub- ject with him. " The cow, on payment of the earnest money, became the PROPERTY of B, whether A did or did not retain a lien upon it for the payment of the remainder of the purchase-money. If A had a right to detain the cow on the ground of lien, it cannot have parted from his possession and been delivered to B ; since neither an actual nor constructive delivery could have taken place till A had divested himself of all claim, on any pretense, to the further possession of the cow. The contract of bargain and sale remains, therefore, in full force ; and B is liable to an action for • goods bargained and sold ' at the suit of A ; whose resale of the article, or rather disposal of the carcass, would not, under the circumstances, interfere with his remedy, as it clearly could not have the effect of an- nulling the contract." Having at length come to a determination on the case, our pupil betakes himself again to his room, draws the appropriate " declaration," and writes down the result of his inquiries in the shape of an opinion ; which, when it has been, perhaps, remodeled and adopted by his tutor, our pupil copies into a book, and devotes the remainder of the day to the subject of discussion ; the bargain and sale, or sale and delivery of goods; the reciprocal rights and liabilities of the vendor and vendee of them ; and the variation of those rights and liabilities by such acts of the parties as are to be found in the case proposed. How TO COMMENCE STUDY. 26/ It is obvious, that he has, by this means, gained a practical insight into an important and difficult head of law, sufficient to guide his researches, when he shall have leisure to pursue them, into the ultimate grounds and reasons of the rules with which he has become acquainted, and which he has thus pleasantly applied to practice. He knows where to look, on any future occasion, for the law respecting earnest ; what consti- tutes acceptance and delivery ; with reference to the statute of frauds ; and his copy of the " opinion " in the case above mentioned serves to connect and arrange his materials for a future exigency. Probably within a day or two, his attention is again called to this sub- ject, by a case involving another application of the law he has collected on the subject of the delivery of goods ; one tending, equally with the former, to fix in his mind the principles which regulate such transactions. With what interest and intelligence will the student then enter upon the examination of such a case, for instance, as the following : A gentleman went into a tobacconist's shop and ordered a quantity of cigars, on terms of ready money, desiring them to be packed and sent for him to his hotel, in Jermyn street. Having sent his own boxes to the tobacconist's shop for this purpose, he followed them, superintended the packing of the cigars ; and taking some of them up, countermanded his first direc- tion, and requested the tobacconist to keep them for a day or two; when he would call, pay for, and take them away in his cab. This, however, he failed to do.; and the seller brought an action against him for the 268 Introduction to Law Studies. price of the cigars. Now had there been a delivery of them ? The tobacconist thought that there had ; and accordingly brought his action for " goods sold and delivered." His counsel contended, that the delivery to the defendant was completed by the seller's filling the boxes furnished to him by the buyer ; " which then became the buyer's warehouse for that purpose, so as to entitle the seller to payment of the ready money price agreed upon, and to preclude him from any right to unpack them." This may seem a plausible way of putting the case ; but hear the ready and decisive- answer of the judge (Bayley), who, with the court (Lord Lyndhurst, C. B.), upheld the nonsuit which the plaintiff had ineffectually tried to set aside. " I do not assent to the proposition, that the buyer's boxes are to be considered as his warehouse ; and think that the seller might consider his goods as being still in his own possession. Goodall v. Skelton is directly in point against the seller's right to recover in this action. There, the plaintiff agreed to sell wool to the defendant, who paid earnest. The goods were packed in cloths furnished by the defendant, and were deposited in a building belonging to the plaintiff, till the defendant should send for them ; the plaintiff declaring that the wool should not go off his premises till he had had the money for it ; and the court held, that no action for goods sold and delivered would lie, for want of delivery." Such are specimens, selected at random, of the current business passing under the pupil's eye in his pleader's chambers; and, supposing him to feel an How TO COMMENCE STUDY. 269 interest in his profession, and exhibit but moderate industrj'', can any thing be conceived more calculated to excite his attention, to lead him easily and at once into the " art and mystery " of law, to work his own way into, and out of, its difficulties ; to deduce accu- rately the principles by which its details are regulated, and fix them deeply in his mind ? " Whoso valueth, or eateth with so keen a relish," says an ancient worthy, " the fruit he buyeth of the stall-woman in a market, as that which his own hand has gathered, after great pains, and, it may be, peril, encountered in the search ?" Our cow case literally bristles with points of law — law involved in three-fourths of the most ordinary business of life, in every shade of variety and degree of com- plication. Facts, such as those in the two cases above narrated, are comprehended without difficulty, and serve to suggest the principles by which their legal con- sequences are ascertained and adjusted ; and if a little perseverance in frequently referring to them be but exhibited, and a spirit of further investigation cherished, the student will, it may be safely asserted, reap more solid instruction from a month of such labor, than from years of solitary reading or attendance on the most learned lectures which can be delivered. The daily recurrence of such instances cannot fail to put him into working trim ; to stimulate his energies, and accelerate the rapidity of his progress. Scenes such as these are calculated to enlist, in a certain degree, his feelings — his self-love — as a motive and stimulus to exertion. He is anxious to acquit himself well in the sight of his tutor and fellow pupils; emulation sets an edge 23* 270 Introduction to Law Studies. upon his attention, and, as it were, chains him to his task. He feels conscious, besides, that he has entered at once upon the species of employment which is to occupy him throughout life, — that he is every hour qualifying himself for the fit discharge of it. He learns law by using it, vires acquirit eundo. While, however, so much efficacy is thus attributed to a course of chamber tuition, let it not be supposed unattended with disadvantages; that there is not a neces- sity for the student to be on his guard against contract- ing bad habits, such as may counterbalance much of the good unquestionably derivable from an assiduous attendance at chambers. First of all, let him never forget, that the practice which he is entering upon and learning in a pleader's, conveyancer's or chancery draftsman's chambers, is only a section of the entire legal system. Should he be so absorbed in what is passing immediately before and around him, as to for- get THE WHOLE, in ITS PARTS, let him rely upon it, that he is doing much that will require to be undone ; deranging the entire scheme of his studies ; and losing sight of PRINCIPLE in petty details. "The practice of a pleader's chambers," justly observes Mr. Starkie, " is, to a certain extent, highly to be valued as a pre- paratory exercise ; inasmuch as it necessarily includes habits of thinking and attention, and a certain order of arrangement, governed by the different forms of judicial process. According to their arrangement, the student digests his ideas, and to these he constantly refers for the solution of legal difficulties. When a doubt occurs, he does not refer at once to general prin- How TO COMMENCE STUDY. 27 I ciples. ' Let us see,' says he, ' how it would stand, if the thing were pleaded. This technical arrangement, and mode of reference, may be frequently advantageous as an aid to memory as well as to the reason ; though, undoubtedly, the solution of the case must ultimately depend upon principles ; in reference to which, the judicial forms and the technical process of pleading are merely secondary and instrumental.' Let the student, in every stage of his study, regard PRINCIPLES as the keystone of the arch, — or rather as the polar star ; and if he find great and undiminishing difficulty in doing so, after his attention shall have been thus dis- tinctly challenged to the necessity of it, let him seri- ously distrust his aptitude for the profession, or at least his capacity for rising above the dead level of mediocrity. Let him not, however, rashly come to such a dismal conclusion ; but make persevering efforts to discern the clear, bright light, which, once discov- ered, will not let him be "in endless mazes lost." "There is nothing," says Mr. Starkie, "which more effectually facilitates the study of the law, than the constant habit, on the part of the student, of attempt- ing to trace and reduce what he learns by reading or by practice to its appropriate principle. Cases appar- ently remote, by this means, are made to illustrate and explain each other. Every additional acquisition adds strength to the principle which it supports and illus- trates ; and thus the student becomes armed with principles and conclusions of important and constant use in forensic warfare ; and possesses power, from the united support of a principle, fortified by a number of 272 Introduction to Law Studies. dependent cases and illustrations ; whilst the desultory, non-digesting reader, — the man of indexes and abridg- ments, — is unable to bear in his mind a multiplicity of, to him, unconnected cases; and, could he recollect them, would be unable to make use of them, if he failed to find one exactly suited to his purpose. The good fortune to meet with a case fully in point is not very frequent, — not without the voluminous digests of the still more voluminous reports, which, hav'ng increased to an enormous extent, are still further increasing in a fearful ratio. A case seemingly in point is not to be relied on without danger, when it is considered how frequently nice distinctions are resorted to as an expedient for attaining justice ; aad that, sometimes, by a bolder course, the precedent is condemned and overruled as untenable." ' Every one of the foregoing sentences is worthy of being pondered by the student ambitious of excellence. That distinguished philosopher, Dugald Stewart, adds the weight of his testimony in favor of the same opin- ion : " I am inclined to believe, both from a theoretical view of the subject, and from my own observations, as far as they have reached, that if we wish to fix the particulars of our knowledge very permanently in the memory, the most effectual way of doing it is to refer them to general principles." A man of average under- standing, who has been early trained to the habit of this constant reference to principle, will not only find himself soon acquiring great additional knowledge, with decreasing effort, but cannot go far wrong, how- ever suddenly, or at whatever disadvantage, he may How TO COMMENCE STUDY. 273 be called upon to act, in case of emergency or diffi- culty. How different is it with — if one may be pardoned such an expression — the unprincipled law- yer. The slightest unexpected difficulty, a hair's breadth variation from the line of ita lex scripta, utterly discomfits him, and develops his utter ignorance of the science of the law. No one can have devoted himself to the perusal of the labors of our great legal luminaries, our Cokes and Plowdens, without discovering such an extent, accuracy and profundity of knowledge, as may be looked for in modern days in vain. How was it obtained ? Where were then the elementary treatises upon the synthetical compendia of -law, of which our times "are so prolific, and on which lawyers of the present day now place so much dependence ? " At present," says that legal giant of our own time, Lord Eldon, "lawyers are made good, cheap, by learning law from Blackstone, and less elegant compilers. Depend upon it, men so bred will never be lawyers (though they may be barristers), whatever they may call themselves." That our forefathers were not entirely destitute of treatises, abridgments, and other assistants to legal study, is true; for the names of Glanville, Bracton, Britton, Fleta, Saint German, Perkins, will at once occur to the reader as instances to the contrary. But how few are they, and at what long intervals of time, when compared with the rapidly multiplying treatise writers of modern days. It was the incessant and systematic study of individual cases, both oral and written, constant attendance on the 274 Introduction to Law Studies. courts, and perusal of the reports which conduced to the formation of the legal greatness of the former sages of the law. The present enormous, and contin- ually increasing, number of reported cases, undoubt- edly calls for aids to the modern practitioner, which were not so requisite to his predecessors ; but, never- theless, we all require to be cautioned against con- tracting a habit of exclusive, or mere primary, reliance upon such assistance. Able, accurate and conven- ient treatises now abound upon almost every head of law; how many persons are there who are indo- lently satisfied with them, and abandon the profitable labor of independent research, and with all its great, direct and incidental advantages. The late Mr. Justice Bayley strenuously deprecated the perusal of treat- ises however able. " Read the cases," said he, " for yourself, and attend to the application of them in practice." One can hardly be expected to follow this advice to its literal extent ; but thus far it may be regarded as sound and practicable ; treatises are useful to guide you to the cases, which you must then thor- oughly examine and study for yourself; and also to methodise your researches, and afford you convenient access to their results. If our treatises become sub- stitutes for the close study of the various cases of which they consist, they will form a grievous stumbling block to both students and practitioners; who will become bitterly conscious of it as soon as they are called upon to argue in court, and are opposed to those who have not been equally foolish. How TO COMMENCE STUDY. 2/5 Let not the student, finally, be surprised or disheart- ened, if, for a considerable time, legal studies present to him a repulsive aspect. Let him persevere. Before steady energy and attention, " grim visaged law will smooth its wrinkled front." " I have heard it observed," says Dugald Stewart, " that those who have risen to the greatest eminence in the profession of law have been, in general, such as had at first an aversion to the study. The reason probably is, that, to a mind fond of general principles, every study must be at first disgusting, which presents to it a chaos of facts apparently unconnected with each other. But this love of arrangement, if united with persevering industry, will at last conquer every diffi- culty, — will introduce order into what seemed, on a superficial view, a mass of confusion, and reduce the dry and uninteresting detail of positive statutes, into a system comparatively luminous and beautiful." 276 Introduction to Law Studies. CHAPTER XIII. Outline of a Course of Law Reading. Whatever confidence the author may feel in the soundness of his opinions as to the proper course of reading to be adopted by the common law student, it cannot but be abated, when he adverts to the singular discrepancies existing between the recommendations of advisers in our own day, — even as was the case in Roger North's time. At least three widely different courses of reading were recommended to the author, greatly to his vexation and embarrassment, on enter- ing the legal profession ; and he was not relieved from his dilemma by a reference to several of the works professing to " guide " legal learners. There is, how- ever, one very obvious cause for such contrariety of opinion. The common law branch of the profession has so many distinct compartments ; so many different kinds of knowledge are required before the pupil can advantageously address himself to business ; the calls of that business upon his attention are so simultane- ously urgent, that neither the pupil himself, — nor often his adviser, — can readily make up his mind which subject to commence, much less which to per- severe with. In attempting to read a single case, he is often distracted by the multiplicity of topics it involves: and so he begins, unless under very firm Course of Law Reading. 277 and judicious superintendence, to enact the part of a legal grasshopper — jumping about from one subject to another — learning nothing distinctly and thor- oughly, but satisfied if, by any means, he can get over each individual exigency. This being the case, different advisers, considering also the different tem- pers and abilities of students, have suggested very different remedies. Some, as before intimated, would have a youth devote a year or two to preliminary and solitary study, — but of what books no two can agree. Others, considering, with the author, that the period of Hfe and circumstances of the bulk of law students will not prudently admit of such a postponement of the practical commencement of their studies, advise them to put themselves at once under the superin- tendence of a pleader ; but here again, no two agree in the course of study to be pursued. Some urge the concurrent, others the consecutive study of works on three or four subjects. Some recommend a diligent perusal, in the first instance, of one comprehensive elementary text book, such as Blackstone's Commen- taries ; while not a few advise the student to give up all idea of consecutive or systematic reading — at least for several years — and pick up his knowledge by practice alone. There are who insist upon the poor student's laying a " Foundation deep and sure,"' in the abstract principles of the science of jurispru- dence, wading to the common law through the deep waters of Grotius, Puffendorf, Burlamaqui, and Vattel ! 24 278 Introduction to Law Studies. And, lastly, some advise him to approach it through the long and dusky avenue of historical research. One class of advisers, again, follows the Lord Chief Justice Reeve; who has left it as his opinion, that " the best, the easiest, and the shortest way for a man to be educated, and formed to be a lawyer, is to make himself master of Lord Coke's Commentary upon Littleton's Tenures." " Him if we will hear, Light after light well-used we shall attain, And, to the end persisting, safe arrive ! " Lord Mansfield, however, speaks in a very different strain of Coke upon Littleton — as "an uncouth, crab- bed author, who has disappointed and disheartened many a tyro." This course has, indeed, been loudly and generally condemned, as tending to disgust, con- found, and mislead the student at the very outset of his career, by plunging him at once into the abtrusest discussions, often, too, upon branches of law which have fallen into desuetude; and his difficulties are enhanced by the total want of method exhibited by Lord Coke ; and, indeed, incident to the functions of a commentator.* Some will have the student begin with Wynne's Eunomus, Blackstone's Commentaries, Sullivan's or Woodeson's Lectures, or Reeve's History of English Law. " Betake yourself at once to Chitty's Plead- ings," say others; or "Selwyn's Nisi Prius," or "Tidd's • "The principal value of the writings of Sir Edward Coke," ob- serves one of his learned editors, Mr. Butler, "consists in their being the center of ancient and modern law." Pref. to Co. Litt. Course of Law Reading. 279 Practice."* Without venturing to offer any observa- tions on the propriety or impropriety of any of these suggestions, the author will proceed in the present chapter to sketch out a course of practical reading which he has had several opportunities of seeing most successfully prosecuted. It will be found, he hopes, to steer clear of the prcepropera praxis, and prcepostera lectio, so pointedly and justly reprobated by Lord Coke ; and that thus the advice of Quinctilian may be constantly kept in view, and acted upon: — Modus mihi quidam videtur tenendus, ne qua prcBpro- pere distringatur immatura frons, et quicquid est illud adhuc acerbum proferatiir. Nam inde et contemptus * To the last edition of Wynne's Eunomus (by Bythewood) there is prefixed the following " plan of reading for special pleaders ; " for which, the editor says, in a note, he "has been considerably indebted to a course of reading prepared by a gentleman eminent in the science of pleading: " — BuUer's Introduction to the Law of Nisi Prius. Selwyn's Abridg- ment of ditto. Starkie on Slander. Holt on Libels. George on Libels. Retrace Blackstone's Commentaries, vol. iii. pp. 1 19-143, BuUer's Nisi Prius, pp. 3-24; Selwyn's Nisi Prius, titles. Assault, Imprisonment, and Adultery, reading the appropriate titles in Bacon's Abridgment and Comyn's Digest. Retrace Blackstone's Commen- taries, vol. ii. from chap, xxiii. to the end. Powell on Contracts. Co- myn on ditto. Long on Purchases of Personal Property. Roberts on the Statute of Frauds, pp. 104-240. Jones on Bailments. Bayley on Bills of Exchange, by Barnes. Chitty on ditto. Abbott on Shipping. Lawes on Charter Parties. Park on Insurance. Marshall on ditto. Watson, or Montagu, on Partnership. Paley on Principal and Agent. Chitty on Apprentices. Whittaker, or Montagu, on Lien. Montagu on Set-off. Cullen and Whitemarsh on the Bankrupt Laws, referring to Root's edition of Cooke, Christian, or Montagu, on the Bankrupt Laws. I Geo. 4, ch. 119, relating to Insolvent Debtors (Mr. B. was writing in 1822). Roper on Husband and Wife. Kyd on Corpora- 28o Introduction to Law Studies. operis innascitur, et futidamenta jaciutur impudentice, et {quod est ubique perniciosissimum) prevenit vive.s fiducia. It may be recollected that in a former part of this work the author endeavored to point out the advan- tage, and, indeed, necessity, of the student's early directing his attention to the machinery of law, before addressing himself to the systematic acquisition of that upon which such machinery operates. It is no part of his design, however, to recommend, in the first instance, the exclusive study of pleading and practice. It will be found, on the contrary, that he has endeav- ored to secure the concurrent pursuit of such knowl- tions. Kyd on Awards, or Caldwell on Arbitration. Toller's Law of Executors. Retrace Blackst. Com. vol. ii. to the end of chap, xxiii. ; Roberts on the Stat, of Fraud, from pp. 241 to 287; Sugden's Vendors; Bac. Abr. Tit. Leases ; Comyn on Landlord and Tenant ; Gilbert on Distresses; Bradby on ditto (reading 57 Geo. 3, ch. 193); Runnington on Ejectment ; Gilbert on Uses ; Sugden on Powers ; Coote on Mort- gages. Retrace Blackst. Com. vol. iii. ch. viii.-xxi. ; Summary Treat- ise on Pleading; Lawcs on Pleading, in assumpsit; Chitty on Pleading; Saunders' Reports, with Serjeant Williams' Notes, referring, with the itwo last, to Archbold's Pleading and Evidence. Phillips on Evidence, ^referring to Gilbert on ditto, Peake on ditto, and Archbold's Digest. iCrompton's Introduction; Sellon's Practice; Boote's Suit at Law; (Gilbert's Common Pleas ; Tidd's Practice and Forms. Retrace Blackst. Com. vol. iv., omitting the last chapter ; East's Pleas of the Crown, and Russel on Crimes, referring to Hale's Pleas of the Crown, Hawk- ins' ditto, Foster's Crown Law, and Coke's Third Institute; Chitty on Criminal Pleading. Chitty on the Game Laws, and on Fisheries. Paley on Penal Convictions. Nolan's Poor Laws, referring to Bott on the Poor Laws, and the fourth volume of Chetwynde's Burn's Justice. "This course of reading may be pursued FROM half past eleven TILL TVi?o, by those who intend to become Special Pleaders." Euno- mus. Pref. (By Bythewood,) p. xlvi. Course of Law Reading. 281 edge, and that which may be termed the general science of the law ; giving only greater prominence to the acquisition of the former, because the want, or undue postponement of it, will perpetually harass the student, and interrupt his progress when his time is most valuable and his opportunities are the fewest. There is scarce a single topic, in any department, but will be found clogged with technical expressions, which he must distinctly understand, — and for that purpose hurry to the elementary books of pleading and practice, which, after all, he scarce, perhaps, knows how to refer to — or rest contented with the most obscure and imperfect conceptions of his subject. And is it not obvious how greatly these perpetual turnings aside must hinder his progress ? " The study of pleading," says an able annotator upon Roger North's Discourse, " is the foundation of the common lawyer's knowledge. An acquaintance with it is as essential to a lawyer as a knowledge of anatomy is to a physician. The principles, divisions and distinc- tions in pleading are founded upon and arise out of the general rules of law, or have, in their turn, given origin to those rules ; and it is therefore impossible to be acquainted with the mode of pleading, and at the same time to be ignorant of the law of the case to which that pleading is applicable.* It is, consequently, * Littleton having mentioned a, matter which "is proved by the pleadings," Sir Edward Coke's comment on this is: "Note. — One of the best arguments, or proofs in law, is drawn from the right entries or course of pleading : for the law itself speaketh by good pleading; and therefore Littleton here saith, ' it is proved by the pleading,' etc., 24* 282 Introduction to Law Studies. of the highest importance to obtain an insight into the theory and practice of this science, which, from its extent and occasional difficulty, exacts a considerable portion of diligence and perseverance. The student of the Common Law ought, therefore, to bestow his best attention upon this science, which at the present day is properly accounted an essential part of profes- sional education."* The plan of study heretofore sketched out may be so disposed, as to secure at once the opportunity of cultivating practical and theoretical knowledge; it will enable the pupil to illustrate the principles of pleading and practice by daily examples, and, by early disposing of those studies which are always the most disheartening and disgusting to a be- ginner, leave him at leisure to pursue those other and more recondite researches, by which alone the whole theory and principles of the law can be thoroughly understood. A clear and connected view, early ob- tained, of the course of an action — of the relations and connections between the different branches of pleading, practice, and evidence, will interest the young lawyer the more in those matters which put in motion the secret machinery of the courts, with which he has already been familiarized. Let him, therefore, in the words of Lord Coke, " diligently apply him- — as if pleading were ipsius legis vivi vox." Litt. sec. 170, Co. Litt. lis (b). Holt, C. J., says : " Pleading, though it does not make the law, yet is good evidence of the law, because it is made conformable to it." I Ld. Raym. 522. And see per Baron Hullock, 3 Bing. 541; Abbot, C. J., 2 B. and Aid. 610 ; Ashurst, J., 2 T. R. 10; Lord Ken- yon, 4 T. R. 648. See Ram's Legal Judgment, p. 13. * Roger North's Law Studies — Notes and Illustrations, pp. 78, 79. Course of Law Reading. 283 self to a timely and orderly course of reading, — that, by searching into the arguments and reasons of the law, he may so bring them home to his own natural reason, that he may perfectly understand them as his own." Let it then be taken for granted, that the stu- dent will at once enter himself with a special pleader, under whose eye he may adopt the suggestions here offered, and offered only with great deference, in the spirit of the poet — " Si quid novisli rectius istis, Candidus imperii; si non, his utere mecum." " Neither do I see," says Lord Bacon, " but that they proceed right well in all knowledge, which do couple study with their practice, and do not first study alto- gether, and then practice altogether."* The student cannot more profitably employ any spare time he may have on his hands before entering into a pleader's chambers, and even a/if^r doing so, than by a thoughtful perusal of Paley's Moral Philosophy — especially Books II, III (Part i) and VI; in which last, the eighth chapter, " On the Administration of Justice," will be found one of particular interest and importance, t The first book then which the student should sit down to, in a pleader's chambers, is Sergeant Ste- phen's Elementary Treatise on Pleading f — a work * Pacification of the Church — Works, vol. vii, p. 92. \ One cannot help here remarking what an unrivaled law-writer would Paley have proved ? Probably as far excelling even Blackstone, as Blackstone all his predecessors, contemporaries and successors. \ Stephen's Treatise on Pleading is of almost as much value to the American student as to the English. It has never been surpassed. 284 Introduction to Law Studies. distinguished equally by its accuracy, perspicuity, and comprehensiveness — its elegance of language and felicity of illustration. It is divided into two parts — the first (of a hundred and fifty pages only) contain- ing "a summary and connected account of the whole proceedings in an action, from its commencement to its termination;" the second (constituting the bulk of the work), " The Objects of the System of Pleading, and Distribution of the Rules OF PLEADING, in reference to those objects." A week's or a fortnight's attentive study of the first part, under the eye of his tutor, will enable the pupil thoroughly to master its clear and brief details, and so to comprehend the general drift of the business transactions in chambers. The following is the outline of the first part of the treatise : " Of the division of actions («. c, real, personal and mixed), — Courts of superior jurisdiction, in which actions may be instituted ; writs {i. e., summonses, capiases, detainers, and forms of actions) ; ancient state of practice as to appearance and pleading; of appear- ance ; of pleading ; of making up ' the issue ' ; of amendment; of the decision of issue in law ; of the trial of issues in fact; of judgment ; of writs of exe- cution ; of writs of error." The whole of this ought — no very difficult task to a man who is in earnest — to be well-nigh learned off The best American treatise on the Principles of Pleading is that of the late William Gould, LL. D. The student studying in the State of New York will find the Treatise on Pleading, by the late George Van Santvoord, a very able and useful book. A new edition of this work, brought down to the present time, will shortly appear. T. Course of Law Reading. 285 by heart, or, at least, the leading definitions, all of which are singularly concise, accurate and elegant. If the author's earnest exhortations, on this head, are but adopted by his young reader, — if he can but be prevailed upon to make vigorous and persevering efforts to master these hundred and fifty pages of Stephen on Pleading, — to exercise himself in them catechetically — he will have rendered a service not easily to be forgotten. Let nothing tempt him to deviate — to flinch from his task — till he feels that almost every line is imprinted on his memory — and then he will turn with keen interest to see it verified and illustrated by the business transacting in cham- bers. In this application of what he has learned to practice, let him neither hurry, nor suffer himself to be hurried, if he wishes to avoid continual indistinctness and error. Slow work at first, makes quick work ever after. Proceed then, with his tutor, to the second part. " In no previous publication," says the Sergeant in his Preface, "has any attempt been made to develop systematically the principles of this science, or, in other words, to explain its scope and tendency — to select from the mass of its various rules such as seem to be of a primary and fundamental character — and to trace the connections of these rules, and show their bearing, as parts of a general scheme or system. It is to this object that the present work is directed." A better account of the contents of this very impor- tant portion of the volume cannot be given than in the words of its author : 286 Introduction to Law Studies. " On the whole, therefore, the author conceives the chief objects of pleading to be these : that the par- ties be brought to issue, and that the issue so produced be material, single and certain in its quality. In addition to these, however, the system of pleading has always pursued those general objects, also, which every enlightened plan of judicature professes to regard — the avoidance of obscurity and confusion, of prolixity and delay. The whole science of pleading, accordingly, when carefully analyzed, will be found to reduce itself to certain principal or primary rules, the most of which tend to one or other of the objects above enu- merated, and were apparently devised in reference to these objects ; while the remainder are of an anoma- lous description, and appear to belong to other miscel- laneous principles. It is proposed in this chapter to collect and investigate these principal rules, and to subject them to a distribution conformable to the dis- tinctions which thus exist between them, in point of origin and object. This chapter will therefore treat — "i. Of rules which tend simply to Reproduction of an issue. "2. Of rules which tend to secure the materiality oi the issue. " 3. Of rules which tend to produce singleness or unity, in the issue. "4. Of rules which tend to produce certainty, or particularity, in the issue. "5. Of rules which tend to prevent obscurity and confusion in pleading. Course of Law Reading. 287 "6. Of rules which tend to prevent prolixity and delay in pleading. "7. Of certain miscellaneous rules. " The discussion of these principal rules," proceeds the Sergeant, " will incidentally involve the considera- tion of many other rules and principles of a kind subordinate to the first, but extensive, nevertheless, and important in their application ; and thus will be laid before the reader an entire though general view of the WHOLE system of pleading, and of the rela- tions which connect its different parts to each other."* The above will supply the student with employment during a considerable portion of the day, for at least a month — and that of downright hard labor. Over and over it again he must go, frequently testing the accu- racy of his recollection both of the various rules and their examples. A very short time will satisfy him of the importance, or rather necessity of so doing — of perfect familiarity with so masterly and concise an epitome of all the multifarious rules of special plead- ing. Nothing will contribute so essentially to a com- plete and available knowledge of this portion of the treatise, as perpetual recurrence to the leading defini- tions and illustrations and deliberate application of them to the actual business which passes under his eye. If he ever feel, in doing this, at a loss, and yet hesitate to apply to his tutor, he will be a fool indeed. Let him but slide into this habit for constancy and he may bid adieu to the attainment of any real knowl- * Treatise on Pleading, pp. i68, 169. 288 Introduction to Law Studies. edge of his profession. What excuse can he have for indolent superficial reading, when his tutor or senior fellow pupils are ever at hand to assist him ? So much at present for PLEADING. The student will next proceed to work out the first portion of the above mentioned into its details — which details are all that is meant by the term "PRACTICE." Pupils are too frequently in the habit of underrating the importance of this kind of knowledge — are apt to look at the two great works of Tidd and Archbold, merely as books of occasional reference — never thinking of using them but on sudden emergencies, and then only pick- ing their way to what they want by index hnnti7ig. Satisfied if they can catch some leading word which their eye may light upon in running down the index, and so be referred to "something about it" — they never think of any connected and systematic perusal of a book of practice, and, consequently, never have a distinct knowledge of these topics which are concerned in daily business. Thus it is that many young law- yers are so deplorably deficient on this important sub- ject, and compelled, besides, to exhibit that deficiency on the most mortifying occasions. There are, as already intimated, two great books on Practice — that of Mr. Tidd and that of Mr. Arch- bold.* The former is arid has long been a work of * The practice in the different States is so diverse, that an American work on Practice, applicable to the several States, is an impossibility. In New York State the work of Mr. Sherman, and that of Mr. Whit- taker, are the best, though either of them is little better than a digest. A systematic, elementary treatise on Practice is a great desideratum. T. Course of Law Reading. 289 paramount authority, on account of its admirable accu- racy and arrangement. It is called by that laborious collector of precedents, Mr. Wentworth, "the polar star of the practitioner." It is, including the forms, in three large volumes, closely printed ; but since the last edition was published, the law of practice has undergone such sweeping and incessant alterations as have called forth supplement after supplement, each framed with great ability and care : but the inconven- ience of a work of reference with three or four supple- ments to it, are manifestly very great. A new edition of the whole work is loudly called for by the profes- sion ; and would confer signal service not only on practitioners but pupils. As, with the exception of the abolition or modification 0/ the law of arrest, few, if any, material alterations in practice are now antici- pated, the profession will not, perhaps, wait long for the publication of a new and complete edition of this invaluable work. Under these circumstances, the author cordially recommends to the student Chitty's Archbold's Prac- tice. It is a far less formidable looking book than that of Tidd ; and, though inferior to it in extent and scientific arrangement, it is, on the whole, better calcu- lated for the student's purposes; being more accessible, and containing numerous little practical suggestions and explanations, which are not to be found in Tidd. It has long been a standard book in the profession, and has not suffered in the hands of its experienced and learned editor. To this work, then, the student, after completing his perusal of Stephen, will devote at 25 290 Introduction to Law Studies. least two hours, twice a week. He will find it but an expansion of the first portion of Stephen on Pleading, the latter of which may be viewed as a kind of map or charter of the former. Yes — two hours, at least, twice a week, must the pupil devote to a hearty- perusal of Archbold, if he wish to make a sure and rapid progress in Jiis professional studies. Nothing but this will familiarize him with the machinery of the law — with its practical working. Without it, he can never know any thing thoroughly that is required in actual business. He is candidly apprised that this is very far from an inviting task — on the contrary, it is one very dreary and disheartening to the bulk of pupils, not one out of five, or perhaps ten, of whom will probably be at the pains we are speaking of He will, therefore, thus obtain a great advantage over very many of his competitors ; for there is nothing that tells earlier in a young pleader's or barrister's favor, than the reputation of being a sound and ready prac- tice-lazvyer — nothing that gains him so quickly the confidence, and even personal attachment, of his clients. Let him, therefore, set himself down early and resolutely to his task ; nor start at hearing that he must make a point of reading Archbold twice through — and well through — from cover to cover. Whatever other studies his attention may be directed to, how numerous and pressing soever may be the calls upon him, let him never give up his Archbold. Let him perpetually pause and reflect on the reason of the various rules he meets with ; and if that is not obvious, he must make a point of perusing the case Course of Law Reading. 291 referred to, as an authority in the note: "for," as Lord Mansfield said, "the reason and spirit ol cases make law — not the letter of particular precedents." Any other mode of reading can be that only of a pettifogger. There is not a sentence — scarce a line, even, of a book of practice, that does not contain the result of acute and learned argumentations before a judge, or the full court, — where all the pros and cons of these apparently trivial matters were most keenly contested ; and nothing is better calculated to train the youthful mind, betimes, to legal habits of thought — to caution and exactitude — than frequent researches of the kind in question. He will often be astonished at the secret difficulties hanging about, apparently the very plainest points of law — the great ingenuity and learning displayed in arguing and deciding them. The student must not smile, when he is recom- mended even to draw up a kind of catechism of the leading heads of practice — framing, for instance, a particularly difficult and important section into short questions, and minuting answers to them on the other side of a small note book, which can be easily slipped into the pocket, and carried about* But surely this * E. g. As to MISNOMER of the defendant, in a writ of summons. Q. The plaintiff having miscalled the defendant, in the writ, — in what name ought he to declare against the defendant, if the d'efend^nb appears by the wrong name ? A. By the wrong name ; because, etc. Q. But suppose the defendant appears by his right name ? A. The plaintiff must then declare against him by his right name, stating that he was sued by the wrong name. Q. Suppose, however, that the defendant does not appear at all, could the plaintiff appear for him according to the statute, in his right name? 292 Introduction to Law Studies. is overrating the importance of such knowledge, mur- murs the student. By no means. Let him only con- sider, for a moment, that this is the kind of learning ■which he is soonest called upon to exercise, and that in a manner which will not admit of his veihng igno- rance — namely, when questions are suddenly put to him by his clients, themselves, in some emergency — "how is this to be done — when must that — what will be the consequences of this mistake — how can it be remedied ? " etc. How painful must be his position, if he neither knows the law, nor can readily, if at all, find it, and stands stammering, hesitating, bewildered, fumbling about his books — compelled, at last, to dis- miss his client, after an evasive, erroneous, or mere guessing answer, with a more dissatisfied and puzzled air than he brought, and the belief that he is employ- ing a superficial and incompetent person, whom it is, consequently, his duty to get rid of as soon as possi- ble! Why, now, will the student hazard all this — why throw such serious obstacles in his way — why confuse and perplex himself, and mislead his clients, A. No; because, etc. Q. Could he then appear for him in the name by which he is sued, and afterward declare against him in his right name ? A. No; because, etc. Q. What course, then, ought the plaintiff to adopt under these cir- cumstances ? A. Let him appear to the defendant in the wrong name, and declare against him by that name — which would subject the plaintiff only to be compelled, by judge's order, to amend his declaration by inserting the right name. Q. Was this the old practice, or is it the result of any of the recent rules, or statutes ? etc. Course of Law Reading. 293 when a little timely persevering industry will insure such happy results ? Say that there are seven or eight hundred pages of Archbold, — what are they to a man who resolutely reads them for two hours, twice a week, for two or three years even ? And what is all this time and labor, when it is considered as insur- ing the easy and pleasant discharge of business here- after, which would otherwise be perpetually annoying and delaying him, when time is an object ? " Tidd's Practice, and Coke upon Littleton," said a learned and eminent friend, the other day, to the author, "I read over well, from cover to cover, three times during my pupilage; and I think the former was the making of me ! I was seen often extricating my friends from momentary difficulties, in court; that led to small cases being sent me on points of prac- tice — these to little briefs — which last led to greater ones, and on general matters. I often say that Tidd was my foundation stone ! " So much, then, for Practice — let us now return to Pleading. We left the student carefully reading the second part of Stephen, and shall suppose him to have completed its perusal. As he resorted to Arch- bold's Practice, in order to carry out the former por- tion of Stephen, so he will be directed to the first volume of Chitty on Pleading, to carry out the latter portion. Hear the liberal eulogy pronounced by the Sergeant upon his collaborateur : " It is to a writer of our own day that the honor is due, of having first thrown effectual light upon the science of pleading, by an elaborate work, in which 25* 294 Introduction to Law Studies. all its different rules are collected, arranged in con- venient divisions, and illustrated by explanation and example. The work here mentioned is the well known treatise on Pleading, by Mr. Chitty ; which no person, competent to appreciate the difficulty of the task performed, can ever peruse without high admiration of the learning, talent, and industry of the author.'' This work happened, unfortunately, to be the first that came in the author's way, on entering the legal profession ; and he rose from a perusal of the first twenty or thirty pages of it with an almost mortal disgust — one which he was long in getting rid of. Having subsequently, however, adopted the course which he has been above recommending — and which he has often recommended, with similar good effect — Chitty's Pleading became as interesting and attractive as it had formerly been repulsive. He saw that he had, in perusing it, only to fill up the comprehensive outline of Sergeant Stephen, and be thus, easily and pleasantly, put in possession of the whole SYSTEM OF PLEADING. This admirable treatise opens with a subject which has been already adverted to in the last chapter, as one of pre-eminent importance and difficulty — "PARTIES TO ACTIONS." As formerly observed, there are two classes of actions — those on Contracts, and those on Wrongs \Ex Contractu — Ex Delicto] ; and the first one hundred and six pages (constituting chapter i) of Mr. Chitty's Treatise are devoted to the question, who ought to be made the plaintiff, and who the defendant, in both of these? Course of Law Reading. 295 "In laying down a rule," says Mr. Hammond, in an admirable little treatise on the subject of Parties to Actions, now out of print, " to determine who should be plaintiff in suing for a civil injury, in other words, who is interested in redressing it, the reflections that would occur to one unversed in legal distinctions would be the following : As civil actions are brought to repair some loss sustained, the party to whose use the fruits of the suit are to be appropriated, and whose interests have in fact been impaired, should complain. Why sue in the name of one who is to derive no benefit from the event, who has sustained no real loss for which to demand a reparation ? This reasoning, however plausible, and even just in actions ex delicto, would often deceive, if applied to actions for a breach of contract. Here the choice of a suitor must be guided by considering, not whose are the losses meant to be repaired, but with whom the agree- ment has been made ; for he alone can enforce its per- formance, and complain when it has been broken. It must, therefore, and with the view of deciding whether two or more should sue jointly for a breach of con- tract, be inquired, with whom shall it be said that a contract has been concluded ? or, which reaches the same meaning, and is the technical mode of express- ing the same thing, who has a legal interest in a con- tract ? Now, the answer to the question, in whom resides the legal interest in contracts, is by no means uniform, but is governed by the nature of the agree- ment respecting which the question is asked." It is obvious that this is a subject which involves, directly 2g6 Introduction to Law Studies. and indirectly, a considerable extent of general legal knowledge — as of the law of principal and agent — bankruptcy, insolvency, assignment, partnership, mar- riage, death, etc. ; and which will consequently require very careful instruction and numerous explanations on the part of the pleader, in his morning prelections with the pupil. The latter must not complain at being kept at this extensive portion of his studies for a month or two ; for if he does justice to it, he may rest assured that he has made very considerable progress. The next subject to which the pleader will direct his pupil's attention will be the FORMS OF ACTION, which, with but moderate effort, can be easily mastered in a few weeks ; for with their general outlines he has been already partially made acquainted in Stephen, and their minor details are perpetually exemplified and illustrated by the business going on in chambers. The remaining portions of the treatise, which are but an amplification of that of Sergeant Stephen, and which will require to be read with much caution, and perpetual reference to the subsequent decisions, rules and statutes, by which such extensive alterations have been effected — the student will take every opportu- nity of acquainting himself with, though unable, for the present, to go systematically through them, as through the previous portions. He must not fail to study the precedents of declarations, pleas, etc., con- tained in the second and third volumes; anxiously observing how they are adapted to particular cases, and treasuring up in his mind the important notes Course of Law Reading. 297 appended to almost all the forms, and containing information which is often sought for elsewhere in vain. If he will but make a point of seeking thus a solution of the various difficulties which he encounters in actual business, he will soon be sensible of making rapid progress in the acquisition of the science. While the pupil, however, is thus vigorously applying himself to the study of pleading and practice, he must make a point of reading such portions of the second volume of Blackstone's Commentaries, to be pointed out by his tutor, as will give him a general notion of the nature of property, real and personal, with their re- spective incidents. This he will follow up by occa- sional perusal of Selwyn's Nisi Prius, a work which he ought ever to have at his elbow, for the purpose both of continuous reading and reference. It consists of a number of concise elementary treatises on all the leading heads of Nisi Prius law, conveniently arranged with reference to pleading and evidence." Suppose, for instance, his pleader gives him " instructions " to draw a declaration in an action for assault and bat- tery; he will read them over, and then turn to that head in Selwyn, to gain a general notion of the law on that subject. He is already familiar with the structure of a Declaration of Trespass, which he finds is the form of action he must adopt ; and also obtains an insight into the mode of sustaining the case at the trial, by "evidence." By this means the student will not only understand more distinctly the scope and bearing of the rules of special pleading, but make daily accessions to the fund of his general legal knowl- 298 Introduction to Law Studies. edge. He will soon perceive that almost three-fourths of his pleader's business consists of opinions and plead- ings in actions "Ex Contractu;" and that it will, therefore, be necessary for him early to direct his attention to the law of contracts. The great treatise of Pothier, a foreign author, on the Law of Contracts, is strenuously recommended to the student's attention. It is thus spoken of by Lord Ten- terden and Sir William Jones : — "It is remarkable," says the former, in the preface to his "Shipping," "for the accuracy of the principles contained in it, the perspi- cuity of its arrangement, and the elegance of its style." " Here I seize with pleasure an opportunity," says Sir William Jones, "of recommending his (Pothier' s) admirable treatises on all the different species of express or implied contracts to the English lawyer, exhorting him to read them again and again : for if his great master Littleton has given him, as it must be presumed, a taste for luminous method, apposite examples, and a clear, manly style, in which nothing is redundant, nothing deficient, he will surely be delighted with works .in which all these advantages are combined, and the greatest portion of which is law at Westminster as well -as at Orleans : for my own part, I am so charmed with them, that, if my undissembled fondness for the study of jurisprudence were never to produce any greater benefit to the public than barely the introduction of Pothier to the acquaintance of my countrymen, I should think that I had, in some measure, discharged the debt which every man, according to Lord Coke, owes to his profession." Course of Law Reading. 299 The student will also provide himself with a copy of Mr. Joseph Chitty's (jun.) Treatise on Contracts.* It is in one octavo volume, of moderate size, and is, in the author's opinion, decidedly the best practical treatise extant upon the subject. He has had occasion frequently to examine it for practical purposes, and is happy to bear testimony to its admirable arrangement, accuracy, compression of detail, and comprehensiveness of design. If the student, in short, will but do justice to this work, he will have obtained no mean acquaint- ance with a very important and extensive branch of law. Thus, then, may the student advantageously occupy himself during the first twelvemonth of his pupilage ; and at its close, let him take a review of what he has done : — he has thoroughly acquainted himself with the outlines and leading details of the system of plead- ing and practice, — having, to adopt Lord Bacon's language, repeatedly " returne'd unto the fundamentals of the science." He has marked their practical appli- cation ; has tolerably familiarized himself with the most extensive head of business in a pleader's chambers — the law of contracts; and the numerous subjects discussed in Selwyn's Nisi Prius : by which means he has acquired a considerable fund of miscellaneous information, and a knowledge of the mode of using it. * The American student should read, in place of the work recom- mended in the text, an admirable little treatise on the " Priiiciples of the Law of Contracts," by Theron Metcalf; the best work on the subject for a beginner extant. After that, should be read " Parsons on Contracts," a work unexcelled for accuracy, arrangement, clearness and elegance of style. T. 300 Introduction to Law Studies. He has acquired something like settled business-like habits, — an aptitude for legal investigation, and tol- erable facility of reference. Has not this, then, been a well-spent year ? While some, 'ill-advised, have been poking about disconso- lately in the regions of ethics — have been poring over Locke, Hobbes, Grotius, Puffendorff, Vattel — and are only just emerging out of the cold • atmosphere of unsuccessful abstract speculation ; while others have been galloping over Blackstone, or losing themselves in the gloomy tortuosities of Coke upon Littleton, or frittering away their time over this, that, and the other " elementary " book, or dancing attendance on various lecturers, or gadding about in search of the conflicting suggestions of their friends, our practical student, turning neither to the right hand nor to the left, has already advanced far on his way ; has learned the use of all the weapons of ordinary legal warfare; has acquired a keen relish for the pursuit of professional learning ; has found out a way of reading many books, :in thoroughly mastering one ; and where he does not .actually know the law, can at once discover where it may be found. His second year will be spent, according to circum- stances, with the same pleader, provided his ability, learning and business warrant it, — or with another, of longer standing, greater experience, and business of a more difBcult description. This second tutor, when he sees the intelligent, business-like manner in which his pupil sets to work, will scarcely believe that he is but commencing his second year's study of the law ! Course of Law Reading. 301 Here, however, he must be " up and doing ; " all his former habits are brought into full play ; all his acqui- sitions and 'facility of reference are heavily taxed, for the business he now sees is not only of a more arduous character, but passes necessarily in quicker succession before him. Nevertheless, he will not lose his breath, or presence of mind ; he will not over-eagerly attempt too much, — but what he does attempt will be credita- bly done and thoroughly understood. How often he will bless himself for his familiarity with Stephen, but especially with Archbold ! How many little difficul- ties he finds daily disappearing ! How numerous the operations now afforded him of correcting or corrobo- rating his impressions of practice ! Nevertheless, he may yet be disheartened at finding nearly a hundred heads of law perpetually brought into action,^that he had before scarce more than heard of " Perhaps," he will begin to think, " I have been premature : I feel that I am taken suddenly out of my depth — I had better have staid half a year or a year longer with my first preceptor — but, n' importe, 'tis now too late; so I'll even make the best of it." In this humor, he goes on with dogged patience, with steady resolution, not attempting to grapple with every thing, at once, — to monopolize "papers," in order to hurry through them sooner than his fellow pupils, and so acquire a reputation for superior acuteness and dexterity. He will indulge no such puerile feelings. In a month or two's time, he will discover that he is leaving his com- petitors far behind him. Though some of them may have been in the field a year or two before him, yet 26 302 Introduction to Law Studies. his superior energy and method give him so evidently the advantage over them, that he is often consulted in their difficulties, instead of their tutor ; who, not slow to appreciate his merits, gives him papers of increasing difficulty, and affords him at the same time less assist- ance than he found necessary at first. Our student, as he looks at his well-worn Archbold and Chitty, is conscious, not that he knows so much- more than his fellows, in point of extent — but that what both know, he knows so much better than they, — what he does not know, he can learn so much more easily and effectually, retain so much longer than they, and apply with so much superior expertness. To proceed, how- ever, he will feel every day more and more the neces- sity of understanding the law of EVIDENCE, a subject with which he has already become incidentally and partially acquainted, but of which he must now begin to seek a more systematic knowledge. The two standard works on this branch of the law are those of Phillips and Starkie.* Either of them may be studied with great advantage ; the former may be considered, perhaps, to be of a more direct practical, the latter (published in 1833) of a more elementary and philosophical character. The first volume of Mr. Starkie's Treatise consists of an admirable exposition of the general principles of the law of evidence, and the student may rest assured that an attentive perusal of it will be attended with the happiest effects. The * Greenleaf on Evidence is undoubtedly the very best book for a " first book" in tliis branch of legal science. It has become a standard au- thority, not only in this country, but in England. T. Course of Law Reading. 303 more he reads it, the oftner he connects and illustrates his readings with the actual business of chambers — the more distinct and accurate will become his notions, not only of evidence, but of pleading and practice. He will be astonished and delighted to find how rap- idly his old difficulties disappear, as he acquaints him- self with the intimate — the secret connection between pleading, practice and evidence ; their mutual bearings — their action and re-action upon one another. He will therefore devote two hours twice a week to the perusal of Starkie, and make a point of devoting par- ticular attention to every " case on evidence " that comes into chambers. He could not have a better book at his elbow, for ordinary purposes, than Saunders on Pleading and Evidence ; which contains, in a very convenient form, the law both of pleadings (with precedents) and evidence. While, however, the student is thus vigorously addressing himself to " evidence," let him not lose sight of pleading and practice : Mr. Starkie must not be allowed to jostle aside Messrs. Chitty and Archbold ! Let the pupil make a point of frequently testing the accuracy of his recollections of these two works, as well as extending his knowledge of them. Chitty on Contracts, too, must continue to be an object of constant attention ; nor must Selwyn's Nisi Prius be forgotten. Thus is he to become " thor- oughly furnished" with respect to pleading, practice and evidence. Let us now, however, look to the sub- stance of the law upon which this machinery operates — in its two leading divisions of real property and commercial law. With both of these, especially the 304 Introduction to Law Studies. latter, he has become in some degree acquainted, in going through the ordinary routine of business ; but he is now anxious for a more connected and systematic knowledge of them. Let him, then, with reference to the former of these subjects, betake himself forthwith to the second vol- ume of Blackstone's Commentaries, and read with profound attention such portions as his tutor may select — who will at the same time apprise him of the extensive alterations which have taken place in that branch of law, and point out other works which may enable the student to follow up advantageously his study of particular topics.* Watkins on Conveyancing will probably be one of the books selected. After having carefully considered Blackstone and Watkins, the student cannot do better than betake himself to * The following is the advice given by the late Mr. Butler to a student of the law of real property : " He should begin by reading Littleton's Tenures, with extreme at- tention, meditating on every word, and framing every section into a diagram; abstaining altogether from the Commentary, but perusing • Gilbert's Tenures.' After this, he should peruse ' Sir Martin Wright's Tenures,' and 'Mr. Watkins' Treatise on Descents' — and then give Littleton's Tenures a second perusal. After this second perusal of the text, he should peruse it a third time, with the ' Commentary ' of Lord Coke; and afterward peruse 'Shepherd's Touchstone' in Mr. Preston's invaluable edition of that work. The reminiscent presumes ■to suggest that the student may then usefully peruse the Notes on Feuds, on Uses, and on Trusts in the last edition of Coke upon Lit- tleton; and then read Littleton and Coke, and the notes of the last editors." — Butler's Reminiscences, p. 61. There is :i beautiful little pocket edition of Littleton's Tenures, published in 1831, by Messrs. Clarke, which the student would do well to purchase and carry about with him. Course of Law Reading. 305 Burton's Elementary Compendium of the Law of Real Property,* which will be found, though by no means so easy, yet a most instructive performance. It is distinguished equally by its perspicuity, accuracy and compression — to which latter quality is attributa- ble no little of the obscurity and difficulty which are sometimes complained of by students. If this volume be read with due perseverance and reflection, and fre- quent reference be made to Coke upon Littleton, and the other authorities, the pupil will find that he has made no inconsiderable progress in this — one of the most difficult and uninviting departments of his studies ; and will be prepared to enter hereafter, with great advantage, upon a six months' course of study with a conveyancer, who will at once direct him to the proper sources of information — to Coke upon Littleton, and Cruise's Digest — and familiarize him with the practical working of the system. Landlord and Tenant-Law the student must have become already tolerably well acquainted with ; and the best, though bulkiest, book on this subject, for occasional reference, is Woodfall by Harrison, t Adams on Ejectment, a clear, accurate and well-arranged work, will be found to concentrate within a narrow compass, as much of real property law as is ordinarily involved in the "title" necessary to maintain that important action. * After having read Blackstone and Kent on this branch of the law, the student should read Mr. Washburn's "Treatise on the American Law of Real Property," which, as a legal classic, stands unexcelled. + The best American work on the subject is Taylor's " Landlord and Tenant," and a very excellent work it is too. T. 26=* 3o6 Introduction to Law Studies. With some of the leading topics of Commercial Law, our student has already acquired a respectable acquaintance in the pages of Chitty on Contracts, and the various heads in Selwyn's Nisi Prius, to which he has had occasion to refer in the course of actual busi- ness. The eloquent observations of Lord Glenbervie (formerly Mr. Douglass) are highly descriptive of the general character of Commercial Law. " Such are the various modifications of which prop- erty is susceptible, so boundless the diversity of rela- tions which may arise in civil life, so infinite the possible combinations of events and circumstances, that they elude the power of enumeration, and are beyond the reach of human foresight. A moment's reflection, therefore, serves to evince that it would be impossible, by positive and direct legislative authority, specially to provide for every particular case which may happen." It was, till very lately, a difficult task to point out an elementary introduction to Commercial Law generally, worthy of the student's attention. The ponderous octavos which pass by the name of " Chitty's Commercial Law," were of course out of the question; and Mr. Woolrych's "Treatise on Commercial Law," though in its dimensions more consistent with the time and opportunity of the learner, was calculated, both in plan and execution, exclusively for non-pro- fessional readers — so as to be of little or no immediate utility to the student or practitioner. A work has, however, just issued from the press, which has long been felt to be a desideratum — one, namely, which should be to Commercial what Burton's is to Real Course of Law Reading. 307 Property Law. The one alluded to is Smith's Com- pendium OF Mercantile Law, which is in one vol- ume of the same size as Burton.* "The idea of this work," says its author, " was suggested by Mr. Burton's Compendium of the Law of Real Property. The acknowledged utility of that book induced me to believe that an attempt to compress the chief doctrines of an equally important branch of law, into a treatise of similar dimensions, might not prove altogether useless." As Mr. Smith has taken Burton for his model, in point of form, so he has nearly equalled him in compression and perspicuity. The pupil may safely purchase and study this work as the most comprehen- sive and accurate summary of the leading principles of Commercial Law that is extant. Partnership, — another most complicated and extensive head of law, — has been written on specifi- cally by Watson, Montague, Gow and Collyer; and ably treated of, in an elementary manner, in Selwyn's Nisi Prius,^- Chitty on Contracts, and Smith's Com- pendium of Mercantile Law. Any one of these last will suffice to give the student an outline of the subject — its general principles and bearings upon pleading and evidence — aided by the illustrations afforded by actual business and a tutor's instructions. It will * Probably the best American Treatise on Commercial or Mercantile Law is that by Mr. Parsons, author of the Treatise on Contracts before alluded to. + The student will find an excellent substitute for all these works in Mr. Parsons' "Treatise on the Law of Partnership." Like all of that learned writer's works, it is well arranged, accurate and clear. T. 3o8 Introduction to Law Studies. require, however, very great attention, and several years' experience, to acquire any thing like a competent practical knowledge of the law of partnership. Of the four treatises above mentioned, the chief are Gow's and CoUyer's ; either of them will conduct the reader to the very depths of the subject. Mr. Collyer's is, perhaps, upon the whole, to be preferred, on account of his fuller statement of the cases, whereby the reader will be better able to understand and appreciate the wonderful decisions of the most sagacious, profound and comprehensive lawyer that ever sate upon the Woolsack — Lord Eldon. His magnificent intellect shone forth pre-eminently in the adjudication of part- nership and bankruptcy cases ; and his is by no means an ordinary mind that can comprehend his Lordship's judgments and apply them in practice. " His, sure, is no ignoble arm, That wields a giant's weapons." The young lawyer must not be too anxious, therefore, about the early and complete mastery of bankruptcy and partnership law. He must be content to approach these difficult subjects by slow and sure steps ; gaining out of the elementary works above referred to sufficient to guide him in the ordinary exigencies of pleading, practice and evidence, till he has leisure to apply him- self to a deeper and closer study of these subjects. Principal and Agent. — Smith's Compendium, Chitty on Contracts, and Selwyn's Nisi Prius, contains each of them an excellent introduction to this impor- tant branch of law ; but the first is decidedly the preferable for the learner, being most complete, and Course of Law Reading. 309 containing the latest law. Some idea of the nature and extent of this subject may be gathered from the following enumeration of the sections in chap. 3 of Smith's Compendium : "Sec. I. Definition and Charter of 'Agent.' 2. Rights of Principal against Agent. 3. Rights of Agent against Principal. 4. Rights of third parties against Principal. 5. Rights of Principal against third parties. 6. Rights of Agent against third parties. 7. Rights of third parties against Agent." The only treatise on this subject is that of Paley, a new edition of which has been lately published, with many valuable notes by Mr. Lloyd.* Insurance. — This is a subject which, though of great importance, comes less frequently in the way of the young lawyer than, perhaps, any of those already enumerated. It was under the auspices of that distin- guished judge. Lord Mansfield, that this branch of law was organized into a system. " The law of insurance has been frequently mentioned," says Mr. Roscoe, " as an instance of the admirable manner in which his pow- erful mind created a system of law adapted to all the exigencies of society. When his Lordship was raised to the bench, the contract of insurance was little known, and a few unimportant Nisi Prius decisions were all that were to be found upon the subject. Yet this branch of law, so little understood, grew up, under his admin- * The American edition of this treatise, with notes by Mr. Dunlap and Mr. Waterman, is probably the best work that the student can read on the subject. T. 3IO Introduction to Law Studies. istration, into a system remarkable for the excellence of its principles, and the good sense and simplicity of its practice." * An excellent summary of the law of insurance will be found in Smith's Compendium, or Selwyn's Nisi Prius ; and Hughes on Insurance may be consulted with advantage for the practical details. Abbott on Shipping must be studied carefully by him who wishes to obtain a thorough and comprehensive acquaintance with the law of shipping. This work is characterized by Lord Tenterden's well known clearness, caution and accuracy, and is an authentic and authoritative digest of foreign as well as English law on the important subject of shipping. " It is now," says Lord Tenterden, " more than a century since the first publication of the work of Molloy, the only English lawyer who has written on these matters. During that period the law of the country has grown with its commerce ; many interest- ing points have been argued by able and eloquent advocates, and decided by learned and enlightened judges ; and some very important regulations have been introduced by the legislature ; but very little of useful addition has been made to the collection of Molloy, either by the subsequent editors of his treatise, or by the other authors who have written on the same topics. Yet the absence of a general and esta"blished code of maritime law, which almost every other European nation possesses, serves to render a collec- * Lives of Lawyers, pp. 216, 217. Course of Law Reading. 3" tion of the principal points of that law peculiarly- necessary, both for English merchants and English lawyers. On the subject of insurance, this has been already effected. In the present treatise an attempt is made to supply the defect in some other branches. The treatise now offered to the public is compiled, not only from the text writers of our own nation, and the reports of the decisions of our own courts, but also from the books of the civil law, and from such of the maritime laws of foreign nations, and the works of foreign writers, as I have been able to obtain a knowledge of" * Sale of Goods, etc. — All the law respecting the sale of goods is stated in Chitty, and Comyn on Con- tracts, Smith's Compendium, Ross's Vendors (edited by Harrison), and in so many other easily accessible works as render it unnecessary to specify them. Bills of Exchange, Promissory Notes, Checks, etc. — This is a great and very intricate head of law, and one to which the student's attention will be called almost daily. — "An intimate acquaint- ance with the commercial law, in respect of bills of exchange," etc., observes Mr. Chitty, " is of the great- est importance to every professional man, because more ready and immediate advice is required from him in respect of bills and notes, than on almost any other point ; and the pleader, in particular, is called upon for the utmost expedition in advising and framing the legal proceedings." Mr. Chitty's treatise, from * Abbot on Shipping, Preface viii. ix. 312 Introduction to Law Studies. which the above is quoted, and which is a very com- plete and masterly one, contains every thing relating to the subject, very conveniently arranged, and with an excellent analytical index. It is, however, a work of such formidable dimensions as are apt to scare the student, and confuse him, when suddenly consulting it, with its minuteness and multiplicity.* Roscoe's Digest of the Law of Bills of Exchange is a very accurate and well arranged work; but Smith's Com- pendium contains, perhaps, the best and briefest sum- mary to be anywhere found, of this difficult and extensive subject. There is but one work extant on this subject, of a strictly elementary character, but that work is an admirable one, — the little treatise of Mr. Byles. Its slight appearance might, perhaps, lead a hasty observer to treat it as a meagre and superficial performance ; but the more it is read and used, the more will be appreciated the ability, method, accuracy and compression, which it exhibits. It is surprising that the author should have contrived to combine such comprehensiveness and compression — to render his work at once so elementary and practical. " Simple as a bill or note may in form appear," says Mr. Byles, in his well-written preface, " the rights and liberties of the different parties to those instruments have given rise to an infinity of legal questions and multitudes of decisions — a striking proof of what the experience of all ages has already made abundantly manifest, that law is, in its own nature, necessarily * The treatise of Mr. Parsons, and that of Mr. Edwards, are recom- mended to the American student. T. Course of Law Reading. 313 voluminous ; that its complexity and bulk constitute the price that must be paid for the reign of certainty, order and uniformity ; and that any attempt to regulate multiform combinations of circumstances by a few general rules, however skillfully constructed, must be abortive. This little work aspires merely to supply a want felt by many, of a plain and brief summary of the principal practical points relating to bills and notes, supported by a reference to the leading or latest authorities. In many cases, however, the reader will find the law laid down in the very words of the Judg- ment — a plan which the author has been induced to adopt, partly that those who may not have access to the authorities may be satisfied that the law is correctly stated ; partly because he distrusted his own ability to frame, on so complicated a subject, a general rule, neither too narrow nor too wide — beset, as almost all such rules, now are, with numerous qualifications and exceptions ; and partly because the language of the judges is infinitely superior to any which he could presume to substitute — remarkable as are many of the reported judgments on this subject in our courts of law, for accuracy, precision and perspicuity.'' It were to be wished that the perspicacious intellect of Mr. Byles would address itself more frequently to such tasks as the one he has undertaken with reference to bills of exchange. The only other treatise — if it should not rather be called a digest — on this subject is that of the very learned Mr. Justice Bayley, and is, as it deserves to be, a work of acknowledged authority. It is less calculated, 27 314 Introduction to Law Studies. however, than either of the others above named, for consecutive reading, especially on the part of the learner. Such are the leading heads of Commercial Law, both in difficulty and importance — such the works and manner of reading them which the author has ventured to point out to the attention of the learner. There are, however, several other most important heads of law which demand the student's close and early attention — as, for instance, the law of LIBEL AND SLANDER, an interesting and not particularly difficult subject, of which Selwyn's Nisi Prius, Phillips' Evi- dence, and Saunders on Pleading and Evidence, con- tain each of ^ them excellent summaries. The only treatise of note is that of Mr. Starkie, of which a new edition has been lately published. Such portions only of this work must be read as may be pointed out by the tutor — for the whole work is too bulky to admit of being read through, at least during the early part of the student's career.* The law of executors and administrators is very intricate and difficult, and yet is involved in a very considerable portion of the business to which a young lawyer's attention is called at an early period of his studies. It is therefore of importance that he should soon acquire a distinct notion of the character and functions of executors and administrators, and, at least, a general acquaintance with their extensive and complicated rights and liabilities. Let him, therefore, * A very well-written treatise on the Law of Libel and Slander, by Mr, Townshend, has been recently published, T. Course of Law Reading. 315 peruse attentively Blackstone's Commentaries, book ii. c. 32, " Of Title by Testament and Administration ; " and chap. v. part viii. of " Chitty's General Practice of the Law," which is a sort of abridgment of WIL- LIAMS ON Executors, "one of the most able and correct works," says Mr. Chitty very justly, " that has ever been pubHshed on any legal subject." This latter work is in two large octavo volumes, recently published, and was mentioned with commen- dation by the late Lord Tenterden, from the bench. The pupil's attention will be directed by his preceptor to those portions of the work which most require it. Shepherd's Touchstone is a work which will be found very useful to the young common lawyer. It is a work of very high authority, and contains the cream of Coke upon Littleton. The chapters " On Deeds," and " The Exposition of Deeds," "Condition," "Cove- nant," "Testament," are worthy of special attention. It would be an endless task to enumerate all the treatises on specific subjects, with which the student ought to be more or less acquainted. Experience and his tutor will from time to time point them out to him. There are, however, two or three standard works of a general character which must be mentioned before concluding this chapter. Saunders' Reports, with the commentaries of Sergeant Williams, and annotations of Mr. Justice Pat- terson — all three of them lawyers of very great emi- nence — has long been a celebrated text-book of the common lawyer — a mine of pleading knowledge — a model of legal analysis. Since, however, such whole- 3i6 Introduction to Law Studies. sale alterations have been lately effected by rules, stat- utes and decisions, the utility of this admirable work has been, as far as learners are concerned, considerably impaired ; and it requires to be read with much caution. A new edition, however, which has long been called for, will, no doubt, ere long, make its appearance, and be hailed by our student as a prize. Mr. Chitty's " GENERAL PRACTICE OF THE LAW," which is now nearly completed, and of which the first three parts have already passed into a second edition, — a work which, says its author, "incorporates the result of forty years' severe study and experience, — will be a great accession to the young lawyer's library at any period of his studies. Its plan and arrangement are very comprehensive and convenient. It may be looked on as a kind of cabinet, in which may be depos- ited one's law, new and old — or rather as a series of "pegs to hang modern decisions upon." It is the only work, of modern days, that really presents, as it professes, a connected view of the whole system of the civil administration of justice, in every department, as it now exists — and is, therefore, well calculated to become a companion to Blackstone'S COMMENTA- RIES — a work which cannot be mentioned but with feel- ings of pride and gratitude toward its illustrious author. It is becoming too much the fashion to depreciate the practical utility of the Commentaries, on the alleged ground of their having become, in a considerable measure, obsolete* — and of their " superficiality " * Mr. Amos calls them, in one of his lectures at the London Uni- versity, "A chamel house of dead law .'" Course of Law Reading. 317 and " inaccuracy of details." It may be safely asserted, that not all the alterations which have taken place since their publication, put together, have seriously impaired the intrinsic excellence and utility of the Commentaries. They will last as long as the laws of England. A persevering study of them will always confer very great benefit upon learners, young and old. Nowhere else will they see subjects of the most per- plexing intricacy and obscurity explained with such masterly ease, such exquisite felicity of disposition and illustration. " He it was," to adopt the graceful illus- tration of Lord Avonmore, " that first gave to the law the air of a science. He found it a skeleton, and clothed it with life, color and complexion : he embraced the cold statue, and by his touch it grew into youth, health and beauty." It may, indeed, be said of Black- stone — nihil tetigit quod non ornavit. There are, certainly, portions of the Commentaries which may be passed over — at least during the pupil's earlier years — with but a cursory glance ; but the great, the unal- terable, PRINCIPLES of law, the exposition of which occupies the bulk of the work, shine forth there in their fitting, their native, dignity and simplicity.* * The author once asked one of the most eminent political writers now living — one who had on several occasions been signally successful in attacking the opinions of lawyers in Parliament — how it was that he, who had never been a member of the legal profession, was so completely at home on legal subjects, especially on questions of constitutional law. " Why," he replied with a smile, " I study a book which you lawyers only talk about, or look down upon — Blackstone's Commentaries — the most delightful and instructive work that ever came in my way. I must have read it over at least four or five times." 27* 3i8 Introduction to Law Studies. A neat and portable edition of Blackstone, by an editor of competent practical learning, who would The author has thought it would not be uninteresting to set before his younger readers the opinions which have been expressed by several eminent persons, professional and others, concerning the Commenta- ries: Lord Mansfield: "Till of late, I could never, with any satisfaction to myself, point out a book proper for the perusal of a student ; but since the publication of Mr. Blackstone's Commentaries, I can never be at a loss. There your son will find analytical reasoning diffused in a pleasing and perspicuous style. There he may imbibe, imperceptibly, the first principles on which our excellent laws are founded ; and there he may become acquainted with an uncouth, crabbed author — Coke upon Littleton — who has disappointed and disheartened many a tyro, but who cannot fail to please in a modern dress." Holliday's Life of Mansfield, p. 89. C, y. Fox: "You, of course, read Blackstone over and over again; and if so, pray tell me whether you agree with me in thinking his style of English the very best of our modern writers ; always easy and intel- ligible, far more correct than Hume, less studied and made up than Robertson. * « * His purity of style I particularly admired. He was distinguished as much for simplicity and strength as any writer in the English language." Trotter's Memoirs of Fox, p. 512. Jeremy Bentham : " He it was, who, first of all institutional writers, has taught jurisprudence to speak the language of the scholar and the gentleman, put a polish upon that rugged science, and cleansed her from •the dust and cobwebs of the office ; and if he has not enriched her with that precision which is drawn only from the sterling treasury of the sciences, has decked her out, however, to advantage, from the toilet of classic erudition ; enlivened her with metaphors and allusions, and sent her abroad, in some measure to instruct, and in still greater measure to entertain, the most miscellaneous and even the most fastidious societies." Fragments on Government, Preface, Ixxxix. Sir William Jones: "His Commentaries are the most correct and beautiful outline that ever was exhibited of any human science." Law of Bailments, p. 3. Mr. Selwyn: "A justly celebrated writer, who for comprehensive design, luminous arrangement and elegance of diction is unrivaled." Nisi Prius, vol. i, p. 45 (»), 7th ed. Course of Law Reading. 319 confine himself strictly to pointing out what is errone- ous and obsolete, without attempting to encumber it with such unweildy annotations as have disfigured some editions, — is much wanted, and would, doubtless, be well received by the profession and the public. Such is the outline of a course of reading — if one may adopt so formal a term — which the author ven- tures to hope will be found advantageous to a diligent and enterprising student. It is but an outhne ; for the multitudinous exigencies arising in the course of two or three years' practical study of the profession will call for frequent reference to, and perusal of, works which could not be specified in the foregoing chapter, without converting it into a mere catalogue of books. Such must be suggested, from time to time, by an experienced tutor, — if, indeed, the pupil be not able to discover them for himself In reading, however, the books here recommended, it is hoped that they will be read in the manner and spirit pointed out; that the student will ever have before his mind's eye that important maxim : NON QUAM MULTA, SED QUAM MULTUM. 320 INTRODUCTION TO LAW STUDIES, CHAPTER XIV. Method and Objects of Law Reading, with reference to apprehension; memory; judg- MENT. Whatever may be the course of reading adopted by the student, however few or numerous his opportuni- ties of so doing, let him always bear in mind, that his object is, or ought to be, two-fold : not only to acquire and retain legal knowledge, but in doing this to disci- pline his mind — to engender legal habitudes of thought. An eager but short-sighted student is apt to read only for the momentary satisfaction of his curiosity — or, at most, in order to recollect what he has read ; but a judicious student will take care, in addition to this, constantly and vigorously, to exercise those great faculties of his understanding, — apprehension, mem- ory and judgment. "Perception," says a judicious author, "is to the mind what the eye is to the body : if the sight be dim or imperfect, the ideas communicated will be also dim and imperfect* The near-sighted man must have * "A clear apprehension," says Phillips, "makes the mind receive the right and' distinct notion of the thing represented, as the clearness of a glass serveth for the admission of a more exact image of the face that looks upon it ; whereas, if it be soiled or dim, it rendereth either none or an imperfect shape. Stu. Leg. Ra., p. lo. Method and Objects of Law Reading, etc. 321 the object brought close to his eyes ; for that reason he can see but little of it at once, and requires much time and leisure to view all the parts successively before he can pronounce concerning its due symmetry and proportions. In the same manner, the man of slow capacity must have the question long before him — revolve it over and over in his mind, and consider and weigh each circumstance singly, in order to form a judgment of the whole : but the sharp-sighted man — such an one was Lord Mansfield — takes in the object with all its relations and consequences at a glance ; and so quick is his distinguishing faculty, that the act of conception and judgment seems almost to be formed and executed at the same instant. * * * Those endowed with this faculty are in the fairest way of becoming eminent in any science or profession. With it, a man may fail, but without it, he cannot ever be considerable."* "Without this," says Phillips, " none of the particular cases can be thoroughly sifted or sufficiently set forth. For, considering the depth of knowledge reposed in the laws of this land, and that cases of much conformity and resemblance daily happen ; sharpness of apprehension is necessary, not only for the understanding of one, but also upon cir- cumstances of matter to espy a difference in the other, and upon any sudden occasion to be able to reply to an adversary's unexpected objections — to understand his client's case at first opening, the drift of his adver- sary's reasons at the first urging, and likewise readily * Simps. Reflect., pp. 8, 9. 322 Introduction to Law Studies. to invent and fitly to apply his provided arguments. If this faculty of apprehension faileth — saith Hippo- crates — all other diligences are lost, for it is the inlet of knowledge." These are judicious observations; but it should be borne in mind, that as there is no fac- ulty of more importance than this in the study of the law, so is there none which requires such vigorous control and management, lest it should, in a manner, defeat itself Nihil sapientics odiosius acumine nimio. The youthful possessor of a quick apprehension is too apt to rely upon it unduly — if not exclusively. Accustomed to penetrate in an instant, with little or no effort, to the meaning of what he reads, he is sat- isfied with such momentary success, and incurs the •xisk of forming a hasty, superficial habit of reading and tthought, calculated soon to unfit him for competition ■with men who are very greatly his inferiors in natural ability. What is the use of acquiring legal knowledge ■without the power of retaining and of using it? It 'is but vapor, disappearing from the polished surface of the mirror the moment after having been breathed iupon it ! Let the student, then, who is conscious of ipossessing this "sharpness of wit," watch it with the lUtmost jealousy, if he wish to render it his greatest friend, instead of his greatest enemy — let him prevent its encroachments upon the province of its less showy .and active sister quality — the judgment* Let him * "Men often stay not," says Locke, "warily to examine the agree- •ment or disagreement of two ideas, which they are desirous or concerned 'to know; but, either incapable of such attention as is requisite in a long train of gradations, or, impatient of delay, lightly cast their eye Method and Objects of Law Reading, etc. 323 check it when it would hurry him on from page to page — from topic to topic — each little more than glanced at! Let him resolutely pause, and take a survey of his recent and rapid acquisitions ; for if he look not well after them, they will prove — to adopt the beautiful comparison of Locke — " like fairy money, which, though it were gold in the hand from which he received it, will be but leaves and dust when it comes to use." How often will a few moments of such retro- spection convince the self-satisfied student, that what he had imagined himself to have thoroughly under- stood, he has only half understood, or, perhaps, even altogether ^wunderstood ! Has what he read a day, or week, or month a two ago passed away — "as flits the shade across the summer field" ? If SO, he has, indeed, read to no purpose, but has wholly misspent his time. Whatever, then, such an one reads, let him read with moderate slowness, " abiding," as South says, " and dwelling upon it, if he would not be always a stranger to the inside of things." But has the student, after all, this quick apprehension for which he is here given credit ? Or on, or wholly pass by, the proofs ; and so, without making out the demonstration, determine of the agreement or disagreement of two ideas, as it were, by a view of them as they are at a distance, and take it to be the one or the other, as seems most likely to them upon such a loose survey." Essay on the Understanding, Book IV, ch. 4, sec. 3. "A student should labor by all proper methods," says Dr. Watts, " to acquire a steady fixation ot thought. The evidence of truth does not always appear immediately, nor strike the soul at first sight. It is by long attention and inspection, that we arrive at evidence ; and it is for want of it that we judge falsely of many things. We make haste 324 Introduction to Law Studies. does he only suppose he has, deluded by his friends and flattered by self-love? How often is_a lively fancy confounded with an acute perception — fancy, which is, in legal studies, but as the brilliant poppy- flower in the cornfield ! It would be well if every law student, whatever be his quickness, would liken himself, for a while, to the near-sighted man described in a preceding page, and make similar efforts to obtain a clear and complete view of his subject. If he wish to become really and permanently bright, let him imagine himself for a while to be dull — and take his meeisures accordingly. It may be safely asserted that, ceteris paribus, the slow is always preferable to the quick legal reader, at the commencement of his studies. Slow work at first makes quick work ever after. Let the pupil consider fhow comparatively short an interval must elapse be- itween the acquisition of legal knowledge and habits, ;and their use; and that it res^s only with himself •whether or not he shall be hereafter " fit for the occa- .sion sudden," or be numbered throughout life among ■ to determine, upon a slight and a sudden view, — ^we confirm our guesses which arrive from a glance ; we pass a judgement while we have but a ■ Confused or obscure perception, and thus plunge ourselves into mis- 1 takes. This is like a man who, walking in a mist, or being at a great distance from any visible object ( suppose a tree, a man, a horse, a ■ church), judges much amiss of the figure and situation and colors of it, and sometimes takes one for the other ; whereas, if he would but with- ■hold his judgment till he came nearer to it, or staid till clearer light came, and then would fix his eyes longer upon it, he would secure himself 'from those mistakes." Improvement of the Mind, chap, xv. " Of Fixing the Attention. " Method and Objects of Law Reading, etc. 325 those who are " ever learning and never able to come to the knowledge of the truth." There are few things so captivating to young lawyers of the kind now describing — of " Hvely parts," as Phillips hath it — nothing more calculated to mislead them, than those general principles which have been already alluded to — general principles, which, to be at all serviceable, must be applied with prompt exact- itude to the innumerable and ever varying combinations of circumstances presented to the attention of the lawyer. Nothing will ever enable them to appreciate and apply those principles justly, but patient study and experience. It may be laid down, perhaps, that, with the young lawyer, principles should be rather the results than the precursors of study and practice. " The tenant shall not dispute his landlord's title," — is, for instance, a well-settled rule of law ; it is, appar- ently, a very simple one, and its policy obvious, per- •haps at a glance. The student, therefore, passes on, yeilding full and instant assent. Presently a case arises which he confidently considers to be exactly governed by this maxim — apparently a mere instance of its application: and yet he will find, when perhaps too late, that it is not applicable — that, in his hasty, super- ficial examination, he has committed a fatal blunder, and deeply injured at once the interests of his client and his own reputation. And so of a hundred other maxims. It requires, indeed, the nicest discrimination to ascertain whether a particular case falls within the general rule, or is governed by some of its endless limitations and exceptions; and this discrimination 28 326 Introduction to Law Studies, must be the result of calm, leisurely, and extensive study and practical experience. General principles are edge-tools in the hands of the legal tyro ; and he must take care how he handles them. While, however, the student is warned against falling into a hasty, slovenly, superficial habit of mind, let him not fall into the opposite extreme — that of sluggish- ness and vacillation. Careful and thoughtful reading does not imply a continual poring over the same page or subject. The student might, in such a case, justly compare himself to the pilgrim stuck in the Slough of Despond. Because he is required to look closely at each individual part, in order thoroughly to com- prehend the whole, let him not suppose that he is to scrutinize it as with a microscope. What is required is simply attentive reading. If he cannot, after rea- sonable efforts, master a particular passage, let him mark it as a difficulty, and pass on. He will by and by return, in happier mood — with increased intellect- ■ ual power and knowledge — and find his difficulty vanished. The student's reading, however, must not only be thus attentive — it must be steadily pursued. " Without a solid, settled and .constant mind, it is impossible to make any progress in this study ; for the cases being so intricate, and the reasons thereof so deep and weighty, a wavering and unsettled mind cannot attain to the apprehension thereof — being herein like the mathematics — wherein, if the mind be caught away but for a moment, he is to begin anew. One of such an unsettled mind is n«t capable of medi- tating and ruminating upon those things that it hath. Method and Objects of Law Reading, etc. 327 with difficulty apprehended, so as to fix it, and make them its own. Qui ex aliis, saith Seneca, in alia trattsiliunt, aut ne transiliicnt, quidem, sed casu quodani transmittuntur, quomodo habere quicquam cerium man- surumve possunt, suspensi et vagi ? And this unset- tledness and inconstancy is sigjttim vacillantis animi et nondum tenentis tenorum suum ; in Seneca's style — it produceth divers and contrary thoughts, aliis alio nitentihus, which, like divers and contrary diet, hinder digestion, one thought smothering the other, not suffer- ing him to have the least benefit of any. His body is among his books, but not his mind; or, if reading, doth not show himself attentive and diligent, but doth either number the tiles of the house, or build castles in the air — or doth nothing less than what he should do — his thoughts being much like good women's talk at a gossiping ; whereof Seneca tells us — varius nobis fuit sermo ut in convivio, nullatn rem usque, ad exihim, adducens, sed aliunde transiliens. One of the most frequent but unperceived sources of hindrance, to one who wishes to pursue a systematic course of legal reading, is the undue prosecution of particular topics. In perusing, for instance, a treatise, the student will stumble on a difficult — an obscure passage ; which, as it ought, excites his attention. He begins to examine the chief case cited — that refers to others — which again lead to others — and he follows. In doing this, he accidentally lights upon a point that occupied his attention some time before : here he finds the law so invitingly stated that he cannot think of quitting it. This he follows up, as he was following 328 Introduction to Law Studies. up another topic — and so he goes on, hour after hour, perhaps, till he finds that he has drifted out of sight of the point from which he originally started, and has quite lost the connection between his previous readings. Now, if he does not check this erratic tendency, he will never get through any book or pursuit satisfacto- rily; he will gradually incapacitate himself for fixed and continuous mental exertion. " A cursory and tumultuary reading,'' says Lord Coke, in the preface to the sixth part of his reports, " doth ever make a confused memory, a troubled utterance and an uncer- tain judgment." The acquisition of learning, however, will serve but little purpose unless it be permanently and serviceably retained* This will depend much on the natural powers of the memory, but more on the manner in which it is exercised and cultivated. " For my own part," says Dugald Stewart, " I am inclined to suppose it essential to memory, that the perception, or the idea that we would wish to remem- ber, should remain in the mind for a certain space of time, and should be contemplated by it exclusively of every thing else ; and that attention consists partly, perhaps entirely, in the' effort of the mind to detain the idea or the perception, and to exclude the other objects that solicit its notice." * "What booteth itio read much, which is a weariness to the flesh; to meditate often, which is a burden to the liiind ; to learn daily with increase of knowledge ; when he is to seek for what he hath learned, and perhaps, then especially, when he hath most need thereof ? Without this, our studies are but lost labor !" Stu. Leg. Ra., 1$, 16. Method and Objects of Law Reading, etc. 329 " When we first enter on any new literary pursuit," says the same distinguished writer, in another part of his work, " we commonly find our efforts of attention painful and unsatisfactory. We have no discrimination in our curiosity, and by grasping at every thing, fail in making those acquisitions which are suited to our limited faculties. As our knowledge extends, we learn to know what particulars are likely to be of use to us ; and acquire a habit of directing our examination to those, without distracting the attention with others. It is partly owing to a similar circumstance, that most readers complain of a defect of memory, when they first enter on the study of history. They cannot sepa- rate important from trifling facts, and find themselves unable to retain any thing, from their anxiety to secure the whole." It is a trite remark that no power of the mind is susceptible of such rapid and sensible improvement as the memory, provided proper means be resorted to. It is, also, a common observation that the imperfection of their memory is one of the earliest and loudest complaints of legal students. And is not the reason obvious, at least in the generality of cases ? The " variety almost infinite " of objects,* to which their * "It is reported of Cyrus that he could have saluted all his army by the names of his soldiers respectively ; and Seneca tells us that he him. self, by memory, repeated two thousand names in the same order in which they were spoken to him. These facts, if true, show to what a height the memory may be carried : and if this faculty be useful to a general and a philosopher, how much more so must it be to a lawyer when the very cases which are reported are, perhaps, more numerous than the soldiers in Cyrus' army, and are certainly more difficult to re- 330 Introduction to Law Studies. attention is called, they are anxious to recollect — at once ; to fix them indiscriminately in their memory ; and their vain efforts to do so, insure but intense chagrin, and fruitless exhaustion both of body and mind. " As the great purpose to which this faculty is sub- servient," says Dugald Stewart, "is to enable us to collect and to retain, for the future regulation of our conduct, the results of our past experience; it is evi- dent that the degree of perfection which it attains, in the case of different persons, must vary : first, with the facility of making the original acquisition ; secondly, with the permanence of the acquisition ; and thirdly, with the quickness or readiness with which the indi- vidual is able, on particular occasions, to apply it to use. The quahties, therefore, of a good memory are, in the first place, to be susceptible; secondly, to be retentive; and thirdly, to be ready."* The law student, then, having distinctly compre- hended what he has been reading, should reflect upon it, and so — as it were — work it into his mind, if he wishes to retain it for future use. But he must make a prudent selection of his topics — not bestow equal member, there being fewer associations of ideas to assist us in recol- lecting the names of cases, than the names of men." Simps. Reflect. * Phil, eh VI, sec. 7, p. 417. "It is but rarely that these three qualities are united in the same person." We often, indeed, meet with a memory which is at once susceptible and ready ; but I doubt much if such memories be commonly very retentive ; for susceptibility and readi- ness are both connected with a facility of associating ideas, according to their more obvious relations ; whereas, retentiveness, or tenaciousness of memory, depends principally on what is seldom united with this facility — a disposition to systematize, and to philosophical arrangement." lb. 418. Method and Objects of Law Reading, etc. 331 attention upon things of moment and of insignificance — upon principles and details. If he do this, his mind, he may rely upon it, will be soon choked up with rubbish. It is puerile to attempt to remember every thing. The memory is, undoubtedly, a most valuable repository — but it may be, and too often is, made not a storehouse, but a lumber-room. In vain do we flatter ourselves that we have a memory of those ideas which we cannot recollect — or which, if we do recollect, are so confused, that they perplex or embar- rass, instead of explaining and illustrating a question." Not only must the powers of the memory be thus directed to proper objects, but the student must form the habit of reading with a constant reference to sub- sequent practical utility. He must read to remember. " Not only the inclination to recollect," justly observes Mr. Raithby, "but the very powers themselves of recollection are impaired, and at length lost by disuse." The following observations are so full of practical importance to the young lawyer, that it has been thought fit to quote them at length from the work of that distinguished writer, to whom such frequent ref- erence has been already made, Dugald Stewart : " Every person must have remarked, in entering on any new species of study, the difficulty of treasuring up in the memory its elementary principles ; and the growing facility which he acquires in this respect, as his knowledge becomes more extensive. By analyzing the different causes which concur in producing this facility, we may, perhaps, be led to some conclusions which may admit of a practical application. 332 Introduction to Law Studies. " r. In every science, the ideas about which it is peculiarly conversant are connected together by some particular associating principle; in one science, for example, by associations founded on the relations of cause and effect; in another, by associations founded on the relations of mathematical truths ; in a third, on associations formed on antiquity of time and place. Hence, one cause of the gradual improvement of memory with respect to the familiar objects of our knowledge ; for, whatever be the prevailing associating principle among the ideas about which we are habitu- ally occupied, it must necessarily acquire additional strength from our favorite study. " 2. In proportion as a science becomes more famil- iar to us, we acquire a greater command of attention with respect to the objects about which it is conversant; for the information which we already possess gives us an interest in every new truth, and every new fact which has any relation to it. In most cases, our habits of inattention may be traced to a want of curi- osity; and, therefore, such habits are to be corrected, not by endeavoring to force the attention in particular instances, but by gradually learning to place the ideas which we wish to remember in an interesting point of view. " 3. When we enter on any new literary pursuit, we are unable to make a proper discrimination, in point of utility and importance, among the ideas which are presented to us ; and, by attempting to grasp at every thing, we fail in making those moderate acquisitions which are suited to the limited powers of the human Method and Objects of Law Reading, etc. 333 mind. As our information extends, our selection becomes more judicious and more confined ; and our knowledge of useful and connected truths advances rapidly, from our ceasing to distract the attention with such as are detached and insignificant. " 4. Every object of our knowledge is related to a variety of others, and may be presented to the thoughts, sometimes by one principle of association, and sometimes by another. In proportion, therefore, to the multiplication of mutual relations among our ideas (which is the natural result of growing informa- tion, and, in particular, of habits of philosophical study) the greater will be the number of occasions on which they will occur to the recollection, and the firmer will be the root which each idea, in particular, will take in the memory. It follows, too, from this observation, that the facility of retaining a new fact, or a new idea, will depend on the number of relations which it bears to the former objects of our knowledge ; and on the other hand, that every acquisition, so far from loading the memory, gives us a firmer hold of all that part of our previous information, with which it was in any degree connected. "5. In the last place, the natural powers of memory are, in the case of the philosopher, greatly aided by his peculiar habits of classification and arrangement — the most important improvement of which memory is susceptible." Influenced by such reflections as these, let the student approach his task with a well directed and well regu- lated energy — and he will soon find that his memory 334 Introduction to Law Studies. is sufficient for the duties imposed upon it. A patient, perspicacious intellect, adopting and adhering to a methodical plan of study, will very soon feel conscious of a memory gradually adapting itself to its office — fbrming daily innumerable secret sources of association, at once facilitating the acquisition, retention and use of legal learning. Attention and method are, indeed, the foundation and support of memory. Frequent reflection on what has been read — perpetual recur- rence to leading principles,* and application of it to the actual occurrences of business, will be the readiest way of making what is read — our own. It cannot, indeed, be too frequently impressed upon the student, that with METHOD he may do every thing, without it he can do nothing, in legal studies. " The law is a * I am inclined to believe, both from a theoretical view of the subject, and from my own observations, as far as they have reached, that if we wish to fix the particulars of our knowledge very permanently in the memory, the most effectual way of doing it is, to refer them to gen- eral principles. Ideas which are connected merely by casual relations, present themselves with readiness to the mind, so long as we are forced by the habits of our situation, to apply them to daily use ; but when a change of circumstances leads us to vary the objects of our attention, we find our old ideas gradually to escape from the recollection ; and if it should happen that they escape from it altogether, the only method of recovering them is by renewing those studies by which they were at first acquired. The case is very different with a man whose ideas, pre- sented to him at first by accident, have been afterward philosophically arranged, and referred to general principles. When he wishes to rec- ollect them, some time and reflection will frequently be necessary to enable him to do so : but the information which he has once completely acquired continues, in general, to be an acquisition for life ; or if, acci- dentally, any article of it should be lost, it often may be recovered by a process of reasoning." — Stewart's El. Ph. ch. vi. sec. 2, vol. i, p. 420 (6th ed.). Method and Objects of Law Reading, etc. 335 labyrinth; and certainly, if there be any, method is that Ariadne's clew which must lead us out of it." " I must, in general, say thus much to the legal student," says Sir Matthew Hale ; " it is very necessary for him to observe a method in his reading and study. Let him assure himself, though his memory be never so good, that he will never be able to carry on a distinct serviceable memory of all, or the greatest part of what he reads, to the end of seven years, or much shorter time, without the help of method : nay, what he hath read seven years since, will, without the aid of method, or reiterated use, be as new to him as if he had scarcely read it." This great man then proceeds to recommend the student's copying into a common-place book " the substance of whatever he reads ; " but, it may be suggested — why not rather imprint it in his memory ? Why beget the habit of reliance rather on a common-place book, than on the memory? This subject, however, will be, discussed hereafter. One of the prbfoundest and most versatile scholars in England, and, perhaps, in Europe — in many respects one of the most eccentric — has a prodigious memory, which the author once told him was a magazine stored with wealth from every department of knowledge. " I am not surprised at it," he added, " nor would you be, or any one, that knew the pains I have taken in selecting and depositing what you call my ' wealth.' I take care always to ascertain the value of what I look at — and if satisfied on that score, I most carefully stow it away. I pay, besides, frequent visits to my ' magazine,' and keep an inventory of at least every thing important, 336 Introduction to Law Studies. which I frequently compare with my stores. It is, however, the systematic disposition and arrangement I adopt which Ughtens the labors of memory. I was by no means remarkable for memory, when young; on the contrary, I was considered rather defective on that score." In conclusion, a little familiarity with legal studies and practice will convince the young reader of the truth of one of the observations already quoted from Dugald Stewart — of the practicability of acquiring a sort of technical dexterity in remembering both facts and principles. But of what avail are quick and accurate acquisitions, and tenacious retention of knowl- edge,* without the power of turning it to practical account ? Of what use is the finest supply of drugs and chemicals, never so beautifully arranged, if their owner cannot compound them ? In other words, what are apprehension and memory, without JUDGMENT? " The faculty of examination, or judgment," as Sir John Doddridge saith, " is almost alone sufficient to make a ready and able lawyer. This solidity of judg- ment teacheth to weigh and try the particulars appre- * The writer recollects a poor pious soul — one Victory Purday, by name, a collier in Somersetshire — who, incredible as it may seem, had the Bible oiif by heart ! The writer had many opportunities of testing the reality of his acquisitions — which proved, indeed, prodigious. He had chapter and verse for every thing. Mention only one word of any verse, and he would tell you exactly where '^ was to be found, cum fertinentiis, with unfaltering readiness and precision. Not a step further, however, could poor Victory go. As far as reasoning went he was an idiot. He could no more put two texts together in proof or disproof of any particular doctrine, than he could fly. Method and Objects of Law Reading, etc. 337 hended, and to sever for us the precious from the vile. ,* * Nothing is more prejudicial to it, than precipitancy and impatience of delay or attendance on the determination of right reason, which makes us commonly run away with half or a broken judgment: in which respect Aristotle in his Ethics very elegantly compares it to a hasty servant that goes away posting without his errand. Without this faculty of judgment, though a man were furnished with every thing else, he hath no more sufficiency to judge or plead, than the code or digest — as one saith — which, compassing within them all the laws and rules of reason, for all that, cannot write one letter."* Let the student, it is once more entreated, bear in mind, in all his readings, that he is reading not for speculative but practical purposes — that the period will soon arrive when he must use his acquisitions — often in very arduous circumstances; that he can appear in public but as he shall have qualified himself beforehand by private study. If he do not thus reflect, and act, — if considerations of this kind do not constantly influence his mind, he may shut up his books. Quickly as he may acquire, firmly as he may retain — it will be all lost upon him; all his faculties * Stu. Leg. Ra. pp. 14, 15. " Patience and slowness of belief, " says another writer on legal studies, "are the strongest mark of a sound judgment, and are nowhere more necessary than in the study and profession of the law. The seeming agreement which many cases have with each other, in point of circumstance, is too apt to mislead the warm imagination, and make us fancy there is an exact similitude, where, in fact, there is an essential difference between them." Simpson's Reflections. 29 2^8 Introduction to Law Studies. and acquisitions will fail him when the day of trial shall have arrived. Whatever be the subject of the student's reading — either a treatise, or a report, let him imagine himself doing so in preparation for the next day's business. This reflection is calculated, more than any thing else, to set an edge upon his attention — to put all his powers on the qui vive — to throw an air of intense and vivid interest over the driest studies. Is he read- ing an intricate case, full of elaborate and profound argumentation ? Let him, after considering each side of the question, draw upon kis own ingenuity — imagining himself to be one of the counsel engaged. Does he differ on any points from the reasoning which lies before him ? Let him note down the grounds of such difference — let him, in short, carefully and calmly weigh each in the balance of his own under- standing ; endeavor to put a particular argument in a more striking point of view — in more cogent terms — to develop some latent objection — in short, to realize the case, and make it his own. His reason- ing powers cannot fail to improve very rapidly under this sharp and constant exercise, which transforms a reporter into a learned, and ingenious, and friendly personal opponent. If, instead of this, he rests satis- fied with what he considers a rapid conception of an author's meaning — with a sort of general notion of the scope and drift of a particular argumentation — and make no effort to enter into it as a matter of per- sonal investigation — he will receive but little real practical benefit from the best course of reading that Method and Objects of Law Reading, etc. 339 could be devised ; he will become one of those already- alluded to, who are " ever learning, and never able to come to the knowledge of the truth." Thus, then, let the student make a prudent selection of a course of reading, and steadily adhere to it — but in doing so, sedulously and perseveringly labor in the discipline of his mind : keeping in view this contem- poraneous exercise, never caring how severely, of his apprehension, his memory, and his judgment: fixing his mind's eye upon a splendid instance of the advant- ages conferred by early discipline upon a naturally fine intellect — Lord Mansfield, — of whom it is elo- quently said, that "he apprehended the facts with such clearness, retained every circumstance with such ease, and weighed the ingredients of equity in so just a balance, that one is at a loss whether to admire most, the quickness of his apprehension, the strength of his memory, or the soundness of his judgment." There occurs, in an excellent work on legal studies, such a vivid picture of the advocate destitute of a " clear and settled judgment," as is calculated to form an instructive finale to this chapter. " How would that advocate appear, who should stand up in a court of judicature, without having acquired a clear comprehension of the nature of his case, and of its various parts and circumstances : wandering from this to that part of his subject, unable to discern what part to produce and what part to retain ; fixing, by chance, upon some weak or dis- jointed member, and then, with an unmeaning solem- nity, dragging it forth as the main support of his 340 Introduction to Law Studies. cause ; discovering his mistake only by the impatience of his auditors, and covered with confusion at a sense of his inability to rectify it ! Unwilling, however, to terminate his efforts abruptly, he has recourse to his imagination — and this serves only to make his weak- ness the more conspicuous : his uncertainty increases ; he continues to heap words upon words without meaning or end ; now, in all the violence of anger, he declaims upon the injustice — hut of w/ia(, he cannot tell : now he would argue — but, like a man talking in his sleep, he has no single certain position on which to found his argument: now, he would complain — now, remonstrate — now, entreat: till, at length, his speech becomes a chaos, and nothing but his silence can restore him, and those whom he addresses, to regu- larity and the light."* * Raithby's Letters, p. 224, 225, 2d ed. Facility of Reference. 341 CHAPTER XV. How TO ACQUIRE A FACILITY OF REFERENCE. " Knowledge is of two kinds," said Dr. Johnson ; " we know a subject ourselves, or we know where we can find information upon it." This is especially applicable to the study and prac- tice of the law ; for, in the vast multiplicity of its topics, what memory can, especially in the early stages of study, pretend to a practical familiarity with a thou- sandth part of it ? A facility of reference will, in a great measure, compensate for this deficiency — and as the acquisition of that facility may certainly be expe- dited, it will be the author's endeavor, in this section, to offer a few little practical expedients and suggestions toward the advancement of so desirable an object. When a " case " is put into the hands of the young student, unless his tutor happen to be at hand to assist him, he will be often utterly at a loss in what direction to look for the law on the subject — and may possibly spend hours in turning over book after book, in the vain hope of lighting upon something "in point," Few things are so calculated to fret and dishearten a student, as frequent unsuccessful researches of this kind. Let, therefore, one of his earliest objects be to familiarize himself with the leading heads of law, so that, on reading over any statement of facts, he may 29* 342 Introduction to Law Studies. at least know in what quarter to look for information — as, Principal and Agent, Stoppage in Transitu, Tender, Set-off, Agreements, Bills of Exchange, Death of Parties, etc., as enumerated in the table of contents in any of the leading works of reference. He must make a practice of carefully running his eye over the chief and subdivisions, down to the very sections, and endeavor to retain as distinct an impres- sion as he can of the kind of matter to be found in each. When he has been led into a long and close investigation on any particular point, let him endeavor to bear in mind — so to speak — the traces of the country he has quitted, in order that, on a future visit, he may be able to find his way about more readily. Let him strive to recollect the trains of thought — the suggestions and associations which led him from step to step in his researches, till at length he discovered what he sought ; an effort this, which, constantly repeated, will not only serve to fix in his mind valuable information, but also sensibly improve his memory. When any statement of facts is laid before him' for an opinion, the student must, as he goes over it, strive to refer particular topics to their appropriate departments : e. g., " Sale of goods by sample, Principal's right as against agent, Admissions by agent," etc. This, per- haps, will be a somewhat intricate mercantile case respecting an agent's sale of goods by sample; in which the buyer disputes, utter alia, the right of the undisclosed principal to maintain an action, etc. Pos- sibly the pupil had, not long ago, occasion to go over the whole province of Principal and Agent law, and Facility of Reference. 343 recollects the precise spot where there is a little heap of decisions on the main point in his present case — the subsequent recognition of his agent's authority, by an undisclosed principal. Thither, therefore, he turns — finds a case — say Grojan v. Wade — underscored ; and, on turning to that case in Starkie's Reports, dis- covers the fruit of some previous researches, in the shape of four or five MS. notes of recent decisions — one of them exactly in point on the present occasion — and thus, it may be, further attention to the case is rendered unnecessary; inasmuch as all the seller's objections depended upon this one, which has been demonstrated to be untenable. If, however, our stu- dent be not pressed for time, he will make a point of considering the whole case, just as carefully as though he had not made any such discovery of a governing decision as that above mentioned ; for it must be a rule with him to omit no opportunity of thoroughly inves- tigating a case, of hunting about for authorities, and endeavoring to apply them to facts. This is the right way to get — a facility of reference ; and is it not preferable to the silly habit that some have of running — scared with the first sight of a case — to their tutor, with the hurried inquiry: "Where shall I get any thing about it?" Surely the tutor should reply, as did the mother of Sir William Jones to her splendid son, "Read, and you will know." " The best book of reference," justly observes the editor of Wynne's Eunomus, "is Comyn's Digest." With this great storehouse of law, the student must be at uncommon pains to familiarize himself; striving to 344 Introduction to Law Studies. know every chamber of it, every closet in every chamber, every shelf in every closet, and also the contents of every shelf — so that he may be able, as the saying is, to "find his way to it in the dark." Thus will he not only be able to refer at once to all the existing law, but be enabled duly to distribute the products of the current sittings in Banco — the new reports. It is impossible to speak in too high terms of this noble monument of the Lord Chief Baron's prodigious learning. " It is a production," says Chan- cellor Kent, " of vastly higher order and reputation than that of Viner and the best digest extant, upon the entire body of the law." " In this admirable col- lection," says Dr. Woodeson, " the usual method pur- sued of conveying the doctrine on any subject is to set down a general position, then to illustrate it by examples, and finally to restrain it by exceptions : all of which is done with remarkable clearness and con- ciseness of expression, and the information desired is seldom long sought after, or in vain." If the student would sit down, study, and draw up a kind of tabular view of any particular head of Comyn's Digest, — say that of " Action on the case for Defamation" — with a view of ascertaining the author's system and method of distribution, he would speedily be convinced of the justice of the eulogiums above cited, and be stimulated to a further and more minute investigation. There is, however, one little impediment to be found in the Lord Chief Baron's constant adoption of obsolete words for the headings of particular articles. Who would think, for instance. Facility of Reference. 345 of hunting for information concerning tithes, under the head of " Dismes ;" goods and chattels, under "Biens;" deeds, under "Fait;" highways, under "Chimin;" for the signification and construction of particular words and phrases, under " Parolsf" This Httle obstacle, however, may be soon surmounted by a little perseverance. There is, besides, an index verho- rum prefixed to the later editions, which will serve to guide the pupil, by the modern terms, to those more ancient, which head particular sections. One other suggestion is offered to the student, and it is reserved for the last, on account of its special importance. Let the student — or rather young practitioner — set himself down resolutely to the task of reading, with the utmost care, each new number of the Reports ; and after noting up every decision, i. e. minuting it on the margin of some previous case in the Reports, which it materially affects — either cor- roborating, overruling, or qualifying it — distribute their contents under their appropriate heads in any favorite text-book. 346 Introduction to Law Studies. CHAPTER XVI. How TO ACQUIRE READINESS AND ACCURACY IN THE Application of Legal Principles. If legal principles could be applied as easily as they may be acquired, there would be an end of the greatest difficulty which is experienced in prosecuting the legal profession. " Practice makes perfect," in this respect, as in every other; and should the student unfortu- nately not have the opportunity of seeing sufficient practice in chambers, he must make practice for him- self by imagining-cases of ordinary occurrence submit- ted to him for an opinion. Let us suppose him, for instance, to have carefully read and reflected upon the law of self-defense, as thus stated in Blackstone. "The first species of redress of private injuries, which is obtained by the act of the party himself, is the defense of one's self, or the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these, his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force ; and the breach of the peace which happens is chargeable upon him only who began the affi-ay." Let him now put such simple cases to himself as the following, and endeavor to apply to them the above principles, with Readiness and Accuracy. 347 as much precision as if his opinion were actually asked by a client. Suppose, while a man is riding on horseback, another should beat the horse, from which the rider is obliged to dismount for fear of being thrown ; would he be justified in horse-whipping the offender ? Or, suppose, that, while a gentleman and his wife were riding on horseback on the high road, a man were to commence violently shouting, obviously intending to alarm the lady's horse, and persisted in doing so, in spite of earnest remonstrance, till the horse began to rear and plunge violently ; would the gentleman be justified in riding him down, if he could not otherwise put a stop to such dangerous uproar? Would a man be justified in knocking down one whom he saw in the act of aiming a blow at a costly mirror or other article ? If one seeing, at a little distance, a man threatening to strike the former's little sister — were to rush up and strike the man, would he be liable to an action ? If a father were to come up the instant after his child had been struck by a man, and, in the frenzy of alarm and passion, were, without knowing whether his child had actually been struck, to knock down him who had struck it, would he be liable to an action ? Thus let him go on imagining cases occurring among husbands and wives, parents and children, masters and servants, and others — accustoming himself, in short, to the prompt application of legal principles, not only in such cases as those above instanced, but in all the little occurrences and transactions of business which 348 Introduction to Law Studies. might lead to litigation. Suppose, for instance, a tradesman who has undertaken to repair a chronometer by a particular day fail to complete the repairs by that day, and his customer calls for it, just before setting off for India ; can he insist on having his chronometer in its unfinished state, without paying the tradesman any thing — or can the latter insist upon being paid for the little that he has actually done ? Or suppose a man were to give another a check on his banker, which was not presented in time, would the banker be justified in paying it ? Or suppose a banker, or the holder of the bill, were to pay it before it is due ? A fertile fancy can never be at a loss for such means as these of exercising the mind in the application of legal principles, and thus preparing it for the ready and skillful discharge of actual business. Thus the student, if in right earnest, may, either when at chambers, or even while walking, whether alone, or in company with "like-minded friends," find " Books in the running brooks, Cases in stones, and — law in every thing! " Another expedient may be mentioned, easier, but not less useful, than the foregoing. Let the student, after having carefully mastered the details of a par- ticular case in the reports, frame variations of particu- lar circumstances, and cojisider what would have been the effect of such an altered state of facts. Let him imagine himself conducting such a case in court when it took an unexpected turn — would that turn have been of consequence or not? Introduce, suppress, vary particular facts ; will it signify ? Suppose the Readiness and Accuracy. 349 woman had married, at a particular moment — or a man become bankrupt in the midst of certain transac- tions — or one of several partners had retired or become insolvent — that a certain document had been missing — or a sentence omitted, or changed, etc. — what would have been the precise situation of the parties ? Take, for instance, the case of Carvalho v. Burn (4 B. & Adol. 382). A, who resided at Liverpool, was in the habit of making consignments of goods to B, his agent in South America, for sale ; on the faith of, and against which consignment, A drew bills proportioned to their amount, to be paid by the agent out of the proceeds — and the bills were negotiated by the in- ^dgrserhents of C, A's correspondent in London. Some m" the bills so indorsed were refused acceptance by B. On receiving information of this fact, C requested that A would order B, in case he did not pay his (A's) drafts, immediately to hand over to C's agent, such property as he had of A's, of an equivalent value to the bills that should not be paid by B, and A agreed to do so. Thus far all is plain sailing. Let the student, now imagine the death, or bankruptcy, of A, B, or C, either before or after the accepting or indorsing the bills — or before the consignments of goods — or otherwise vary the arrangements between the parties, and see what would then be their respective rights and liabilities. Let him, for instance, suppose that A, between the time of giving his order to transfer the goods, and that of the arrival of that order in South America, became bankrupt, — which was really the 30 350 Introduction to Law Studies. case, — what would be the consequence of such an event ? Did the bargain between A and C operate as an assignment of the property in A's goods, then held by his agent B ? Or did the goods continue to be A's property at the time of his bankruptcy, and conse- quently go to his assignees? Or suppose that B had, before the receipt of the order, sold the goods, and the order had been for so much of the proceeds as would cover the debt due to C ; would C have been, under these circumstances, entitled to the money ? There cannot be a better preparative than this for the student who meditates an early entrance into court. He will have been so accustomed, as it were ±0 take himself hy surprise, that he will be all the bet- ter prepared for the "chances of the war," — he will suffer no one else, unless succumbing to his vis major, in the shape of a harmful judge or opponent, to take him Iby surprise. If a judge suddenly propose to him an •ensnaring question, he will be ready and dextrous, while another would be posed, and either faintly stam- mer forth a ridiculous reply, or sink, as if suddenly •stupefied, into his seat. A small affair of this kind .once happened to the author. He had occasion, soon ■after commencing practice, to appear before a judge at chambers, and had arranged in his mind a " most ■neat and appropriate" statement of the case — when an ugly query, somewhat varying the aspect of facts, was started by his Lordship ; whether or not the author acquitted himself satisfactorily, he does not choose to state'; he well recollects blessing himself, ihowever, that he was not in open court, but in a Readiness and Accuracy. 351 dingy little chamber at Sergeant's Inn, and before a learned, but kind-hearted judge ! On returning to chambers, he happened to cast his eye upon a passage in a familiar text-book, that, had he but recollected it five minutes before, — why, he would have been all the better pleased. It is now the habit, to some extent to be deprecated, of the judges to interpose so frequently in the course of an argument, by suggesting questions, and putting cases, often very trying and dangerous to those who have not either had long experience, or have accus- tomed themselves to continuous reading and thought in private : and nothing is a more satisfactory test of legal ability than the readiness with which such sudden and unexpected objections are answered. If the train of a man's ideas is on these occasions altogether inter- rupted — it is clear, either that he is not sound and firm in his law, or lacks that clear-headedness, confi- dence and presence of mind which are essential to success. While, however, the student is anxious to acquire the habit of looking at facts in a legal point of view, he is cautioned against pushing it too far, and falling into a captious, quibbling humor. He must remember that there is a common sense view to be taken of even the most complicated facts — one which the judges themselves are always anxious to take and present to a jury. Medio tutissimus ibis. Many men are very successful at the bar, especially at Nisi Prius, merely through possessing this valuable faculty. 352 Introduction to Law Studies. CHAPTER XVII. Hints for Facilitating the Mastery of Com- plicated Cases. " Je veux parler seulement," says M. Renouard,* "de cette aptitude pratique qui d^couvre promptement le siege des difficult^, prend un parti sur leur solution, ^carte les circonstances ^trang^res et les accessoires inutiles, s'appuie ^ propos sur des axiomes gen^rale- ment admis, et sur des examples non contest^s, qui, sans poss^der parfaitement les sources de la doctrine, sait du moins y recourir sans embarras, et les consulter ;avec fruit. " Pour acqu^rir cette aptitude, et le degr^ de science qu'elle exige, I'usage des affaires est le supplement indispensable, des legons puisnes dans les ecoles, et ;m^me des meditations du cabinet. Cet apprentissage pratique est une preparation que rien ne saurait com- pletement remplacer, et qui doit n^cessairement pr^- c6der I'exercise de la profession d'avocat." Some minds have naturally a wonderful aptitude for mastering the most intricate combinations of facts — seeing at a glance their true bearings, and remember- ing them with accuracy for almost any length of time. This is a very rare and valuable quality in a lawyer — one which will enable him to discharge the most ardu- * Themis, IV. Mastery of Complicated Cases. 353 ous professional duties with ease and rapidity. Atten- tion and judicious exercise, however, will give a high degree of this power to even those who have long, and with reason, despaired of acquiring it — who have lamented the want of a clear and comprehensive intel- lect. He who is in this situation, and would better himself, must not only begin well, but "persevere in well doing ; " and that he may do this effectually, he is requested to attend to the following brief sugges- tions. Let the student address himself to any statement of facts, or arguments, either in the books or in actual business, with calmness and deliberation, — not per- mitting his mind to wander, or hurry over details even apparently the most insignificant. It requires much skill and experience to know what facts are, and are not, insignificant ; and the student must wait for some years before he undertakes such a decision — at first sight. Let him read attentively through the state- ment, from beginning to end ; and, in doing so, make any notes or marks |,he pleases in order to assist his recollection of what appears to be of leading import- ance. Then let him cast off his eye, and strive to go over the whole in his mind — a habit which will be attended with several advantages. It may teach him forcibly the frailty of his own powers — his indistinct- ness of apprehension, his feebleness of memory. Before he undertook this ordeal, he probably fancied himself in perfect possession of what he had read — that he retained a distinct and orderly recollection of the whole, when — alas, mortifying fact ! — he finds 30* 354 Introduction to Law Studies. himself, on being put to trial, utterly at fault ; scarce a trace clear — but all indistinctness, confusion and error. Is not this, then, calculated to shock him into strenuous efforts to remedy so serious and funda- mental a deficiency ? A second perusal will probably clear up many — a third, all obscurities : he will then have his case fully in his mind — so that he could undertake to state it even in open court, before judge and jury ; and having thus mastered the facts, he will not find much difficulty in applying to them the law. Let the student persevere in this course for a little time, and he will soon find how it has quickened and invigorated his powers. It will inure him to habits of patient investigation, accurate discrimination, tenacious retention, and decisive judgment. Six months' perse- verance will form this habit, and repetition will im- prove it to an extent he could scarcely have believed. He will be no longer under the distressing necessity of reading a thing, on perhaps the most urgent occa- sions, three or four times over, before he can take it in, each time letting slip more thsm before, — till he is fatigued, irritated, and confused, beyond the power of recovery, and has earned, perhaps, the ruinous charac- ter of " a muddle-headed fellow." Discrimination must be used in choosing the sub- jects of such exercises as these. Those cases must be first selected which are comparatively short and sim- ple, and gradually those more difficult and complex, or the student will get discouraged from going on with this wholesome process. Imagine a young and volatile, but anxious, student set to work upon such Mastery of Complicated Cases. 355 cases as are to be found in Bankruptcy and Partner- ship ! Cases, too, which are not prepared beforehand for investigation, with their perplexing superfluities stripped off, by the experienced hand of a reporter! Let not the student be too anxious to take in the whole details of his heavier cases at once. The effort may be too great for his unpracticed powers. Let him split them into parts, and master each separately before proceeding to the other, or considering their general effect in combination. Let the student, lastly, never think of looking for the law applicable to a case, before he has obtained this accurate and thorough knowledge of the facts. How can he come to correct conclusions from prem- ises only half understood or misunderstood ? A single circumstance in a long chain of facts, lost sight of, or misapprehended, will often invalidate all his reason- ings, insuring vexation to himself and defeat to his client. " First catch your fish," says the astute Mrs. Glasse, "and then cook it;" and so say we to the student: first fix the facts in your mind, and then "deal with them according to law." 356 Introduction to- Law Studies. CHAPTER XVIII. How TO Promote Distinctness of Thought AND Recollection. This is a quality essential, of course, to the success- ful study of any science; but there are reasons why the want of it is peculiarly felt by legal students, and why its attainment is a matter of great difficulty. It is certainly a rarer quality than is generally imagined — and he is often most signally destitute of it, who is least conscious of the fact. The very nature of legal science contributes to this — for its general principles, though their deep foundations are reason and justice, are fettered and restricted by such subtle distinctions — they admit of such endless exceptions and modifi- cations, as often to prevent any thing, at least in the case of beginners, like a clear and distinct knowledge of their proper character and functions. The science of the law thus expands into a vast series of details, barely distinguishable from one another by the most practiced powers of discrimination. The facts, again, — often imperfectly stated, — are always varying, fre- quently only by shades of difference scarcely percepti- ble ; being sometimes so perplexed and intricate, that, unless extraordinary effort be made, the mind loses sight of the governing facts — the leading details — and floats away amid a haze of minor circumstances. This Distinctness of Thought, etc. 357 requisite accuracy of discrimination the student is, too often, indisposed to give, chiefly because he is distracted and confounded with the vast number, variety and difficulty of the topics he has to deal with — of the knowledge ever to be yet acquired, and is apt to make eager and hasty efforts to " get over the ground " — without pausing to reflect how, or adverting to the possibility of his having to traverse it again. " They," says a quaint, shrewd writer, "that read and write cursim et properantes are like pilgrims, who have many hosts and few friends — read much and understand little." Such an one is, perhaps, inclined to rest sat- isfied with a mere glance at his subject, if he can by that means get rid of the individual emergency — and procrastinates thus from day to day, from week to week, from year to year, the task of going a second time over the ground, in order to acquire a better knowledge of it. He may be compared to a glutton, whose object is quantity, not quality — the greatest quantity devoured in the shortest time, and may be addressed in the words of Bishop Hall : " How much better it is to refresh yourselfe with many competent meales, than to buy one day's gluttony with the fast of many?" Thus the student may eat of fifty dishes without appreciating the flavor, or receiving nourishment from one ; and is, besides, bye and bye, laid up with fits of indigestion, which at length recur so often as to impair both appetite and health. There is, in this respect, no difference between physical and intellectual indiges- tion. 358 Introduction to Law Studies. The necessity, too, which has been elsewhere alluded to, of rapidly passing from one subject to another, in actual business, is another fertile source of indistinct- ness and superficiality. Students and young practi- tioners, not calm and confident in their own resources — not sufficiently stored with accurate and well- arranged information, nevertheless contrive, somehow, to find themselves in perpetual bustling activity — ever " up and doing." They do httle more, for instance, than hastily cast their eye over the marginal abstracts of the new Reports, even of the most important decis- ions — or deposit them, it may be, in some text-book, i-esolving to recur to them at a more "convenient season " — relying upon finding them there when wanted, ready for use ; and making thus no effort to incorporate each new ingredient with the existing stock of their knowledge. Can it be wondered at that such people, "lawyers in haste," are always confused and overwhelmed ? That a perpetual series of such slov- enly and superficial acquisitions at once impairs their powers, and vitiates their knowledge — spreading a thick haze over every thing? Such persons have a faint recollection, on a question being asked which requires a prompt and accurate answer, of a particular decision — they " know there is such an one" — but they are " not quite sure what was the precise point decided " — " satisfied it was something — nay, a good deal — like the present," etc., etc. : and if they cannot succeed in discovering it at the moment, will perchance blurt out a confident answer, as if from sudden recol- lection of the substance of the decision — and thus. Distinctness of Thought, etc. 359 perhaps, very seriously mislead a client. Those who will not strenuously and perseveringly cultivate this inti- mate knowledge and accurate recollection of what they have read are apt to fall into very mortifying dilemmas. But a short time ago, a barrister cited a case in court, very confidently, as deciding — so and so : but, on the judge asking him to point out the case, and hand up the report, he found, to his infinite mortification and alarm, that he had represented exactly the reverse of the case referred to. The judge looked somewhat distrustfully on the embarrassed, hasty, but really con- scientious, counsel, admitted his explanation, but cau- tioned him to look another time, before he leaped ! Now let the student keep this little instance in view while dealing with the slippery matters of law. Surely five leading cases, recollected with accuracy, are worth five hundred imperfectly understood.* Attentive read- ing, frequent reflection upon whatever is read, and application of it to business, are the only guarantees of distinctness of thought and recollection. " As reason," says Lord Coke, " is the soul of law, it cannot be said that we KNOW the law, until we apprehend the reason of the law ; that is, when we bring the reason of the law so to our own reason, that we perfectly understand it as our own ; and then, and never before, we have an excellent and inseparable property and ownership therein so as we can neither lose it, nor any man take it from us ; and we shall be thereby directed very much, the learning of the law being chained together in many " " One book," says Phillips, "well digested, is better than ten hast- ily slobbered over." Stu. Leg. Ra. i88. 360 Introduction to Law Studies. other cases. But if, by his study and industry, the student make not the reason of the law HIS OWN, it is not possible for him to retain it in memory ; for, though a man can tell the law, yet, if he know not the reason thereof, he will soon forget his superficial knowl- edge ; but when he findeth the right reason of the law, and so bringeth it to his natural reason, that he com- prehendeth it as his own, this will not only serve him for the understanding of the particular case, but of many others ; for cognitio legis est copulata et compli- cata ; this knowledge will long remain with him." Let the student, on discovering any leading case, devote his utmost efforts to the mastery of it, in all its particulars — and make frequent reference to it, in order to test the accuracy of his recollection of it. Let him keep a list of such cases always beside him, and fre- quently inquire of himself thus : " Dawes v. Peck, 8 T, R. Carrier, consignor and consignee — general prin- ciple, that the latter must sue carrier for loss." " Lick- barrow V. Mason, 2 T. R. No right of stoppage in transitu as against bona fide assignee of consignee," etc., etc. The great advantage of this will be very soon discovered by the student. If he know a leading case well, all he has to do, on an emergency, is to turn to it in the list of cases in some approved treatise or digest, and he will find it surrounded by all its kindred and more recent cases. Pursue a similar course with reference to statutes. Select those which are of leading practical importance, such as the statute of Wills, of Uses, of Frauds ; and having carefully weighed all the most material parts of them, and considered the ques- Distinctness of Thought, etc. 361 tions that have been raised, and interpretations that have been put upon them, minute down in a note book, the substance of each section, as nearly as possible in the words of the act. This will require, however, the very greatest care. Very serious omissions have been made even by those most skilled in abridging and condensing statutes. If any young reader should consider such labors as these excessive and unnecessary, let him try to state accurately the substance of some of those cases and statutes with the names and titles of which he is most familiar — and he may be less disposed to undervalue the importance of the hints now offered. It is impos- sible here to do more than thus call the student's attention to the necessity of uniform vigilance and circumspection, in order that he may early acquire the habit of reading and thinking with calmness and deliberation. "This study being built upon the per- fection of reason, requires a constant and serious meditation ; and what we apprehend altius quotidiana meditatione figendum est, that being fastened in our minds, and the reason thereof fully considered, habitus fiat, quod est impetus — that bringing it within the verge of his own reason, he may upon the least sum- mons, find the result thereof" * * Stud. Leg. Ra. pp. 53-54. 31 262 Introduction to Law Studies, CHAPTER XIX. Importance of Retaining the Names of Lead- ing Cases. A ready recollection of the names of cases is a capital consideration with the practical lawyer. What is meant by this is, not the recollection of the name, only, of an important case, and the volume of the Reports where it is to be found — but of the sub- stance of the decision ; so that one may be able, at a moment's notice, aptly to cite it in court, or elsewhere. The name of the case and the number of the volume will suffice — as the page can of course be easily found, without burthening the memory with it. Sup- pose the question under consideration is one concern- ing the distinction between a penalty, or liquidated damages — the experienced lawyer instantly thinks of Kemble v. Farren (6 Bingham), a comparatively recent decision, in which all the older ones are discussed, and on the margin of which, perhaps, he discovers his own MS. notes of several approximating and later cases. He thus gets at once to the heart of his subject — le siege des difficultes — and speedily and satisfactorily disposes of it. Readiness in thus recollecting and quoting cases is not a less showy than valuable accomplishment — and is therefore sometimes attempted by those who are Names of Leading Cases. 363 quite unequal to the task. They can blurt out, confi- dently enough, perhaps, the name of the case, and the right volume of the Report; but either wholly forget, or recollect indistinctly, or misunderstand and consequently misrepresent, the point of the decision. " And here," says Mr. Raithby, speaking on the same topic, " it must be obvious, that the exercise just now recommended, will be particularly necessary to the legal student, who, in the course of his future practice, cannot but have frequent occasions for the use of his memory in the statement of some case or opinion, recollected at the moment, by which his argument may be supported, or his positions enforced with a peculiar brilliancy of effect and illustration. No after- labor can supply adequately the want of this particu- lar power of memory. A man may fill the back of his brief with extracts, quotations, and cases, and yet omit one which would be more serviceable than all the rest ; could he but recollect this, at the very moment, it would serve him in a most essential manner ; but it is entirely forgotten, or remembered so imperfectly that the recital of it, should it be attempted, would most probably do his argument mischief rather than good." An early and persevering attempt to form this habit will soon repay the young lawyer, by its prodigiously abridging labor and preventing loss of time in subsequent researches. Fifty or sixty leading cases, thoroughly understood and distinctly recollected, will be found of incalculable value in practice — serv- ing as so many sure landmarks placed upon the track- less wilds of law ; — and why should not the number 364 Introduction to Law Studies. be doubled, or even trebled ? What pains can be too great to secure such a result ? The author was standing beside the seat of the King's Counsel, in the Court of King's Bench, on the day after he had entered an Inn of Court — when a young barrister came and asked the opinion of Mr. (afterward Sir John) Campbell on a somewhat knotty "case" he had to answer that day. Mr. Campbell rose to re-examine a witness, as his young friend con- cluded his statement; and in rising, hastily whispered, "Your case is that of v. , 4 Term Reports." The latter called for a copy of the volume referred to — glanced over the marginal abstract of the case quoted — made a minute of it, and left the court — his puzzled countenance cleared up, doubtless to earn his " two guineas in a trice." This section, which met with the strongly expressed concurrence of the author's friend, the late Mr. John William Smith, suggested to him the idea of his " Selection of Leading Cases " ; a work which at once took its place in legal literature, and has kept it ever since, deservedly; being quoted constantly by both bench and bar. Stating Facts and Arguments. 365 CHAPTER XX. The Art of Effectively Stating, viva voce, Facts and Arguments. " Now I would give a thousand pounds," said, with a sigh, a very learned and gifted friend to the author, after listening to an harangue at a tavern meeting delivered by a mediocre mob orator — " now I would give a thousand pounds to be able to make such a clear and connected extemporary statement of facts as that fellow who has just done speaking. What a farce it was for me to think of going to the Bar ! " The author made no reply, for he was too sensible of the justice of the observation. Acquire this habit, good student, if you have it not — anxiously cultivate it if you have, — or save the stamps and other expenses of a call to the bar — or sell your wig and gown if you have precipitately purchased them. How lamentable is it to see a man of great talent and learning, unable to acquit himself even creditably in this respect — possibly on the most trivial occasions rising embarrassed — confused — stut- tering and stammering, uttering "vain and idle repeti- tions," with the agonizing accompaniments- of "a — a — a," and sitting down overwhelmed with vexation and disappointment ! However clear may be a man's conceptions, however consecutive his thoughts, how- 31* 366 Introduction to Law Studies. ever thorough and extensive his knowledge, he may yet exhibit the sorry spectacle above described, unless he be either naturally gifted with powers of eloquence, or have struggled early and successfully to supply his natural deficiencies. "There is an important dis- tinction," remarks Dugald Stewart, "between the intellectual habits of men of speculation, and of action. The latter, who are under a necessity of thinking and deciding on the spur of the occasion, are led to cultivate, as much as possible, a quickness in their mental operations ; and sometimes acquire it in so great a degree, that their judgments seem almost intuitive." Bearing in mind, then, this observation, let it be the student's first step towards the attainment of so desirable an object as that now under considera- tion, to become a practical man — to accustom him- self to the sudden marshaling of his thoughts for action. Let him often think aloud — often state sud- denly the substance of what has been engaging his attention, and this under the impression that he is doing it publicly. The more vividly he can imagine himself in such circumstances — can people his room with imaginary auditors — the better, the more vigor- ous will be his efforts to acquit himself well. Let him imagine his judge severe, his audience learned and critical ; this will stimulate him to a rigid adherence to his subject. He will aim at as close and succinct a statement as possible of facts and reasonings, turning not for a moment to the right or the left, or incum- bering himself with needless details. Let him reso- lutely reject all surplusage of thought or expression — Stating Facts and Arguments. 367 keeping his object constantly in view, and going direct to it. Nothing but this will protect him hereafter from the painful and disheartening mischance of sud- denly losing, when engaged in public, the connection of his thoughts — or, at all events, put him in the way of quickly recovering it. The student must learn not only to think, but to express himself, consecutively. He must not for a moment forget the object with which he set out, or cause his hearers to forget it, by wandering into irrelevant matter, or undue amplifica- tion. Let him, therefore, in such solitary exercita- tions as those now recommended, be as much in earnest as though he were actually engaged in public debate, suffering no incident — no sudden sugges- tion — no momentary interruption — to put him off his guard. Having thus, as it were, broken the ice, let him next practice similarly before some judicious friend, who will try him with a few interruptions — press him with questions — check his redundancies, and recall him from digressions. This will be found an invalua- ble expedient. His next step may be to enter one of the legal debating societies. Every institution may be abused — and undoubtedly those in question are often so ; but they will be found admirably adapted to further the interests of those who resort to them with fitting motives and objects, and in a proper manner. Those of them with which the author has been acquainted have been really miniature sittings in Banco, and excellently calculated to discipline a legal speaker. A legal question is proposed for discussion on a given evening, of which due notice is given ; two 368 Introduction to Law Studies. affirmantes and two negantes are appointed, who open the discussion — and then any other member of the society may follow that pleases ; it being the business of the first speaker to reply generally, and of the president to sum up the arguments of the evening. Some of the most distinguished members of the bar have been indebted for much of their success to the instruction derived from these interesting and instruct ive associations. Of Lord Mansfield, it is said by Mr Butler " that, while he was a student in the Temple, he and some other students had regular meetings to discuss legal questions ; that they prepared their argu- ments with great care ; and that he afterwards found many of them useful to him, not only at the bar, but upon the bench. * It may have been chiefly owing to the early attention bestowed by Lord Mansfield * Hor. Subsec. pp. 201, 2. — "There are many reasons," says Roger North, " that demonstrate the use of society, in the study of the law — 1st. Regulating mistakes; oftentimes a man shall read and go away with a sense clean contrary to the book, and he shall be as confident as if he were in the right : this his companion shall observe, and, sending him to the book, rectify his mistake. 2d. Confirming what he has read; for that which was confused in the memory, by rehearsing will clear up and become distinct, and so more thoroughly understood and remem- bered. 3d. Aptness to speak ; for a man may be possessed of a book- case, and think he has it ad unguem throughout, and yet when he offer at it shall find himself at a loss, and his words will not be right and be proper, or perhaps too many, and his expression confused; when he has once talked his case over, and his company have tossed it a little to and fro, then he shall utter it more readily and with fewer words, and much more force. Lastly, the example of others, and learning from them many things which would not have been otherwise known. In fine, the advantages of a fit society are, to a student, superior to all others put together. Study of the Laws, pp. 30, 31. Stating Facts and Arguments. 369 upon these matters, that he acquired the art which has been so well described by Mr. Butler in a subsequent portion of his Sketch : " He excelled in the statement of a case. One of the first orators of the present age said of it, that 'it was of itself worth the argument of any other man.' He divested it of all unnecessary circumstances : brought together every circumstance of importance; and these he placed in so striking a point of view, and connected them by observations so powerful, but which appeared to rise so naturally from the facts themselves, that frequently the hearer was convinced before the argument was opened. When he came to the argu- ment he showed equal ability — but it was a mode of argument almost peculiar to himself. His statement of the case predisposed the hearers to fall into the very train of thought he wished them to take when they should come to consider the argument. Through this he accompanied them, leading them insensibly to every observation favorable to the conclusion he wished them to draw, and diverting every objection to it, but all the while keeping himself concealed ; so that the hearers thought they formed their opinions in consequence of the powers and workings of their own minds, when, in fact, it was the effect of the most subtle argumenta- tion and the most refined dialectic." We cannot conclude this section better than in the words of those ancient worthies. Coke, Fulbeck and Phillips. "The next thing to be observed," quoth Coke, "by our student is conference about those things that he 370 Introduction to Law Studies. reads and writes. Reading without hearing is dark and irksome ; hearing without reading is slippery and uncertain ; neither of them yield seasonable fruit with- out conference." "Students," said Mr. Fulbeck, " should not do amiss, if, at certain times, they meet among themselves, and do propose such things as they have heard or read, by that means to be assured of the opinion of others in those matters. By this means they may be brought better to understand those things — one, perhaps, seeing and giving a reason which the other is not aware of; and, if he misapprehend a point of law, the other may instruct him therein. Hereby are they likewise brought more firmly to retain in memory the things that they have heard or read. " Often conference, and private debating of points of law, is of great advantage ; for thereby are the wit, the memory, and the tongue very much furthered and holpen, and a man is made more ready and bold for public matters ; and the truth, which is the work of study, doth more easily appear. And when the mind by long reading is fraught with many thoughts, the wit and the understanding do clarifie and breake up in the communicating and discoursing with another, — he tosseth his thoughts more easily, and marshaleth them more orderly, — he seeth how they look when they are turned into words. Finally, he waxeth wiser than himself, and getteth more by an hour's discourse than a day's reading. It was well said by Themistocles to the King of Persia, that speech was like cloth of arras, opened and put abroad, whereby the imagery doth appear in figures ; whereas in thoughts they be Stating Facts and Arguments. 371 but as in a pack. Nay, of such exceeding advantage it is, that a man (saith Lord Bacon) had better relate himself to a statue or picture, than to suffer his thoughts to pass in smother; for he learneth of himself, and bringeth his own thoughts to light, and whetteth his wit as against a stone, which itself cuts not."* *Stu. Leg. Ra. pp. 182-4. 372 Introduction to Law Studies. CHAPTER XXI. The Reports — Reading of, and Exercises upon. Whether a continuous perusal of the Reports should be attempted at all — and if so, whether the pupil should commence with the old ones, or read from the latest up to the old ones — is a question which need not long occupy our attention. There is such a pro- digious amount of intricate and obsolete law in all the old reports, including even Coke, Plowden and Saun- ders, as renders it eminently unadvisable for •the student to attempt a continuous perusal of them. It would be calculated only to bewilder, mislead and distract him from those practical studies to which chamber tuition will incessantly call his attention. There is, besides, something proverbially repulsive in the form and structure of our early reports ; which, to say nothing of their dreary black letter, Norman French, and Dog- Latin, are stuffed with all manner of obscure pedantries, scholastic as well as legal, involving the simplest points in endless circumlocutions and use- less subtleties. "The ancient reporters," says Chan- cellor Kent, " are going very fast, not only out of use, but out of date, and almost out of recollection, yet cannot be entirely neglected. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, The Reports. 373 most correct exposition of the law, and the most judicious appHcation of abstract and eternal principles of right to the requirements of property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age." Perhaps, therefore, the student, if desirous of a systematic study of the reports, cannot do better than adopt the suggestions of Mr. Raithby, and read from the latest reporters upwards. " In reading the reports," he observes, " I cannot help thinking you will find it most convenient to begin with the latest, referring, as you read, to the earlier cases, as they are cited and commented upon in the judgments of the case you are reading, always making a note of reference from the earlier to the later cases. " The first thing to attend to in this branch of your reading is, a comprehension of the facts of the case; and I think it may be stated, as a general rule, that any report that does not present a clear and succinct statement of the facts on which the point for decision arises may be passed over; in the next place, read attentively the judgments of the court; and, lastly, such parts of the arguments of counsel as are com- mented upon by the court, and no other, except in a few instances, perhaps, for the sake of elucidation ; for you will soon find your reading so voluminous as to demand the greatest attention, not less to the expense of time than of money. " You will never consider your reading of any par- ticular case complete, until you have also read and understood, and noted in the proper place, not only 32 374 Introduction to Law Studies. that particular case, but the statutes and cases referred to by the court in the judgment ; and I should think you would find it useful if, after having made yourself thoroughly acquainted with the facts of any given case, and before you proceeded to judgment, you were now and then to compose an argument, either extemporaneous or written, and compare it with the arguments advanced by the counsel, but particularly with the judgment of the court. By this method you will have a chance of acquiring legal views, and a course of legal reasoning, which you will find in many instances to be essentially different from the common notions of mankind, and for want of which, many men of superior understanding have failed at the bar." Every case in the current number of the reports amust, of course, be read over with care proportioned to its importance; and it would be highly advanta- geous if the student were to associate with himself, iin his task, some steady, intelligent friend. Their •mutual suggestions would be both interesting and instructive. It is of the utmost importance that he should thus become accurately acquainted with the new decisions, which often effect very serious •alterations, and of which it might be very dangerous 'to remain ignorant. This observation is at present of ■particular consequence, taken up as the courts are ■with the construction of many new statutes and rules, -entirely remodeling the law of practice, pleading, and -evidence. If the student be pressed for time, let him -content himself with reading over the statement of "facts, the questions arising out of it, and the leading The Reports. 375 judgment ; but. he must not lightly omit perusing the arguments of counsel. He must also cast a careful eye over the short abstract of the pleadings which is often prefixed to the report; and if he find in them any thing worthy of remembrance, let him make a note of it for future use. He will often, by these means, find most timely and valuable assistance in his own practice. One hint more may be offered on this part of the sub- ject — that the student should guard against an implicit reliance upon the marginal abstracts of the reporters. Learned and experienced though they many of them be, it is not to be expected that, in the very difficult task of extracting the essence of a long and intricate case, often with very little time at their disposal, they should escape sometimes very serious errors. The student would find it an admirable exercise to endeavor to frame his own marginal abstract of a case, and then compare it with that of the reporter. A little practice of this kind would soon enable him to detect the points of a case, to seize upon its true bearings ; and this, as we have already seen, is one of the most distinguishing characteristics of what may be termed a judicial mind. The student should, how- ever, not only thus read the reports, but should frame exercises upon them. Let him take a particular case, either in the older or more recent reports, and copy out the statement of facts with which it commences ; carefully abstaining from reading the marginal abstract, the arguments of counsel, or the judgments. Let him consider this as a case prepared originally for his own examination, and do his best. Let him rely upon 376 Introduction to Law Studies. it that his case is admirably stated — not a word want- ing or thrown away, not a fact redundant or defi- cient — in short, there is every thing necessary to conduct him to a correct conclusion. If he cannot master it — if he feel himself at sea — that he cannot, after due diligence, discover the authorities, let him, as it were, take the corks ; that is, let him copy from the bottom of the page the references to the cases cited by counsel. Having consulted and carefully consid- ered these, let him read the arguments of the counsel, to see how they used the authorities he has been examining. He must then close the book, and, after due consideration, write his opinion upon the whole case. He may then turn to the report, and read the opinions of the judges, where he will observe their masterly way of dealing with the case ; the brevity, •discrimination, acuteness, and learning they exhibited ! !By these means, our student makes himself the pupil 'of the judges themselves ; the best of their labors, and those of experienced and skillful counsel, are his ; he is early accustomed to the best mode of legal investi- igation; he has ever before his eyes the finest models ■ of legal reasoning. Thus he will see exactly where and how far he strayed — his mischoice and misuse of the authorities. Thus will he be first driven to his own resources; then he may gradually enlighten himself by the hints and 'arguments of counsel ; and, finally, be corrected or corroborated by judicial wisdom. Surely this is a course worth pursuing! Is it not worth a little labor ? Is it not calculated to rouse his attention, and keep up his interest? If he will but The Reports. 377 give this scheme a fair trial, he will not regret having listened to the suggestion.* * Rufus Choate has left the following record of the plan of study pursued by him for the greater portion of his life : " Let me record," says he, " a most happy method of legal study, by which I believe and feel that I am reviving my love of the law ; enlarg- ing my knowledge of it, and fitting myself, according to the precepts of the masters, for its forensic discussion. I can find, and have gen- erally been able to find, an hour or two for legal study beyond and beside cases already under investigation. That time and that reading I have lost — no matter how. I have adopted the plan of taking a volume of Massachusetts Reports and of making a full brief of an argument on every question in every case, examining all authorities, finding others, and carefully composing an argument as well reasoned, as well expressed, as if I were going to-morrow to submit it to a bench of the first of jurists. At the completion of each argument, I arrange the propositions investigated in my legal commonplace-book, and index them. Already I remark renewed interest in legal investigations, renewed power of recalling, arranging and adding to old acquisitions, increased activity and attention of mind, more thought, more effect, a deeper image on the memory, growing facility of expression. I confess delight, too, in adapting thus the lessons of the great teachers of rhetoric to the study of the law and of legal eloquence." T. 32* 3^8 Introduction to Law Studies. CHAPTER XXII. Conduct in Chambers. Much judgment is necessary in selecting the tutor in whose chambers the pupil must be introduced to the practical study of the profession. The best person to consult with before taking such a step is some expe- rienced solicitor or barrister, who is familiarly acquainted with the various members of the profession, and can state, or easily ascertain, which of them is the most desirable as a tutor. It must be inquired of such an one-: "Is the gentleman you name one of competent learning ? accessible ? affable ? capable of communicat- ing his knowledge ? Has he business ? " And with reference to this last particular, the student should be as careful to avoid engaging with a gentleman who has a very large business, as with one who has none at all. 'Of the two, indeed, the latter is cczteris paribus, pref- 'Crable; for legal studies m.ust be commenced with a due leisureliness. A sprinkling of business is, however, if not absolutely necessary, eminently desirable. Ob- serve, again, that it is not desirable for the student to commence with a pleader whose chambers are crammed with pupils ; for there are several who have six, eight, or even twelve pupils. One or two will be as great an assistance to an industrious student, as more are likely to be a hindrance. It will be extremely difficult to Conduct in Chambers. ' ' 379 compose his mind to calm study in a crowded pupil room, among, possibly, gay and jovial fellow pupils, whose intentions and acquirements are very different, and amid the hurry-scurry of great business. If the student select a tutor who has one or two other pupils, he should by all means encourage the discussion of legal questions with them — an invaluable auxiliary, if it be not pushed to excess so as to interfere with private study, or attention to business — and do not engender a noisy, captious, disputatious humor, which is, of all things, to be shunned. If the student be fortunate in his companions — if they prove steady and industrious — he will derive the utmost benefit from their co-operation. - Let the student attend carefully to the business that is put into his hands, and on no pretense suffer himself to fall into habits of haste and inattention. Whatever is put into his hands, let him set about instantly and heartily. He must not obstinately attempt to master it without assistance, by poring over it till his patience is exhausted, his mind confused, and himself disheart- ened. If a reasonable effort fail the student, let him go at once to his tutor, and ask for assistance. Let him not, however, go to the other extreme, and run to ask questions at every trumpery difficulty without having given himself time to think on it. What is he to do hereafter in the emergencies of actual business — what will become of his faculties, if every opportunity of exercising them is to be thus shirked ? The student must never lose sight of the necessity of cultivating a spirit of self-reliance. In a year or two he will be 38o Introduction to Law Studies, called upon to transact business upon his own account — his own unaided responsibility — when he will have no tutor to run to, but will be in the presence of his eager and anxious client. Let him keep this consideration ever in view; let him imagine himself engaged upon his own account, remembering that his own clients will, in a very short time, commit themselves — their char- acters and properties, and those of their clients — to his management. Considerations of this kind will be a salutary stimulus to exertion. Sweet, too, is the difficulty that is fairly mastered by a man's own efforts ! Whether, therefore, it be a " case " or a pleading that puzzles him, let the student work it well ; look at the facts in every way ; turn to his digest ; cast about in his mind; and if, after all, compelled to call in the assistance of his pleader, let him put his questions well to him. Before he goes, let him arrange, in his own mind, what is the precise difficulty he wishes solved ; and let that be put briefly and succinctly. Let it be framed in as abstract terms as possible. Let not the tutor be plagued with a tiresome, bungling recital of circumstances — or even forced to read over the whole case, in order to ascertain for his pupil the particulaj- difficulty — except, of course, in cases where that con- sists wholly in the very combination of the circumstances themselves. The case, for instance, may be of this kind. A tenant, being in arrear with a quarter's rent, applied to his landlord for time to pay it ; and, after a good deal of negotiation, in the course of which another quarter elapsed, the landlord agreed to take a promis- sory note for all the rent due, and it was accordingly Conduct in Chambers. < ■■■ 381 given. Not being paid when due, the landlord dis- trained, and the tenant is now anxious to know whether his landlord had a right to distrain for the rent in respect of which he had taken the promissory note, instead of pursuing his remedy on the security he had agreed to take. Possibly, now, the pleader has to hear the whole case, — mixed up with much superfluous matter; stated, or, at most, an imperfect epitome, which makes it necessary for him to cast his eye over the statement. How much better, now, would it be to answer the question, " Well, what's the matter now ? " with something which would show that a little reflec- tion had been exercised, as — " Pray, can a landlord distrain for rent in respect of which he has taken a bill or note, if it be dishonored ? " Ei sic de similibus. Few things indicate, more readily and decisively than these, the knowledge and capacities of pupils. When a question has been thus distinctly put, let the student take care to understand distinctly the answer. Do not run off " like a hasty servant, that goes away posting without his errand" — with only half an answer, or none at all — but understand precisely the solution that has been given of the difficulty. Rather than go away without it, put the pleader to the trouble of repeating it even several times. It is advisable, also, for the pupil to copy into a note-book the chief opin- ions given by his tutor, prefixing to them a brief sum- mary of the facts of the case — and to make a point of frequently reading them over, and referring to the authorities cited. Merely copying them out, and never again referring to them, is an utter waste of time. 382 :, Introduction to Law Studies. Another practical hint may be urged upon the young pupil in a pleader's chambers ; to avoid the folly into which many fall, of ambitiously addressing themselves, principally or exclusively, to the more difficult and "special" kind of business in chambers. Let him, on the contrary, for a long time, seize the apparently humbler, but infinitely more valuable, class of papers, constituting the ordinary run of business, and acquire a thorough knowledge of the structure of the ordinary pleadings, particularly noting the fads to which they are applicable, and which constitute three-fourths of the ordinary transactions of life occasioning litigation. One of the most consummate pleaders ever at the bar assured the author, that he adopted this method when a pupil at chambers with an eminent pleader. " I used to draw," said he, " all the little common things, and left the long troublesome special ones to my compan- ions; yet when their drafts, etc., had been finally settled, I used to read them over very carefully before they were delivered out. All my knowledge of law I owe to having spent my only year of pupilage in this way." So often does a student sit, as it were, watch- ing for a high wave of interest or importance to rise above the surface of ordinary routine, while the great undercurrent of business is gliding away, unregarded, through the fixed and well settled channels of ordinary forms; the proper application of them to the facts of a case often involving considerable knowledge and expe- rience. Thus the prudent pupil may possibly, but very far from probably, be able to do that pretty well, which he may not be called to do above a dozen times in his Conduct in Chambers. 383 life ; and be perplexed and confounded by that which might have constituted, had he been qualified for it, his daily business. The student must, finally, discourage his acquaint- ances calling upon him during business hours. They are then little else than gad-flies ; tempters, who pre- vent a goodly day's work, by holding out the bait of visiting or sight-seeing. No tutor will thank a pupil for filling his rooms with idlers and hangers-on. Ver- bum sapienti. In short, let the student attend at the place of busi- ness for the sole purpose of business ; bearing in mind the advice given by Lord Chief Justice Wilmot to his son: "To whatever figure in the dial of business the finger points, you must invariably keep your eye upon it ; all your studies, and applications, and habits, must lead toward it." 384 Introduction to Law Studies. CHAPTER XXIII. Going down to Court. The student must not think of going down fre- quently to the courts, till he is in at least the second or third year of his pupilage ; for every day devoted to this purpose is lost to all others.* His object in going thither will be, of course, to watch the ultimate working of the principles and practice which he is learning in chambers, so that he may see the practical * "Now I observe two errors," says Roger North, "in the direction of students to this matter: 1st, that they go to the courts too soon; 2d, that they attend at the wrong place, ist. What the advantage is by attending at court. It is certain that more law is to be gathered by reading than at court, and if it were not for practice, it were better not to come there, but to take the cases resolved, that are fit to be known, from report of others, and employ the morning, which is the prime of their time, in their chamber, reading and commonplacing. Now it is usual, after a year or two's residence in the inns of court, for all students to crowd for places in the King's Bench Court, when they are raw and scarce capable of observing any thing materially, for that requires some competent knowledge; and the bad consequence is that it makes them pert and forward, and apt to press to the bar when they are not half students ; and that is the downfall of more young lawyers than all other errors and neglects whatever. For this reason, I would not have any lose time from their studies after this manner, till after four or five years' study, and two years afore they come to the bar, which should not be before seven of study, is more than enough, espe- cially when, to get a place, they must be very early and idle about, or worse, till the court sits, and then with little more profit that such may expect, that come only to hear news." Study of tlie Laws, pp. 33, 34. Going down to Court. 385 commencement, prosecution, and termination of an action, and be thus the better able to apprehend the real scope and tendency of chamber practice. It is a kind of loom ; at one part of the machine, the student sees the raw material disposed for the operation of weaving, apparently all disorder and complexity, but making its appearance at the other, woven into uniform and beautiful texture. It is quitting the process, to look at the result ; and by this means will be obtained the distinctest view of the connection between the parts and the whole of the legal system. As soon, therefore, as the student has gained a pretty extensive insight into the method of transacting chamber business, the working of pleading, evidence and practice, let him go down to the court, on suitable occasions, either to a trial at Nisi Prius, or an argu- ment in bank, and watch the proceedings with the profoundest attention of which he is capable. " As to attendance in the courts of justice," observes Professor Woodeston, " though the student's time may there be most usefully employed, — for a little practical experi- ence often countervails much reading, — yet his time may be there also miserably wasted. An imperfect understanding of the cases there argued, will not only be unattended with improvement, but productive of pernicious errors. On this ground the practice of the learned Plowden is highly deserving of imitation ; who, as he relates by way of useful admonition, acquainted himself beforehand with the subject mat- ters which were to be argued in the courts, and studied the points of law, so that, he says, " I was so 33 386 Introduction to Law Studies. ripe in them, that I could have argued them myself." * It would be well, therefore, if the student, in accord- ance with this suggestion, were to make a point of acquainting himself thoroughly, beforehand, with any case in his pleader's or barrister's chambers, which he intends to hear tried or argued, and then let nothing distract him from attending to it in court. Thus he will behold the drift and object of many a rule that he had never before distinctly comprehended, however frequently it had come under his notice ; he will see the consequences of erroneous pleading, and the fitness of good pleading to develop the real merits of a case. It will, so to speak, stir about and freshen the whole mass of his learning, open to him entirely new views of the legal system, and inspire him with a keener interest with all that appertains to his profes- sion. He will there see the solid superstructures of reasoning — the graceful Corinthian capitals of rheto- ric — built upon the foundation he has been so long and anxiously learning how to lay. In order, however, to do all this advantageously, the student must go on in an attentive humor, and pre- serve it throughout. He must endeavor to " keep himself to himself" — not to recognize a single acquaintance, if he can help it, unless that acquaint- ance be one concerned in the case, or engaged, Hke himself, in watching it. If he go only to nod to this person, chatter with the other, and scribble notes to a third, he ivill but disturb the court, distract himself, * Woodes. Lectures, vol. iii. p. 541 ; and see Raithby, Letter xlviii. p. 444(2ded.). Going down to Court. 387 and cause it to be suspected, that, being too idle to stop at his studies in chambers, he has come to court in order to make others as idle as himself. He will find no difficulty in getting a good situation for seeing and hearing all that goes on ; and should not fail to make notes of whatever strikes him as new or difficult. Let him, then, as he walks home — and he should always prefer walking home from court alone — strive to recapitulate all that he has heard ; an admirable exercise for his memory: and at his first vacant moment in the evening, let him strive to draw up a brief and succinct account of what he has heard, referring to the chief authorities that were cited, and especially perusing those portions of the text-book, which prescribe the form of the proceedings he has been witnessing; and the exposition of the rules of evidence which he has just seen exemplified. 288 Introduction to Law Studies. CHAPTER XXIV. Commonplacing. Who reads ■Incessantly, and to his reading brings not A spirit and judgment equal or superior, (And what he brings, what need he elsewhere seek) Uncertain and unsettled still remains ; Deep versed in books, and shallow in himself, Crude or intoxicate, collecting toys And trifles for choice matters, worth a sponge ; As children gathering pebbles on a shore. Milton — Par. Regained. The merits and demerits of the system of common- placing have occasioned much contrariety of opinion. " The science of law itself," says Sir William Jones, "is, indeed, so complex, that, without writing, which is the chain of the memory, it is impossible to remem- ber a thousandth part of what we read or hear. Since it is my wish, therefore, to become in time as great a lawyer as Sulpicius, I shall, probably, leave as many volumes of works (i8o) as he is said to have written." " Commonplacing," says Fulbeck, " is a profitable course under titles to digest the cases of the lawe, into which they may transfer such things as they have either heard or read; neither is it safe to trust to other men's abridgments, which are little available to such as have read a little ; but that which we, by our owne sweat Commonplacing. 389 and labor do gaine, we do firmly retain, and in it we do principally delight ; and I am persuaded that there hath never been any learned in the lawe and judicial, who hath not made a collection of his own, though he hath not neglected the abridgment of others." " It is so necessary," says Roger North, " that, with- out a wonderful — I might say miraculous — felicity of memory, three parts of reading in four shall be utterly lost to one who useth it not." " Whatever a student shall find in the course of his reading," says Sir Matthew Hale, "he should abstract, and enter the substance of it (and more especially of cases and points resolved) into his commonplace-book, under their proper titles ; and if one case falls aptly under several titles, and it can be conveniently broken, let him enter each part under its proper title; if it cannot be well broken, let him enter the abstract of the entire case, under the title most proper for it, and make references from the other titles unto it. It is true, a student will waste much paper this way, and possibly, in two' or three years, will see many errors and impertinences in what he hath formerly done, and much irregularity and disorder in the disposing of his matter under improper heads. But he will have these infallible advantages attending his course: i. In pro- cess of time, he will be more perfect and dexterous in this business. 2. Those first imperfect and disordered essays will, by frequent returns upon them, be intelligi- ble, at least to himself, and refresh his memory. 3. He will, by this means, keep together under apt titles whatsoever he hath read. 4. By often returning upon 33* 390 Introduction to Law Studies. every title, as occasion of search or new insertions require, he will strangely revive and imprint in his memory what he hath formerly read. 5. He will be able, at one view, to see the substance of whatsoever he hath read concerning any one subject, without turning to every book (only when he hath particular occasion of advice or argument, then it will be neces- sary to look upon that book at large which he finds useful to his purpose). 6. He will be able, upon any occasion, suddenly to find any thing he hath read without recoursing to tables or other repertories, which are oftentimes short, and give a lame account of the subject sought for." * The above authorities in favor of an extended and systematic mode of commonplacing are selected out of very many that could be cited; and it may be safely stated, that many of the most distinguished lawyers have held similar opinions. They are cited — and the last, especially, at length — in order that the student may be apprised of their existence, and of the weight due to their sanction. Nevertheless, the author humbly ventures to suggest, that, in his opinion, — not hastily formed, nor without anxious inquiry of those best able to judge rightly upon the matter, — this system of incessant transcription is one of very questionable expediency. He knows one individual who, with prodigious industry, had compiled four thick folio volumes, very closely written, and most systematically distributed ; and who subsequently acknowledged to him that he considered it one of the * Pref. to RoUe's Abridg., p. 8; and see Wynne's Eunom. Ixvi. Ixvii. Commonplacing. 391 very worst things he ever did ; — for his memory sen- sibly languished for want of food and exercise, till it lost its tone almost irrecoverably. However urgent the occasion, he could do nothing when out of the reach of his commonplace-book — and that cbuld not be kept up, for practical purposes, without the most oppressive labor. He subsequently quitted the pro- fession, and often bitterly regretted the time and pains he had thus thrown away. When pursued to such an extent as this, the student never reads to recollect, but only with a view to insertion in his commonplace-book ; he is satisfied as soon as what he reads is deposited there — and thus, at length, suffers "the hand to engross altogether the business of the head." "Many readers I have found unalterably persuaded," says Dr. Johnson, "that nothing is certainly remembered but what is transcribed ; and they have, therefore, passed weeks and months in transferring large quotations to a commonplace-book. Yet why any part of a book, which can be consulted at pleasure, should be copied, I was never able to discover. The hand has no closer correspondence with memory than the eye. The act of writing itself distracts the thoughts ; and what is twice read is commonly better remembered than what is transcribed." * " Commonplacing," says the illus- trious Gibbon, "is a practice which I do not stren- uously recommend. The action of the pen will, doubtless, imprint an idea on the mind, as well as on the paper; but I much question whether the benefits of this laborious method are adequate to * Idler, No. 74. 392 Introduction to Law Studies. the waste of them ; and I must agree with Dr. Johnson, ' that what is twice read is commonly better remembered than what is transcribed.' " + The author knows four instances of gentlemen now eminent at the bar, who never kept a commonplace-book; or made more than a few occasional memoranda of striking passages in their lives ; and who attribute the present tenacily of their memory, in a great measure, to their avoidance of commonplacing. It is by no means the author's wish, however, to express an unqualified dis- approbation of this system ; it is against the abuse of it that he would guard his young readers ; against the fatal facility with which they may fall into habits destructive not to the memory only, but all the other powers of the mind. If a commonplace-book is to be kept, let it be kept judiciously, and be appropriated only to the reception of passages met with in the course of reading, which are either rare or very strik- ing in point of argument or expression. Does the student happen to stumble upon a few sentences which in an instant clear up difficulties that have haunted him for months — it may be years ? They are worthy of an entry in his commonplace-book — or at least of a reference ; and, if they be altogether passed by, he may not be able to meet with them again, however great may be his emergency. How many choice pas- sages in the judgments of a Hardwick, a Mansfield, a Kenyon, an EUenborough, an Eldon, or Tenterden, and other distinguished judges, have charmed him for t Gib. Misc. Worki, 97 (Ed. 1814). Commonplacing. 393 a moment, and then been lost, for want of being entered or referred to in his commonplace-book ! The principal use of a commonplace-book is to minute down the result of any investigation of more than ordinary difficulty or importance — in which authorities will be brought together which are nowhere else collected, and which will save the labor of research on some future occasion. In it should also be depos- ited select passages — even mere sentences — contain- ing felicitous illustrations of important points, striking distinctions, etc., etc., to be found either in the argu- ments of counsel, the decisions and dicta of the judges, or observations of legal writers. A commonplace- book, in short, should be kept upon the principle of inserting in it nothing but what is important, and can- not be easily, if at all, found elsewhere when wanted. The moment this principle is lost sight of, a common- place-book becomes not only a delusive and pernicious substitute for the exercise of memory, but an unwieldy and embarrassing incumbrance. 394 Introduction to Law Studies. CHAPTER XXV. Hints to Young Counsel. I. The freedom of speech allowed to counsel in conducting the cases of their clients is manifestly indispensable for the administration of justice. It is, nevertheless, a weapon which cannot safely be wielded but by a GENTLEMAN; who will cautiously keep in view the true reasons for the existence of the right, and be governed in exercising it by uniform delicacy and considerateness. It is, however, a matter entirely within his own discretion. If real vice, fraud, false- hood, cruelty, meanness or oppression are to be de- nounced, let it be done fearlessly, and with all the power and eloquence which the advocate may be able to command ; but, still, let him remember the character which he has individually to sustain, and the dignity of that profession of which he has become a member. To indulge in unbridled license of speech, simply because one has the power of doing so — under the shelter, then, surely, of a most ignominious impunity — is inexpressibly brutal, mean and cowardly; proving him who is guilty of it to have no pretensions what- ever to the title of gentleman, and to deserve being shunned by all ranks of the profession with scorn and disgust, and denounced with all the energy of an indignant public press. Let counsel bear in mind the Hints to Young Counsel. 395 agony which he may be inflicting, in every word that is uttered, upon a person possibly of spotless integrity, of the highest delicacy of feeling, whose conduct may have been totally misunderstood or grossly misrepre- sented by interested and malignant persons; one of whose real motives counsel is altogether ignorant, yet is recklessly endeavoring to expose him to the ridicule, scorn and hatred of his friends and the public; to inflict upon his character injury irreparable. Let not the insolent speaker imagine that he always succeeds in doing this ; he is far more likely to render the victim of his vulgar and cowardly vituperation an object of sympathy, and earn for himself the character of a foul- mouthed bully ; one despised by both branches of the profession which he is dishonoring, by those who sit upon the bench, and all who afterward hear of, or read, his disgraceful utterances. The young counsel should not take it implicitly for granted, that all adverse witnesses are coming to swear falsely, that his client is an angel, or that the opposite party is really as black as he may be painted in the brief; but should make fair allowance for the bias and excitement, under the influence of which his client, however able, experienced and respectable, so naturally acts. It is the duty of counsel to do his utmost, fairly and honorably, to protect and further the interests intrusted to him ; but he may rest assured, that this he cannot do so effectu- ally as by a frank and candid, yet circumspect, advo- cacy. Such a course secures the favor of both judge and jury, of opponents, of clients, and of the bar. These, and many kindred topics, however, have been 396 Introduction to Law Studies. sufficiently discussed in previous chapters, to which the student is earnestly referred. II. On a brief being delivered to a young counsel, he should address himself to it at once; reading it over calmly and deliberately, first thoroughly master- ing the pleadings, with a view to ascertaining what is to be proved ; what is admitted on the record ; whether the proposed evidence be strictly relevant and self- sufficient ; time being thus affisrded, if the evidence be insufficient, to communicate with the attorney in order to supply what is requisite. Unless he shall have done this, he will be in a cloud throughout the cause ; incapable of rendering any assistance to his leader, and much less of conducting the cause, if that leader should be called away, or absent altogether. Let him not suppose, again, that a witness can always prove either all that is set down in the proofs, or that what is set down for him is all that he can prove, in the hands of a prudent and skillful examiner. The young counsel should consider how probable it is that the witness knows much more of the circumstances of a case than he appears, by the proofs, to know — and how many little, but most important, links in the chain of evidence can be supplied by him. The examiner should, while eliciting evidence from a witness, bear in mind the various issues which are to be approved or disapproved ; and, although the brief does not suggest it, should put his questions accordingly ; thus getting upon the judge's notes a body of evidence of which he will readily see the application. Questions should be put simply and tersely; in good order; without Hints to Young Counsel. 397 hurrying or confusing the witness ; and with a distinct object and motive for every question. Always finish a question, wait till it is answered, before proceeding to another, unless counsel would provoke rebuke and anger from judge, bar and jury, and " curses, not loud but deep," from' the suffering reporters and short-hand writers. Taking down the evidence, on the brief, is a duty both responsible and difficult. Undeviating attention to the progress of the cause is requisite for this purpose. Nothing immaterial or irrelevant should be taken down — only the substance (but in critical cases the very words) of answers being given. It requires much practice to take a satisfactory, business- like note of evidence, and great pains should be early taken to learn the art. The same observations apply, but with still greater force, to the summings up and to the rulings of the judge. It is always painful to find any material conflict between the notes of the judge and of counsel, as to the ruling of the former. In such a case, the court gives conclusive credit to the judge's note, however at variance with that of counsel. It is not unusual for a judge, on any particular ruling of importance, to read over openly the note which he has taken, in order that, if it should happen to be erro- neous, it may be at once set right. It is often a matter of critical discretion to deter- mine upon what counts the verdict shall* be entered; a matter, however, not always definitely settled at Nisi Prius. Sometimes, also, it is highly expedient, if not, indeed, absolutely necessary, to ascertain from the jury their opinion on certain portions of the case submitted 34 398 Introduction to Law Studies. to them, and counsel should be prepared respectfully to request the judge, at the close of his summing up, to leave such and such a particular fact to the jury, if he should not have done so, and should think proper to act on the suggestion of counsel. Counsel should also be prepared, when it is necessary, to tender, at the proper time, a bill of exceptions, with modesty and firmness, and deep respect for the judge and his high office. Let the point of objection, however, be distinctly understood by the counsel taking it, who should also consider whether it be of sufficient import- ance to render the step expedient. It is equally silly and indecorous to tender a bill of exceptions rashly, and, above all, flippantly. Again, let not the young counsel fall into the fre- iquent error of asking for leave to reserve a point, when at will be open to him afterward without leave, as a .matter of course, and of right. Such steps exhibit : slovenliness and puerile precipitancy. Great vigilance, :also, is requisite before acquiescing, at the close of a ■case, either before or after the delivery of the verdict, iin any particular mode of dealing with the case after- ward in banc. This is a matter which, though too often ;overlooked, in the hurry and excitement of a cause, •especially by young and inexperienced counsel, is often ■ of vital importance, as afterward appears, when too ;late. It is hese that the tyro should take special care Fthat he be not, so to speak, jockeyed by the superior .astuteness of an experienced opponent. Whether, for instance, a general verdict should be taken subject to .a special case ; or whether a special verdict should be Hints to Young Counsel. 399 taken ; whether the court should have power to draw the same inferences from the facts as they might have done ; whether a nonsuit or verdict should be taken ; and if the cause be referred, on what terms ; whether any certificate be requisite, etc., etc. ; all these and many other things which might be mentioned require junior counsel to keep his attention alive to the very last moment of a cause — to look from the jury box to the court in banc, and even to a court of error. It not unfrequently happens, moreover, that he is una- voidably left alone to encounter these exigencies. Attention to all these matters every client has a right to require in his junior. III. The young counsel should make a point of profiting by every case in which he has the advantage of being associated with eminent counsel, by consider- ing, beforehand, how he himself would conduct it, if called upon to do so, and then observing how his highly trained leader deals with it ; how complete, yet guarded, his opening ; how much that is suggested in the brief he sometimes leaves unsaid — how many facts improved ; how judicious his re-examination, or cross-examination; and often, most important of all, how he replies. Let the student also observe, partic- ularly, the stage of the proceedings, and the shape in which legal objections are taken; the production of some written instrument ; the admissibility of evidence tendered, etc., etc. ; and, when alone in a cause, be continually on the alert to stop his opponent, when putting leading and otherwise really inadmissible ques- tions. It is here said, really inadmissible ; for nothing 400 INTRODUCTION TO LAW STUDIES. is more irritating to both the judge and to opponents, and ridiculous in the presence of the bar, than for a young counsel to be perpetually starting up with puer- ile and factious objections, overruled the instant they are offered. Again, let him be cautious how he " fol- lows on the same side," when his leader has taken some legal objection, either submitting, at the close of the case, that a nonsuit should be entered, or that the defendant has offered no case to go to the jury; or, during the progress of it, by offering some such objec- tions as those above alluded to. He may paint out the picture which, till he unfortunately rose, had stood fair and distinct before the court ; in plain English, he may mar the effect of his leader's argument, and, in •doing so, make a perilous exposure of his own incom- petency. Again, let him not pester his leader with ^suggestions, especially while addressing the court, or a judge, or the jury, or examining a witness. If he feels quite certain that he sees something which one so ■much more likely than himself to see has nevertheless 'lost sight.of, then let him watch his opportunity, and, in a well considered word or two, in writing if possible, ■convey his meaning distinctly — and in a moment. 'Generally speaking, the best juniors least trouble an ■ experienced leader. Never presume to interrupt a judge when summing up, except under some peculiar and pressing exigency ; and when that shall have risen, ibe brief and respectful, and, when necessary, firm. IV. Always go well prepared to the consultation. If you do not, you are simply defrauding your client ■ of his fee, and he will probably take care that it do Hints to Young Counsel. 401 not happen again ! Turn the case over often in your mind, and look at it from every possible point of view — exactly as you would if you were certain of having to lead it. Fortify every doubtful or assailable position, though it may appear not' likely to be challenged, with legal authorities, noted upon yoi;r brief; and be sure to give your leader, at consult- ation, the fullest notice of any real point which may possibly have occurred to you, and been overlooked by him. To keep it by you for the purpose of per- sonal display in court, is merely pitiful roguery or stupidity. Always distrust very, very plain cases. Beware lest a snake suddenly start out upon you, in the shape of some concealed and utterly unexpected difficulty, which would probably have been detected beforehand and disposed of, had due consideration and circumspection been used by him whose bounden duty it was to do so. Strive, before going into court, to form a distinct conception of the entire scope and scheme of your case ; and when it is going on, keep that scheme steadily before your mind's eye, watching how it varies, as the evidence comes out, from what you had expected it to be. In other words, keep your mind level with the current of the case ; fixed upon its substance, not its fringe, in order that you may not be lost in its details. V. Never evade responsibility ; especially in advising in cases, and with reference to the evidence to be adduced in a coming trial. Do not balk your client by saying, simply, " such and such a thing must be proved ; " but show him HOW, if there be the least 34* 402 Introduction to Law Studies. possibility of his feeling at a loss. Few things gain a young counsel greater credit with his client than a full and satisfactory opinion upon evidence. It is easy to write a showy but shallow one. Look, you, carefully at your issues ; imagine yourself at the trial ; the case opened, and you there to prove it ; see what is admit- ted on the record ; what remains to be proved by oral or written evidence. Consider the proper order of proof; what documents, or evidence of any kind, are requisite, and likely to be in existence, and producible, if inquiry be made for them ; look to stamps ; see the notices, to produce and to admit all necessary documents, be duly given ; point out par- ticularly what must be done in order to admit second- ary evidence ; follow out the case in your own mind, into its probable development and minute details at the trial, in order to anticipate and provide against contingencies. Be prepared with witnesses to explain or contradict those who may be reasonably expected to be called by your opponent. Have rather too much than too little evidence. Let the youthful counsel avoid chattering to his brethren about his cases, and especially showing his brief, or allowing it to be read by others, from which rather grave conse- quences have sometimes arisen, through thoughtless- ness or perfidy. The author has known instances of a brief having been shown to another, who, after reading and giving his friendly opinion on it, has soon afterward received one in due and proper course from the other side, and being seriously embarrassed by his involuntary knowledge of the strength and weakness Hints to Young Counsel. 403 of his opponent's case. An attorney, very properly, does not approve of his brief being thus dealt with, regarding it as an indiscretion, and even a breach of professional confidence. VI. Be respectful, but never servile, to the court ; firm, if you please — but approach not the confines of flippancy, familiarity or presumption. A rebuke under such circumstances will be justly galling and humili- ating. The ear of the court is gained by modesty, by speaking briefly and to the point. It is closed against assurance, volubility, prolixity, repetition. How dis- gusting and intolerable is it, to hear a young gentleman going doggedly over ground already gone over, it may be, too, by more than one ; as if the judges had not heard or understood what had been already urged, perhaps with great tenacity, by the senior — as if there were no other case to be heard but the one then going on ; as ^f the youthful trespasser were not the subject of the " curses, not loud but deep," of those whom he keeps waiting to be heard in their own cases, — possi- bly of far greater importance than that with which he is pestering the court, ad nauseam. Observe how differently the court listens to a repulsive oflfender of this sort, and to a man who has earned the character of being business like, brief and lucid. Do not, on the other hand, give up too easily ; be fairly convinced that you have the worst of it, before doing so. Be courteous to your opponents. When you find yourself, alas, being beaten, then is the mo- ment to guard against the least manifestation of a ruffled temper — or irritability, snappishness, or down- 404 Introduction to Law Studies. right ill humor. It will provoke only laughter or dislike. It is at this pinching point, that may be infal- libly distinguished the temper and breeding of different men — the man well-bred, and him under-bred or ill- bred ; for a gentleman is a gentleman to the end of the chapter. Never take offense at what is said or done by your opponent, or your leader, unless you deliberately believe that offense was intended. If that be the case, you must act as your own sense of self- respect may prompt, with spirit, but prudence. Never permit yourself to speak in a disparaging tone of any of your brethren, especially in the presence of clients. If you cannot praise be silent. Do not expose a slip or error; but, if possible, and consistent with your duty to your own client, conceal that slip or error as you would wish your own to be concealed. Avoid buffoonery in conducting a cause. Use no vulgar language, jokes, gestures or grimaces. Play to the critics in the pit, not to the gods in the gallery. You may possibly make a foolish or ignorant juryman or bystander laugh with you, when every one else is either laughing at you, or indignant at the degrading exhibition which you are making ; possibly, too, before some foreigner, a stranger, of critical acuteness and refinement, and who may afterward speak of what he has seen as a sample of the English bar. Pay attention to manner. Take a few lessons in elocution, if conscious of deficiency. Stand straight up, while addressing either judge or jury, or examining a witness, and do not be lounging and sprawling over the desks and benches. Speak, if you wish to be Hints to Young Counsel. 405 heard and attended to, with distinctness, emphasis and deliberation. Do every thing in your power to acquiae self-possession. A flustered speaker is always a bad one ; giving pain to his auditors, and securing to himself the harassing consciousness, on sitting down, that he has not done justice to either his clients or himself. When you are unexpectedly left alone in a case, keep quiet ; be tranquil. Do not proclaim your inexperience or incompetence by fidgeting yourself and others. To adopt a Scottish phrase, " Dinna fash yoursel." When a hint is given you by an experienced neighbor, give your mind to it, and receive it with courteous gratitude. Never undervalue your opponent, but give him credit for being able to take advantage of the weak parts in your own case, and be on your guard accordingly. Do not be disheartened when facts come out adverse to your case, either unexpectedly from your own witnesses, or from those of your opponent. " Almost every fact," said once a great authority on such matters, the late Lord Truro, then Mr. Serjeant Wilde, to the author, "has two aspects — one favorable to my opponent, who brings it forward, and another favorable to me, if I have sharpness enough to see it ! " The moment that a fact is established by evidence, see how far it may stand with your own case, or really affects it, and in what way, and how you are by-and-by to encounter it. Endeavor to secure a command over your features ; even when the most sudden and dire mischance is befalling you and your case ; do not let your counte- nance or manner tell the tale to the jury, who are I 406 Introduction to Law Studies. watching you, and cannot help attaching often much too great importance to what they see. The late Lord Abinger and Sir William Follett were models of this guarded demeanor, apparently unruffled and cheerful, even when most suddenly disconcerted. A final hint is offered at parting; that it is of great importance to the young practitioner, especially at the common law bar, to be steady in his attendance at chambers, particularly in the evenings, when sudden exigencies, arising out of unexpected disappointment in obtaining the counsel intended, send clients on a voyage of discovery, so to .speak, round the inns of court; and many a young counsel has had cause to congratulate himself on being found at his chambers of an evening, instead of at places of amusement, or being out visiting. The author has himself thus profited \ not having even yet forgotten the delightful flutter of excitement with which, about nine o'clock one night, not long after his call to the bar, he received a brief, with forty-five guineas marked upon it, accom- panied by a cheque, from an attorney whom he had never seen before. Warren, Samuel, l807-l877 Author Popular and Practical Intrdwoi- duction to Law Studies. Ed. "by Title Isaac Grant Thonipsoru copy KF/272/W29/1870 Date Borrower's Name