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and inspire them with a desire to be still better acquainted with the laws and constitution of their country. 12
12 It is proposed to present a few considerations upon the proper mode of training for the practice of the profession of the law in this country. They will be altogether of a practical character.
The bar in the United States is open to all who wish to enter it. It is mostly under the regulation of the various courts, and their rules have been framed upon the most liberal principles. Generally a certain period of study has been prescribed, never, it is. believed, exceeding three years. In some States, however, even this restriction is not found. The applicant for admission is examined, as to his knowledge and qualifications, either by the courts or by a committee of members of the bar.
The profession is the avenue to political honours and influence. Those who attain eminence in it are largely rewarded, and, with ordinary prudence, cannot fail to accumulate a handsome competence. Hence the young and ambitious are found crowding into it.
There is a great-perhaps an overdue-haste in American youth to enter upon the active and stirring scenes of life. Hence it is undoubtedly true that many men are to be found in the ranks of the profession without adequate preparation. Very often the difficulties presented by the want of a suitable education are overcome by native energy, application, and perseverance; but more commonly they prevent permanent success, and confine the unlettered advocate to the lower walks of the profession, which promise neither profit nor honour. Unless in cases of extraordinary enthusiasm and where there are evident marks of bright natural talents, a young man without the advantages of education should be discouraged from commencing the study of the law. Not that a collegiate or classical course of training should be insisted on as essential, -although it is, doubtless, of the highest importance. Classical studies are especially calculated to exercise the mental faculties in habits of close investigation and searching analysis, as well as to form the taste upon models of the purest eloquence. The orators and historians of Greece and of Rome are a school in which exalted patriotism, high-toned moral feeling, and a generous enthusiasm can be most successfully cultivated. With a good English education, however, many a man has made a respectable figure at the bar.
Lord Campbell has said that "he who is not a good lawyer before he comes to the bar will never be a good one after it.” It is, no doubt, highly necessary that the years of preparation should be years of earnest, diligent study ; but it is entirely too much to say, with us, that a course of three years' reading, at so early a stage, will make a good lawyer. In truth, the most important part of every lawyer's education begins with his admission to practice. He that ceases then to follow a close and systematical course of reading, although he may succeed in acquiring a considerable amount of practical knowledge, from the necessity he will be under of investigating different questions, yet it will not be of that deep-laid character necessary to sustain him in every emergency. It may be safe, then, to divide the period of a lawyer's preparation into-first, a course of two or three years' reading before his admission, and, second, one of five or seven years' close and continued application after that event.
At the commencement of his studies in the office of his legal preceptor, the cardinal maxim by which he should be.governed in his reading should be non multa, sed multum. Indeed, it was an observation of Lord Mansfield, that the quantity of professional reading absolutely necessary, or even really useful, to a lawyer, was not so great as was usually imagined. The Commentaries of Blackstone and of Chancellor Kent should be read, and read again and again. The elementary principles so well and elegantly presented and illustrated in these two justly-celebrated works should be rendered familiar. They form, too, a general plan or outline of the science, by which the student will be able to arrange and systematize all his subsequent acquisitions. To these may be added a few books of a more practical cast; such as Tidd's Practice, Stephens on Pleading, Greenleaf's Evidence, Stephens or Leigh's Nisi Prius, Mitford or Story's Equity Pleading, which, with such reading of the local law of the State in which he purposes to settle as may be necessary, make up the best part of office-reading. It will be better to have well mastered thus much than to have run over three times as many books hastily and super ficially. Let the student often stop and examine himself upon what he has read. It would be an excellent mode of proceeding for him, after having read a lecture or chap ter, to lay aside the book and endeavour to commit the substance of it to writing, trusting entirely to his memory for the matter, and using his own language. After having done this, let him reperuse the section, by which he will not only discern what parts have escaped his memory, but the whole will be more certainly impressed upon his mind, and become incorporated with it as if it had been originally his own work. Let him cultivate intercourse with others pursuing the same studies, and con. verse frequently upon the subject of their reading. The biographer of Lord-Keeper
North has recorded of him that “ he fell into the way of putting cases, (as they call it, which much improved him, and he was most sensible of the benefit of discourse; for ] have observed him often say that (after his day's reading) at his night's congress with his professional friends, whatever the subject was, he made it the subject of discourse in the company; for, said he, I read many things which I am sensible I forgot; but I found, withal, that if I had once talked over what I had read, I never forgot that.”
Much, of course, will depend upon what may be termed the mental temperament of the student himself, which no one can so well observe as his immediate preceptor; and he will be governed accordingly in the selection of the works to be placed in his hands, and his general course of training. No lawyer does his duty who does not frequently examine his student,—not merely as an important means of exciting him to attention and application, but in order to acquire such an acquaintance with the character of his pupil's mind—its quickness or slowness, its concentrativeness or discursiveness--as to be able to form a judgment as to whether he requires the curb or the spur. It is an inestimable advantage to a young man to have a judicious and experienced friend watch. ing anxiously his progress, and competent to direct him when, if left to himself, he will most probably wander in darkness and danger.
In regard to the more thorough and extended course of reading which may and ought to be prosecuted after admission to the bar, the remarks of one of the most distinguished men, who have ever graced the American bar, whose own example has enforced and illustrated their value, may be commended to the serious consideration of the student. “There are two very different methods of acquiring a knowledge of the laws of England,” says Horace Binney, (art. Edward Tilghman, Encyclopedia Americana, vol. xiv.,) "and by each of them men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succcession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel, as much as to know, what is in harmony with the system and what not. The other is, to get an outline of the system, by the aid of commentaries, and to fill it up by desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired, until it is given by investigation in the courts of practice. A good deal of law may be put together by a facile or flexible man in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer.”
Under this view, the following course of reading may be pursued. The whole subject is divided into heads, and the order of proceeding is suggested. All the books named may not be within the student's reach : some may be omitted, or others may be substituted. It may, however, be somewhat irksome to pursue any one branch for too long a period unvaried. When that is found to be the case, the last five heads may be adopted as collateral studies, and pursued simultaneously with the first threo.
I. REAL ESTATE AND EQUITY.-Hale's History of the Common Law. Reeves's History of the English Law, Robertson's Charles V. Hallam's Middle Ages. Dalrymple on Feudal Property. Wright on Tenures. Finch's Law. Doctor and Student. Littleton's Tenures. Coke upon Littleton. Preston on Estates. Fearne on Contingent Remain. ders. Sheppard's Touchstone. Preston on Abstracts. Preston on Conveyancing. Jeremy on Equity. Story's Equity Jurisprudence. Powell on Mortgages. Bacon on Uses. Sanders on Uses and Trusts. Sugden on Powers. Sugden on Vendors and Pur. chasers. Powell on Devises. Jarman on Wills. Washburn on Real Property.
II. PRACTICE, PLEADING, AND EVIDENCE.-Sellon's_Practice. Tidd's Practice. Stephen on Pleading. Williams's Saunders. Greenleaf on Evidence. Mitford's Equity Pleading. Barton's Suit in Equity. Newland's Chancery. Gresley on Equity Evidence.
III. CRIMES AND FORFEITURES.-Hale's Pleas of the Crown. Foster's Crown Law. Yorke on Forfeiture. Coke's Institutes, Part III. Russell on Crimes and Misdemeanors. Roscoe on Criminal Evidence. Chitty's Criminal Law. Wharton's Criminal Law. Bishop's Criminal Law.
IV. NATURAL AND INTERNATIONAL LAW.-Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis. Rutherford's Institutes. Vattel's Law of Nations. Bynkershoeck Quæstiones Publici Juris. Wicquefort's Ambassador. Bynkershoeck de Foro Legatorum. Mackintosh's Discourse. Wheaton's History of International Law. Robinkon's Admiralty Reports. Cases in the Supreme Court U.S. Dunlap's Admiralty Practice.
V. CONSTITUTIONAL LAW.--Coke's Institutes, Part II. Hallam's Constitutional History. Wynne's Eunomus. De Lolme, with Stephens's Introduction. The Federalist. Rawle on the Constitution. Story on the Constitution. Baldwin's Constitutional Views, Upshur's Brief Enquiry. Calhoun's Works, vol. i. All the Cases on the Subject in the S.C. U.S. VI. Civil Law.-Butler's Horæ Juridicæ. Gibbon's Histor" of the Rise and Fall,
chap. 44. Justinian's Institutes. Taylor's Elements. Mackeldy's Compendium. Col. quhoun's Summary. Domat's Civil Law. Savigny's Histoire du Droit Romain. Savigny's Traité du Droit Romain.
VII. PERSONS AND PERSONAL PROPERTY.—Reeves on Domestic Relations. Bingham on Infancy and Coverture. Roper on Husband and Wife. Angell and Ames on Corporations. Pothier's Works. Smith on Contracts. Jones on Bailments. Story on Bailments. Story on Partnerships. Byles on Bills. Abbott on Shipping. Duer on Insu
Emerigon Traité des Assurances. Boulay-Paty Cours de Droit Commercial. Story on the Conflict of Laws. Parsons on Contracts. Parsons's Elements of Mercantile Law. Parsons on Shipping, Insurance, and Admiralty ; being a Treatise on Maritime Law. Phillips on Insurance.
VIII. EXECUTORS AND ADMINISTRATORS.—Roper on Legacies. Toller on Executors. Williams on Executors. Lovelass's Law's Disposal.
Very few Report books are set down in this list as to be read in course. In his regular reading, the student should constantly, where it is in his power, resort to and examine the leading cases referred to and commented upon by his authors. In this way he will read them more intelligently, and they will be better impressed on his memory.
It is believed that the course thus sketched, if steadily and laboriously pursued, will make a very thorough lawyer. There is certainly nothing in the plan beyond the reach of any young man with industry and application, in a period of from five to seven years, with a considerable allowance for the interruptions of business and relaxation. He must have, however, certain fixed and regular hours for his law-studies, and he must not suffer the charms of a light literature to allure him aside. The fruits of study cannot be gathered without its toil. In the law, a young man must be the architect of his own character, as well as of his fortune. “The profession of the law,” says Mr. Ritso, “is that, of all others, which imposes the most extensive obligations upon those who have had the confidence to make choice of it; and, indeed, there is no other path of life in which the unassumed superiority of individual merit is more conspicuously distinguished according to the respective abilities of the parties. The laurels that grow within these precincts are to be gathered with no vulgar hands: they resist the unhallowed grasp, like the golden branch with which the hero of the Æneid threw open the adamanting gates that led to Elysium.”-STARSWOOD.
OF THE NATURE OF LAWS IN GENERAL.
Law, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.
Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to bu. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,-as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to *39]
the root, and from thence to the seed again; the method of animal
*nutrition, digestion, secretion, and all other branches of vital economy; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.
This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.
Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has
1 This, perhaps, is the only sense in which the word law can be strictly used; for, in all cases where it is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from ihose which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws: he had only to will, ows Yeveotw kai eyeveTI. When we apply the word law to motion, matter, or the works of nature or of art, wo shall find in every case, that with equal or greater propriety and perspicuity we might have used the words quality, property, or peculiarity.- We say that it is a law of motion, that a body put in motion in vacuo must forever go forward in a straight line with the same velocity; that it is a law of nature, that particles of matter shall attract each other with a force that varies inversely as the square of the distance from each other; and mathematicians say, that a series of numbers observes a certain law, when each subsequent term bears a certain relation or proportion to the preceding term: but, in all these instances, we might as well have used the word property or quality, it being as much the property of all matter to move in a straight line, or to gravitate, as it is to be solid or extended ; and when we say that it is the law of a series that each term is the square or square-root of the preceding term, we mean nothing more than that such is its property or peculiarity. And the word law is used in this sense in those cases only which are sanctioned by usage; as it would be thought a harsh expression to say, that it is a law that snow should be white, or that fire should burn. When a mechanic forms a clock, he establishes a model of it either in fact or in his mind, according to his pleasure; but if he should resolve that the wheels of his clock should move contrary to the usual rotation of similar pieces of mechanism, we could hardly with any propriety established by usage apply the term law to his scheme. When law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz. disobedience and punishment.
Hooker, in the beginning of his Ecclesiastical Polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers who treat law as a science begin with such an explanation. But the editor, though it may seem presumptuous to question such authority, has thought it his duty to suggest these few observations upon the signification of the word law.—Christian.
It has been objected that law, in its proper sense, is confined to the conduct of intelligent beings. It is to be observed, however, that we apply the term in the English language to any rule whatever which we conceive to have been established by a superior. In this sense, all the operations of nature may be considered as the result of certain rules laid down by the Supreme Being in creation; in other words, that every existence, spiritual, animal, vegetable, or mineral, had impressed upon it certain rules of action. They may be called qualities, properties, or peculiarities; but, considering them all as the work of an Almighty Creator, it is perfectly accurate and most proper to call them laws. By the use of this word we keep constantly in mind, as we ought, that the uni. verse was not the result of a blind chance, but the work of Intelligence. A perfectly correct, as well as most general, definition of the word law is, the command of a superior
In most languages there are two words,--one expressive of law in its generai or ab stract, and another in its concrete, sense. Thus, in Latin, jus expresses the former, let the latter; in French, droit and loi; in German, recht and gesetz. The word right, in English, might be adopted for the abstract sense of law; but it has not been. Usus non jus focit norma loquendi. Considering the word law as comprehending this general and alsstract sense, there is no objection to the text.-SHARSWOOD.
more or less extent and effect, in proportion as the superiority of the one and the deperdence of the other is greater or less, absolute or limited. And con. sequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker's will.
This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created man, and *40]
endued him with free-will to conduct himself in all parts of *life, he laid
down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.?
Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions.
Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian(a) has reduced the whole doctrine of law.s
(a) Juris præcepta sunt hæc, honeste virere, alterum non lædere, suum cuique tribuere. Inst. I. i. 3.
? The laws of our moral being are the necessary relations sustained by us to our Maker and to other beings. The existence of a Supreme Being—a Spirit infinite, eternal, omniscient, omnipotent—is a first truth of moral science. It may be assumed safely as an admitted truth. Having created us such as we are, our relations to him and to one another arose not from his will, but from those eternal principles of rectitude which were coeternal with his will. “Erat enim ratio profecta a rerum natura et ad recti faci. endum impellens, et a delicto avocans; quæ tum denique incepit lex esse non cum scripta est, sed tum, cum orta est; orta autem simul est cum mente divina.”—Cic. de Legg., 1. ii. s. 4. The same may be affirmed of other than moral relations. We may say without the slightest irreverence that, having created things having extension, God could not make two things, both equal to a third, which would not at the same time be equal to one another. There is, in like manner, an inherent difference between right and wrong, independently of the will of any being. God himself cannot make right wrong or wrong right. Right and wrong, are eternal as the Deity. They depend upon the relations of moral beings; and, even before such beings were created, those relations existed in possibility, though not in act. The will of God existed coeternally with him. self; and that will, infinitely perfect and incorrupt, never could do else than choose the right and refuse the wrong. Right and wrong are not created existences, but the moral qualities of created existences.
It may well be questioned, then, whether the learned commentator, in starting with the assertion that the law of nature is the will of the Creator, has not assumed an erroneous principle as the foundation of his reasoning. In his sense, the law of nature denotes “the rules of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.” It is clear but this law respects entirely the question of what is right and wrong. It is true that, in willing to create moral beings, our Maker knew what their necessary relations both to himself and each other would be; and, in a secondary sense, he may be maid to have willed the existence of those relations. But this is an entirely different thing from the idea that the rules of right and wrong resulting from those relations were simple creations of his will; for that implies that he might have made them other than they are.-SHARSWOOD.
3 It is rather remarkable, that both Harris, in his translation of Justinian's Institutes, and the learned Commentator, whose profound learning and elegant taste in the classics no one will question, should render in English, honeste vivere, to live honestly. The language of the Institutes is far too pure to admit of that interpretation; and besides, our idea of honesty is fully conveyed by the words suum cuique tribuere. I should presume to think that honeste vivere signifies to live honourably, or with decorum, or bienséance; and that this precept was intended to comprise that class of duties of which the violations