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BY JAMES BROWN SCOTT, M. A., J. U. D.
in the George Washington University.
An Address Delivered at the Opening of the George Washington
University September 26, 1906.
GREAT poet, who had the mis
fortune not to be a lawyer, but
who lived in touch with law and lawyers, has outlined in a few exquisite lines the aim and purpose of student and teacher as well as school of law :
"As we task ourselves To learn a language known but smatteringly In phrases here and there at random, toil'ds Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances. Thro, wbich a few, by wit or fortune led, May beat a pathway out to wealth and fame."
Lord Tennyson has here laid before the student the task to master the lawless science of our law, further complicating a problem sufficiently difficult by the suggestion that precedents of law are numbered by myriads leading through a wilderness of single instances, in which, it is to be feared, many a one not led by
wit or fortune has lost his way. That wealth and fame may result from the study of law is for our purposes immaterial; for we do not consider the purpose of the law school to make. men either wealthy or famous, but by training to make safe counselors and law-abiding citizens.
To follow the poet in detail—he suggests that there is a science of law, but immediately qualifies it as the lawless science of our law. Admitting law to be a science, it is no doubt lawless in one way. It is not a mathematical science so that a final outcome may be predicted with certainty. Much depends on the twelve good men and true; not a little upon the court, and the lawyer himself who presents the case is an important factor. But, while the ultimate development may not be predicted with precision, still the direction may be forecast, and the resultant may be a subject of scientific calculation as is any problem in which men
are the moving forces rather than abstract rules. The economic man of political economy is an abstraction. He does not exist; and until we can eliminate the human equation economics can never become a mathematical process. The same is true with law. It is, however, a fact that the present is best understood in the light of the past, and a knowledge of the past and the present is necessary to gauge the future whether it be remote or immediate.
If, then, it cannot be said that law is a science in the mathematical sense of the word, it clearly may be called a science in the sense of political economy and ethics. If the law be such a science, and science after all means little more than classified knowledge, it should be studied by methods applicable to science. If, as the late Professor Langdell remarked, the terms of this science, and indeed the materials of the science are to be found in the books, it necessarily follows that resort must be had to the books, to that codeless myriad of precedent, that wilderness of single instances, to be found in reports of adjudged cases.
By studying the cases of a particular subject, by separating the cases that deal with a particular subject, by dividing these cases so separated into groups, by analysis and classification, it follows that the principles underlying them all may be discovered and brought to light. In this way a general principle is established, and when once the general principle is established it may be-indeed, must be -applied to analogous cases.
The law is progressive, just as the stream is progressive. At times the channel may be forsaken; but, if a re
turn be not made to the old channel, a new one is beaten out to sea.
A bystander on the banks, while he may not measure the current nor gauge its force, can yet perceive the flow. Were law not a growth, were it not progressive, but a mere wilderness of single instances, a codeless myriad of precedent, it would be impossible for any man to hope to master the details of law; because memory, rather than strength of understanding, logical faculty, perception, and training, would be the sword and shield of the practitioner. Were the single instances forgotten, were the pathway in the wilderness lost, darkness and night must overshadow the lawyer whose memory slipped him in time of need.
It cannot be doubted and it is not meant to suggest that memory is unimportant. A well-stocked mind shows to advantage in the court as well as the class room; but the great aim in legal education must be to train the mind to think in terms of law, and, by a knowledge of the law necessarily obtained in the process, to advise laymen and court.
In order to forecast the law, and make a judgment in a particular instance a development or prolongation of precedent, rather than a guess, law must be studied historically and the threads of development knit into a single strand.
Lord Mansfield, a name greatly honored in the annals of law, felt and expounded this truth:
“The law of England would be a strange science indeed if it were decided upon precedents only. Precedents only serve to illustrate principles, and to give them a fixed authority. But the law of England, which is exclusive of positive law enacted by statute, depends upon principles, and these principles run through all the cases, according as the particular circumstances of each have been found to fall within one or the other of them." Jones v. Randall, Cowper, 37.
The late Lord Bowen, who represented for many years literature upon the bench,
and whose devotion to the law was a loss experiment, and perhaps the happy comto literature, expressed this truth even bination of doubt and experiment may more gracefully:
produce, not merely a science, but a phil"The only reasonable and the only satis- osophy, of law. factory way of dealing with the English law
Almost within our own day we have is to bring to bear upon it the historical method. Mere legal terminology may seem
discarded the text-book for the experia dead thing. Mix history with it, and it ment, and high schools as well as colleges clothes itself with life.”
and universities turn the student into the To resume the analogy of the flowing laboratory. Chemistry, for example, is river, my Lord Bacon happily and truly no longer a pleasing exhibition performed said that law is colored by the materials by an instructor in a darkened room to of the clay through which it flowed. In the delectation of freshmen. The student the same way, the law is naturally modi- is put to the test, he takes the problem, fied by the usages and customs of the he experiments, he solves it, and in so day in which it is administered, and, in- doing acquires a training and knowledge asmuch as these usages and customs which cannot or which should not be dithemselves develop, it follows that the vorced. The text-book is not neglected, law of a subsequent generation changes
for otherwise each student would have with them, in order that the intent of to reconstruct in his laboratory the exman may be discovered in the usages and periments of the ages; but the training customs of the day as well as by his word and knowledge gained in the laboratory of mouth. Or, to quote for a second time fit the student to read with pleasure and the two noble lords, "as times alter,” said profit approved texts, and in rare cases Lord Mansfield, "new customs and new the training and knowledge so acquired manners arise, and these occasion ex- may advance by experiment the science ceptions, and justice and convenience re- of chemistry. quire different applications of the excep
To take another and not less concrete tions within the general rule.” And as
illustration. The student of medicine Lord Bowen said: "Legal doctrines may read, indeed study, text-books of should be so applied as to meet the broad- anatomy, but until he comes in contact ening requirements of a growing country,
with the skeleton and handles it as a speciand the gradual illumination of the public men he does not really know the human conscience."
frame. Should he aim to make himself a If, therefore, law be considered as an surgeon, it follows that the mere study of organism; if it be considered as growing anatomy from books will avail but little. and progressive, as yielding of necessity, He must see the operation performed, from its very nature, to usage and cus- he must himself do it, and by the happy tom, it follows that a careful considera- combination of knowledge and experience tion of these various elements leads to a and the training derived from both he correct knowledge of the law in our day becomes a master hand. If he wish to and creates a science of the law.
succeed as a general practitioner, he must Admitting that law is a science, it haunt the clinic and make his own diagnecessarily follows that it should be stud- nosis. ied as a science; and if, as Descartes Illustrations of this kind are said, the first principle of the philosopher mon knowledge, and further enumeration is to doubt, the first step in science is would add little to the principle involved.
The law student must imitate the stu
rust doth corrupt," and which dent of medicine. The method must nec- "thieves do not break through nor steal.” essarily differ, because the subject is dif- How shall the student best obtain this ferent; but if he wishes to study law as a knowledge and training ? The methods science, and if he further wishes to prac- are many and various. One thing, howtice law as a profession, he must do what ever, is certain: that the student only the medical practitioner does, namely, ac- obtains permanent results from that quire a knowledge of and a training in his which he himself does.
It is an everychosen subject. The student of medicine day occurrence to all of us that that or chemistry resorts to the experiment. which comes in at one ear goes out at The student of law must take up the con- the other, but that which we have crete case, examine it, discuss it, and de- thoroughly mastered remains as a concide it in the light of theory. The re- tinual possession. ports furnish these concrete cases, and a The important matter, therefore, in careful study of selected cases covering any method, is that the student must rely the various fields of law is, it would seem, upon himself, and if he does not rely upat once the scientific and theoretical way on himself he must be taught to do so. of mastering law. It is also the practical
Therefore the fundamental requirement, way, for an examination of the case in whatever method be adopted to effectuate a class room renders the task of the law it, is and must be that the student is office easy and familiarizes the student trained to think and to reason logically with the line of reason obtaining in courts
and legally. If we cannot say, with my of justice. It is theoretical, because the Lord Coke, that law is the perfection of concrete case is discussed in the light of reason, we must admit that that which is theory in order to discover the principle not reasonable cannot long be law, and, which reason and precedent have estab- although the reason of the law is artificial lished as applicable to a case so circum- and difficult of attainment, it is neverthestanced.
less reason. If, then, we find that the scientific meth- Therefore the student must be perod provides a discussion of the concrete suaded, if necessary, forced, to undercase, and the concrete cases which form stand this reason, to master this reason that codeless myriad of precedent, that in the concrete case, and to apply it in wilderness of single instances, and that action. That method which best trains from this discussion the student is train- the student in legal thinking and in legal ed at once in the knowledge of the prec- reasoning is necessarily the best method edent and in the theory of the law, it for the student of law. The lecture follows that the study of the concrete method fails to arouse the student. He case, being at once theoretical and prac- listens and looks at the clock, and falls tical, is the ideal method of preparation asleep betimes. If listening would make for the practice of law.
a lawyer, the church goer would needs If the student classifies and digests the become in the course of days an expert knowledge so obtained, if he examines a theologian; but common experience problem in the light of history, in view of teaches us that the science of theology is the usages and customs obtaining, it re- not absorbed from the pew, but is acsults necessarily that he makes of himself quired either in the cloister or in the a digest of the law which "neither moth school of theology.
The teaching of the law by means of selected texts is an improvement upon the lecture method, because the student is forced to think; but it requires a trained mind to think in abstract terms, and it must be an exceptional person who from the abstract statement can suggest and apply concrete illustrations. Any one who has had experience in the classroom knows that the student is awakened by an illustration taken from the professional experience of the instructor, and that the concrete illustration remains when the abstract principle is forgotten which it was sought to illustrate.
If, then, the excellence of the text-book method is found in discarding the text and resorting to a concrete case, it necessarily follows that a discussion of a subject based solely upon selected concrete cases should commend itself to teacher and student alike. The concrete case is grasped by any student of average intelligence, and, once grasped, he is prepared to follow in detail the discussion of the case.
If to the concrete case hypothetical instances and modifications be suggested, the student is led perforce into a theoretical discussion in which he discovers the theory underlying the case and its modifications. By the constant application of this method, not as a test of memory, but as an investigation of principles of law, the student is led insensibly to a grasp of legal principle. The concrete case suggests the theory, and theory and practice thus go hand in hand. From their happy combination knowledge of the law is produced. By means of this method the student is the chief factor; he trains himself; he discovers and reconciles difficulties and receives in proper cases the guidance and assistance of the instructor.
The excellence of this method of instruction has commended itself alike to
theorist and practitioner, and at the present day schools of law have adopted it in all parts of our country. The analogy between the study of medicine and the study of law by this method at once becomes evident, and the student by actually studying the case masters the case, and with each case mastered becomes better trained and more capable. The student thus relies upon himself, and for the printed page and the voice of the instructor substitutes himself.
Self-reliance is not a discovery of one day, although we are perhaps more insistent on it in education than were our fathers. The self-reliant method of studying law is as old as the first lawyer, but the emphasis placed upon independ ent thought and investigation as a means of legal training dates from the call of one Christopher Columbus Langdell—a name well becoming a discoverer or innovator—to a professorship of law in Harvard University.
Mr. Langdell started out in life with the belief that law was a science and that it should be studied as such. In his years of practice he matured and strengthened his belief by the study of the case as the source of legal knowledge, and in his professorate he made the case the basis of examination and discussion. He took the case in his hand and squeezed from it a precious essence. From his class room the disciples passed into other class rooms and into active practice, and the law thus classified and distilled has become a thing of beauty, easy of apprehension, and capable of scientific treatment and measurement. “The voice of one crying in the wilderness" has indeed pointed out the way to legal salvation. Or to phrase it differently:
“No one has stated the fundamental premise better than President Eliot in speaking of Professor Langdell, to whom the science of law owes a heavy debt: 'He told me