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that law was a science. I was quite pre- jurist then just as surely as the discus-
sion of the case makes the jurist of to-
To see how admirably the analysis of myself; and one of the first rules of a conscientious student of science is never to take precedents and establishment of princia fact or a principle out of second-hand
ples leads unerringly to a science of law, treatises, but to go to an original memoir of the discoverer of that fact or principle. Out we need only consult the Institutes of of these two fundamental propositions—that Justinian. The application of the same law is a science, and that science is to be studied in its sources—there gradually grew,
method to a like material must inevitably first, a new method of teaching law; and, lead to a similar result, and precedent secondly, a reconstruction of the curriculum of the school.'"
and single instance take the precision of
a code under a master hand. And yet this method was old-old as
The single instance is the key to the the ancient world, as are many of the
structure, and the door to the treasure newest theories of the day. Even a cas
swings wide open if one but press boldly ual reference to the Digest of Justinian
and turn the key. Pleading is from one shows it to be a veritable myriad of prec- point of view a systematic, albeit abedent, a wilderness of single instances,
struse, whole, which cannot well be learnthrough which the man of wit groped his
ed by rule. Or, to put it differently, the way to principle and light.
rule does not make the case, but the case To take a single instance: On the
of them have made the rule. sale of an estate quarries were excepted,
The famous reports of Saunders, whom and after many years minerals were Lord Mansfield called the “Terence of found in the estate so conveyed. When
Reporters,” and of whose reports Lord asked to whom they belonged, Tubero
Campbell said no other work of the kind replied, “To the vendor.” But Labeo
afforded “such a treat for a common lawcontended that the ownership depended yer," are far from easy reading; but a upon the nature of the transaction. If
mastery of the records in Latin and of the the minerals did not lie upon the surface, arguments in French lead and have led or if their existence were unknown at the
to fame and fortune at the bar. Daniel time of sale, they could not well be ex- Webster was well advised to devote his cepted, because we neither sell nor ex- days and nights to Saunders, just as Dr. cept from the sale that which does not ex- Johnson recommended the literateur to ist, and minerals or quarries are legally devote his days and nights to Addison, nonexistent if they are not seen or work- and there can be no doubt that the painsed. Otherwise an estate would be turned taking translation from the original text into a quarry if perchance a single stone made by Webster in his novitiate counted
found under the surface. To for much in his subsequent career. The which sane opinion Justinian adds: “I single instance and the myriad of preceapprove.” (Digest 18, 1, 77.)
dent produced the trained mind which is The study and analysis of the case set at once the crowing glory and the most free the principle within it, and the scien- individual gift of the lawyer. Webster tific arrangement and classification of is simply cited as an example. His disthese principles made the science of tinguished predecessors on or off the jurisprudence. The discussion of the bench followed the same hard and wellcase under competent guidance made the beaten road to success. A Lord Ken
yon and an Eldon, a Baron Parke and a pressed the matter and the outcome in a Blackburn, found the royal road led few measured sentences : through the wilderness of single in- "The time has gone by when an eminent stances.
lawyer, in full practice, can take a class of
students into his office and become their Admitting the truth or aptness of all teacher. Once that was practicable, but now this, the practical question confronts us,
it is not. The consequence is that law
schools are now a necessity." where can the student get this training and under what circumstances? The old
But the law school is not merely a neclawyers got their preliminary training in
essity; it is in reality an advantage. the office and perfected themselves by a
The ideal of education-a log with Mark lifetime at the bar. Any one at all famil
Hopkins at one end and the student at iar with the history of legal education
the other-is admirable if Mark Hopkins knows that the student in the office was
be seated at the log; but the Mark Hopcarefully trained, not set loose to his
kinses are few and the students are many. own devices or busied with the serving Besides, there is an advantage in the of papers, as is the lot of the law student many, and their association; for law has in the office of today. The lawyer of
been developed by the conflict of mind whom I speak took students to his cham
against mind in a court of justice, and bers, and personally inducted them into many minds draw fire where one would
not. the mysteries of the profession. The chamber was a small school, and the
The great Lord Kingsdown points this master a severe, yet competent, teacher.
out in no uncertain terms: To take a well-known instance: The "I am not sure, however, that my legal
education, though long and laborious, was younger Chitty trained an immense num
by any means successful. My uncle ber of eminent lawyers—Lords Cairns had no other pupil than me, which, in many
respects of advantage, was, on the whole, I and O'Hagan, Chief Justice Whiteside,
think, rather the reverse. None know the Mr. Justice Willes, Mr. Justice Quain, difficulties of a path but those who are tread.
Difficulties Sir James Hannan, Sir Emerson Ten
ing or have just trodden it.
are continually arising, and by discussion nant, Mr. Forster (author of the Life of amongst themselves pupils learn more from
each other than from a master.” Dickens), Mr. Henry Matthews, Lord Herschell, Mr. Justice Matthew, and Mr. Even were this not so, the law school Justice A. L. Smith (Dictionary of Na- is inevitable, and it is a comfort to be astional
Biography, article on Chitty, sured by such competent authority that Thomas). While we would not change the present method is on the whole more a Langdell or an Ames for Chitty, father advantageous. And it seems to me that and son, we would readily admit that the the advantage lies in the incentive to training of the office is indeed justified study, and that progress springs from asby its fruits. "The old order changeth, sociation. It is indeed a sorry truth yielding place to new," and the changed which the teacher must perforce admit conditions do not permit a busy lawyer "that pupils learn more from each other in extensive practice to devote himself to than from a master.” But the teacher is the student. The client knocks on the not on that account useless or wholly door and is insistent, and the thirty pieces without a reason for his being. He is a of silver betray the pupil as they once did "very present help in time of trouble," and the Master.
a word or suggestion will often help even The late Chief Justice Waite has com- the most intelligent over a difficult or
dark stretch in the road where he might flash that greets the contact of flint with otherwise stumble and fall and grow steel. faint-hearted. Take the classics for ex- Perhaps no finer example of this is to ample, plus a text and a dictionary, or be found in our history than in the pertake the more meager equipment of sons and careers of Webster and Clay: Champollion, a proper name from which And it was a wise remark of the late his wit and fortune spelled fame and the Carl Schurz that, if Clay had had Webscience of Egyptology, though it may ster's college training, he would have be doubted if the wealth predicted by the avoided the mistakes of a lifetime. But poet was his portion.
I do not need to argue for the university No doubt the student can puzzle and the college, and the law school rises through with the text and dictionary, if or falls with the reasoning that supports grammar be added; but think of the
these institutions of learnin waste of time and the discouragement of
I cannot, however, leave the advanit all when a word from the teacher
tages of the law school and the study of would give a sense of sweetness and
the precedent and single instance withlight to a passage that eludes grasp. out quoting the strong and trenchant lanThe dead language becomes a living
guage of Professor Keener, a master thing, and if, as Lord Bowen suggests, land in the art of handling cases: history be mixed with it, the text be
"1. That law, like other applied sciences, comes literature—another
should be studied in its application, if one form of life. The role of the teacher is to acquire a working knowledge thereof. is indeed modest, but well-nigh indispen
2. That this is entirely feasible, for the rea
that, while the adjudged cases sable. The student, however, is trained numerous, the principles controlling them are because he trains himself, and none the
comparatively few. 3. That it is by the
study of cases that one is to acquire the less trained because he is the chief factor
power of legal reasoning, discrimination, and
judgment, qualities indispensable to the pracin the process and the result.
ticing lawyer. 4. That the study of cases The advantage of association may not best develops the power to analyze and to be overlooked or underestimated; other
state clearly and concisely a complicated state
of facts, a power which in no small degree wise, the university and college, perhaps distinguishes the good from the poor and the high school, become useless. One
indifferent lawyer. 5. That the system, be
cause of the study of fundamental principles, may study by himself-indeed, he must;
avoids the danger of producing a mere case but the question is whether it is better lawyer, while it furnishes, because the princi
ples are studied in their application to facts, or easier in the long run to use the mid
an effectual preventive of any tendency to night lamp, as the self-made do and mere academic learning. 6. That the stumust, or to combine in judicious propor
dent, by the study of cases, not only follows
the law in its growth and development, but tions daylight and association with oil. thereby acquires the habit of legal thought, Knowledge comes from quiet and isolat- which can be acquired only by the study
of cases, and which must be acquired by ed thought and study; training in a sub
him either as a student, or after he has beject and in the power to discover and
come a practitioner, if he is to attain any
success as a lawyer. 7. That it is the best meet unsuspected truths and analogies.
adapted to exciting and holding the interest The knowledge that cornes, the wisdom of the student, and is, therefore, best adapted
to making a lasting impression upon his that lingers, and the training that welds
mind. 8. That it is a method distinctly and transfuses both into the equipment productive of individuality in teaching and
of a scientific spirit of investigation, indeof the lawyer, come from the flash of
pendence, and self-reliance on the part of the mind against mind just as surely as the student." (28 Am. L. Rev. 709.)
Admitting that law is a science, that maintain the contrary would be, in the it should be taught as a science, and that happy language of Lord Bramwell, "to it is best taught and acquired in the law hold that, because the world grows wiser school under competent guidance, it may as it gets older, therefore it was foolish be suggested, and naturally, that the fin- before." ished product of the school will be better The training of the law school reaches than the raw material of the office, and beyond the classroom and pile of brick the conclusion may seem inevitable that and stone. It steadies the man of affairs, the lawyer of to-day is and must be a and by teaching him his rights imposes better man than his fellow of the past. upon him the duty to respect the rights of The conclusion, however flattering it others. It taxes him with notice and may be to student and teacher alike, does teaches him responsibility. The law of not necessarily follow, because every- evidence does not merely benefit the lawthing depends now, as always, upon the yer. Its principles broaden out and material. If the ass go traveling he will force us to weigh all things, holding fast not return a horse, and, though we may that which is good and true. Training refine the clay, we cannot create it. We in law makes us saner, because more balcannot make by any rule of thumb men anced, men, and cultivates the power of leaders of men, and therefore leaders in judgment, without which learning is a their profession, any more than the geog- useless thing. It makes us better citirapher can raise the clay with which zens, because it necessarily teaches us he deals into mountains. The Creator of where private rights end and public duthe universe does that. One thing we ties begin. It makes us better able to exmay, however, hope to do, namely, to ercise the suffrage which, wisely or unpoint out the path by which we have trod- wisely, our people possess. The law not den and make it safer and easier for the only defines our relation to our fellow average man. We can train the bar.
man, but points out the relation of the We can educate the bar and make it wor- citizen of the state to the nation, and enthy of its traditions.
ables us to weigh in the balance the effect It would be absurd to contend that of the law upon nation, state, and citithe lawyer of to-day is and must be The ability to understand and ingreater, because his problems are more terpret the statute in the light of the evil complex. The older practitioner might to be corrected would lead to a nicer adhesitate for a moment or look troubled at justment of the statute to the end prosome of our modern cases, but the mind posed. A knowledge of the law makes trained in the past problem would solve us a law-abiding people, and it is evident the new one. It is madness to say that that the lawyer armed with training and the master of sailing craft would fail if knowledge should be a better citizen than he stepped upon the Dreadnaught, and the man without either. Whether he is that Nelson, had his life blood not red- or not must depend upon the moral qualdened the deck of the Victory at Trafal- ity of the individual man, and the fall gar, could not have steamed into harbor of the lawyer from grace should be and with Farragut or Dewey, and that he is visited with a rigorous penalty. Much could not have vanquished the Russian has been given him, and much must be as did Togo. The matter and the me- expected. dium change; the mind remains. To If law makes for citizenship, a knowledge of the law and a well-trained mind Lincoln, they would, to paraphrase should coexist in ample proportions in Franklin, undoubtedly think of some the man of public affairs. This is so things that do not occur to those who are self-evident that we overlook it. Take not lawyers, and the public good would a single instance. Dr. Franklin would be enhanced in a thousand and one ways, have made American Independence the not evident to the layman, but of which result of treaty with Great Britain, there- he would be the grateful beneficiary. by sacrificing the advantage of a negotia- If, then, we cunsider law to be a tion on the footing of equality, while science; if we study and teach it as a John Jay, trained in the law, made the science; if we train the mind in correct, treaty the result of independence—its because legal, ways of thinking; if our recognition a fact, not an advantage to men of affairs be men of training; if be bartered for. It is true that Franklin the men of state, whether they be public said to Oswald, the British negotiator: men merely or statesmen, are trained in "Mr. Jay was a lawyer, and might possi- municipal and international law; and if, bly think of some things that did not oc- from the myriad of precedent, that wildcur to those who were not lawyers.” erness of single instances, we separate And to the last he spoke as though he the wheat from the chaff, and bottom our did not see much difference. The train- ways and our institutions upon the just ed mind of the lawyer saw and noted the principles underlying precedent and sindifference, and indepenılence was recog- gle instance—we may indeed hope to be, nized as a fact, not given as a concession in the words of the great poet: for a concession.