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