This is the manner in which humanity has found the equilibrium between the rights of the individual and his fellow. men so far as those private rights which fall within the realm of torts are concerned. We will now trace the history of crimes and contracts in order to discover the method employed in those realms. We have seen how the law of torts has kept in touch with the natural instincts of men and how by building up one prohibition after another the present extent of the law of torts was finally reached. The work on criminal law and the law of contracts was not begun until a later time, and it has been only after long years of toil that they have been brought to their present state, of perfection or imperfection.

The early law of torts was civil but with a criminal aspect; it satisfied the private party and at the same time afforded protection to the community, and now and always the general principles of criminal and civil liberty are the same. In the separation of the law of crimes from the law of torts the indictment has taken the place of the appeal; the presentment is the successor of fresh pursuit and lynch law. Ignorance of the law (the rights of others) is no excuse for the individual because he has to be sacrificed for the general good. Little by little society began to feel that it had rights to be safeguarded, and as this idea. grew stronger and became localized they passed from the realm of private into the realm of public law. One by one laws have been built up to restrain the conduct of men so far as various public matters are concerned, and these constitute our criminal law. Yet, here again the object of criminal laws has not been to force men to do certain specific things, not to shape and mold their lives-they have been left free; but to restrain them

from invading the coequal rights of others. Consequently these laws have been in the nature of prohibitions. They have set limits to the movements of human wills. They have been banks to the current of human will power. There are some acts so dangerous to society in general that the latter cannot permit them to be done. Such are homicides, mayhems, assaults and batteries, robberies, libels, rape, seduction, abortion, adultery, arson, burglary, forgery, larceny (all crimes against some person), and there are also some acts which are crimes against the government itself, which is organized for the purpose of preventing the first named wrongs. For the commission of any of these crimes the law punishes the criminal with severe punishments, varying in severity with the crime. But here the punishments stop. Men are not fined and imprisoned for neglecting to do positive acts commanded, for the law, with a few modern exceptions, does not utter any such commands.

In the same way (although because of the greater artificiality and formality of contracts the principle is not so easily seen), by reason of the fact that the breaches of agreements are often not only exasperating but disastrous and the moral law seems too weak to prevent them, little by little men have extended the wall of prohibition from the region of torts along a part of the domain of agreements. The beginnings of this work are found in the early customs that grew out of the demands and necessities of the business world. of the business world. At first the only breaches of agreements punished were those of the most simple "real" contracts and other unilateral contracts, including formal conveyances, but the punishment has been extended to the breach of the consensual contract. Nothing posi

tive has been commanded. Only a small part of the territory of agreements even has been touched, most agreements being controlled only by the moral law. And, in order to be a contract, whose breach is forbidden by human law, at first the agreement had to rest upon a duty imposed by law because of delivery of property or the most ceremonious formalities; and at the present time it must be a complete offer and acceptance, rest upon a valuable (?) consideration, or be under seal, in certain cases be in the proper written form, and be free from fraud, duress, undue influence, mistake, immorality, or other vitiating circumstanceall of which shows the relationship of contracts to torts and the moral law. If an agreement possesses all of these prerequisites, that is, is a valid contract, if a person breaks it, in addition to the penalties of the moral law, he must pay the penalty prescribed by the majority in the State, as the punishment for the wrong to the individual with whom he has been dealing-for not keeping within the wall of limitation established; which punishment, as in the case of torts, is generally the payment of damages to the party wronged. This is the minimum of regulation for society to exercise, and not to exercise this would lead into society the same evils that existed in the region of torts before law stepped in and took the weapon of vengeance out of the hand of private persons. Even now, the law does not order men to make these valid contracts, but, having made them, the law forbids their breaking them. on penalty of payment of damages for such breach, or, in quasi contracts, forbids one person to unjustly enrich himself at the expense of another.

This method of development and this nature of the law seem to be character

istic of all the nations that have generat

ed systems of laws of their own, including the Babylonian, Hebrew, Greek, Roman and English. The Hebrew system may be considered typical. This system, which modern scholars have discovered is the result of a slow growth, was first adapted to nomadic life, then to agricultural, and last to commercial. The earliest laws are only one step removed from the code of private vengeance; they begin with authorized vengeance. Animate and inanimate things are punished alike for injuries received. Progress continues until the laws are executed by properly constituted magistrates. But these penalties are to be inflicted, not for failure to do something commanded, but, except in the case of a few religious matters and in their late history public matters, only for doing something which their Mosaic code had solemnly forbidden. The thought underlying their legal system seems to have

been that there are certain acts which human beings are liable to commit, which are so dangerous, or destructive, or demoralizing, that they should be prohibited; and, therefore, its commands, whether thundering forth from Sinai or issuing from the quiet retreats of prophets and priests in their hiding places in the land of Palestine, all seem to have as their fundamental principle this negative idea. They are "thou shalt nots." There are a few things that must not be done. The Hebrews are told that they must not worship idols and heathen gods, desecrate the Sabbath, kill, steal, commit adultery, or an assault, or incest, etc., on pain of the severest punishments.

This exposition might be carried farther so as to embrace the working of the principle in all the subdivisions of the law, by showing how infants, insane, corporations and other persons, natural and

artificial, have greater restrictions placed upon them than the average person, and by showing how the principle underlies the subjects of wills, property, all contract subjects, almost all the subjects known to the law and the statutes passed by legislative bodies; but I think enough has been said to show that the real nature of human law is negative and not positive. Of course there are some laws positive in character, but these have to do with administrative and remedial matters, are a late development, form only a small part of the body of the law, and all of them appear to exist for the purpose

of enforcing those primary laws which are negative in character and in which we must expect to find the true nature of law. However, because of this fact, some legal writers, notably Mr. Holland, have insisted that, in nature, law is not merely negative but imposes positive obligations; but it seems to me their position is not correct historically in that it does not show the real nature of law in the past and so far as it has yet developed, and Mr. Pollock's remark that Mr. Holland has unduly emphasized the right of the individual over his duty to others, or the rights of others, is a just criticism.

M

Y only excuse for producing this article, which necessarily must be more or less personal, if excuse should be made, is that it is the result of compliance with a request of the editor of the "Review" that I should give to the public the work of "The School of Practice" under my supervision in the "Detroit College of Law."

My consent to do so, however, was given upon the condition that I might notice some of the current criticisms of Law School work generally indulged in by some of the several Law Associations.

It has, indeed, been interesting to note the growing interest of the bar for the last ten years in the work of the Law Colleges, and particularly the interest shown in the last five or six years by the Bar Associations of the country.

I note the time of this developing interest, because prior to ten, or possibly fifteen, years ago there was no apparent interest exhibited by the bar or the Bar Associations on this subject. Fifteen years ago, and in portions of the country very much less, the young lawyer was largely the product of the law office, getting his knowledge of the law in a sort of catch as catch can way, without any especial attention from his so-called preceptor, except now and then, when called upon to hunt up a witness or copy and serve a pleading, or, in some country offices, to sweep out the office and build the fires; the greater portion of the time of the student in the office being taken up in perusing some law book undirected and alone, and after a year or so of such like work the student applied to the Court for ad

mission and was examined in open Court by a committee appointed from among the members of the bar, who without any especial preparation questioned the young man for an hour or so, often less time, recommended his admission, and he took the oath and signed the roll of attorneys. This method of admission, superficial as it was, was often abused, and plenty of men who had never studied, or even read, law, as it was said, who were merely officers of the Court, were admitted to practice, and in one instance I now recall in one of our city courts some several constables and an alderman or two were admitted who had no preparation at all.

The bar of that time appeared to be generally satisfied, and the Bar Associations, with very few exceptions, and I know of none, had nothing to say upon the subject.

The instruction given in many of our Universities was very meager, consisting generally of lectures given by three or four men on leading topics, and with a few quizzes, and no record of proficiency or standing; the students. were graduated and admitted upon their diplomas, or, if required, after enduring one of the examinations described.

In the light of this sort of a record in the past, and comparatively near past, it is interesting to note, in these days of very great improvement, when Law Colleges and Universities have with one accord striven to advance the standard and give the very best courses of study they can, the very satisfied way in which the Bar Associations of the country take unto themselves the credit of raising the standard of admission to the bar and the great advance along the line of legal education.

One can scarcely take up the proceedings of a Bar Association without. noticing voluminous addresses full of praise for the associations for the great work they have done in bringing about the advance in the standard of legal education. From one of these I quote:

"The success which has attended the efforts of the Bar Association to improve and extend the facilities for studying law in the United States, and to raise the standard of admission to the bar, must be accepted as proof of the correctness of the principle which the association has advocated as an evidence of the efficiency of the means which it has employed to win support for those principles."

Now I would not depreciate the efforts of the Bar Associations along this line, but I do most seriously object to these men assuming the credit of bringing about this advance in the standard of legal education. Often valuable suggestions have been made by men at the bar, who have interested themselves in the work of the Law Colleges and Universities; but a careful analysis of the subject will show that the great advance made in the last ten years, and which is now being successfully carried forward, is the result of the earnest, conscientious work of the reputable Law Colleges and Universities. To them belongs the credit, and the whole credit, except that advantage gained from intelligent criticism, which is always of benefit.

The lawyers at the bar are and ought to be interested in the subject of legal education, and their discussions and suggestions have been the source of very great good; but we must remember that the reputable Law School in this day and for the future must lead, and it should be fostered and encouraged by the lawyers and law associations. One of the most serious, as well as the most important, questions, con

stantly presented to legal educators today, is how to teach the practice of the law, or applied law.

This has been done in many schools by "Practice Courts." Much has been written upon the subject in the several law magazines, it has been the subject of numerous addresses, nearly every law association in the land has given it attention, and still "the cruel war is on." We have had all sorts of opinions upon the subjects. Indeed, any one who has thought it necessary to advance his opinion upon the subject of legal education has found great satisfaction in attacking or extolling this branch of the work.

The law faculties of our several Colleges have had their attention constantly directed to this subject, and sometimes the discussion has resulted in great good.

Not long ago in discussing the subject before a law association a man of some prominence took occasion to say that "the teaching of pleading and practice, as far as the law schools are concerned, is an absolute failure." And at the same session a prominent practitioner used this language:

"But there is another developement of the law school system with which the profession must contend, and which must be overcome if the bar is to retain its prestige. ** I refer to the continual thrusting of law school graduates upon the bar with no adequate conception of practice and methods of procedure. It is unnecessary to discuss this fact or attempt to provide, for the

Bar

Association knows that as yet no law school has successfully solved the problem of teaching practice thorougly. Some have zealously striven to do so, and may think they have; but others deny it, and declare we have not the time in a three years' course to do it properly."

And an eminent instructor in one of our law colleges has said that a law faculty, in preparing the curriculum for

a three years' course, cannot afford, in the interest of the student, to appropriate a sufficient amount of time to teach practice thoroughly. "Is it the best thing we can do for a student," said he, "to teach him how to go into court and conduct a litigation? Evidently not. The first thing to do is to teach him law; the substance and the soul of the law."

Out of all these criticisms no plan of work or course is suggested to take the place of the practice court.

"The substance and the soul of the law" is never learned so thoroughly as when applied by the practitioner in the trial of causes or applied in the practice of his profession. No matter how thoroughly you study the text-books, or cases, or lectures, "the substance and soul of the law" is fixed and settled in your mind by contact with men in the practice of the law, when "Greek meets Greek."

Now, we may not be able to give to our students that full and complete experience that will make them great lawyers when they graduate. That ought not to be expected, for it is the work of a lifetime, and then only attained by a few men. But one thing we can do. We can give them some (to them) actual experience. We can show them. more than mere theory. We can give them some practice, by requiring them to apply the law to, as near as we can make them, real cases.

The men who are so ready to criticise the results of the law schools in this work forget that these students are just learning the profession. They are demanding too much of them. They must not only be able to walk, but must run in the swift race of the strong men at the bar. We forget our own experience, and that possibly twenty years.