AN
ADDRESS,
INTRODUCTORY TO THE
SECOND COURSE OF LECTURES
IN THE
LAW SCHOOL,
AT
<»rs®a©ii&4
Delivered, March 1 1, 1835,
By WIL.DIAM TRACY GOULD,
Jlrlucfjjal of tjic Scjjool.
PUBLISHED AT THE REQUEST OF THE STUDENTS-
AUGUSTA:
G. ROBERTSON, PRINTER,
1835.
ADDRESS.
It has long been a subject of much complaint, throughout this-
country, that the Studij of the Law is imperfectly pursued, and that
no provision has been made for its encouragement, at all suited to its-
importance. In no part of the United States, has there been more
lamentable cause for this complaint, than in Georgia.
Without taking time to enquire into the causes of this defect, else-
where, it may be desirable to attend, for a moment, to some of those,
which operate here. These are, principally, the gross defects of our
judicial system, and the unwise interference of the Legislature.
It is not my purpose to speak, at present, of the effect, produced on
private rights, and the administration of justice, by the form and organ-
jzation of our tribunal of dernier resort. These have been enlarged
on, so often and so unanswerably, that public sentiment has, finally,
been roused, and we have, at last, a prospect of deliverance, from the
dominion of that hydra monster, a court with ten heads, which nei-
ther act, nor speak, nor think, in unison.* But the effect of this sys-
tern, in preventing the improvement of legal science, has been most
deplorable. Most men require strong motives, to excite them to la-
borious effort, in opposition to the vis inertia of human indolence.
And what motive have Georgia students hitherto had, to labor through
the lucubmtiones viginti annorum, for legal distinction 'I Constituted
as our courts are, and have been, the indefatigable explorer of the
learning of ages has been placed on an equal footing with the petti-
fogger of yesterday, as to all prospects of professional advancement •
and the laborious investigation of principles has, by no means, led to
* A bill, to establish a Court of Errors, was passed by the last Legislature,
by the requisite majority ; and if again passed, at the next session, will become
a part of the Constitution.
e
su cessful practice. Fie, to whom the intricacies ofthe law are per--
fectly familiar, can only say to his client, as we all, every day, do say,,
" I can tell you what the law is, but cannot foresee the decision."-—.
Where success depends upon exertion, man will labor: But where, as
here, untiring effort is to have no reward, but what is found in the pur-
suit itself few are sufficiently enthusiastic, in their love of the law, to
make the exertion necessary to understand it. When, as we may
now hope will soon be the case, a tribunal shall be established, that
will introduce uniformity of decision ; give us precedents, that must be
followed ; and hold out to diligence its proper reward; a better state
pf things may reasonably be expected.
But even this change, devoutly to be wished for, as it is, cannot do
the work alone. In forming the professional character of the young
candidate for the bar, much, very much, depends upon that preparation,
which precedes his admission to practice. Habits of study, or of neg-
ligence, then acquired, are apt to remain the habits of his life. Hero
it is, that the interference of our Legislature, before referred to, exerts
an influence upon the rising hopes of the profession, only to blight,
and to destroy.
The law is not a science to be learnt in a day, nor a year. Hence,
in other States, a rigid examination, preceded by a defined length of
preparation, has been required, in order to prevent young men from
practising a profession, which they do not understand. Our courts
formerly attempted this salutary regulation. But, from a mistaken
liberality of purpose, in order, doubtless, to encourage young aspirants
for distinction, the legislature has interfered, and forbidden, by posi-
live enactment, the requirement of any fixed period of study. Here,
at once, is a blow struck at the very root of legal science. If the
judges are compelled to admit to examination all, who present them-
selves, with testimonials of fair moral character; the question of admi8-
sion to practice becomes a matter of delicacy. To reject an applicant
is to wound his feelings, and perhaps injure his reputation, and mar
his prospects. The consequence is, that none are ever rejected: and
our bar roll becomes crowded with "names of men, who, to be sure, are
attornies, by law, but are not, and never will be, lawyers.—But, as if this
were not a sufficient discouragement to laborious effort; our lawgivers,
from year to year, regularly pass special statutes, admitting persons
whose age might otherwise give them an opportunity, to be qual-
ified, before admission. There are eases, in which this interference
At a meeting of the members of the Law School, on Wednesday the 11th
inst. the following resolution was offered, and unanimously adopted.
Resolved,—That a Committee of five be appointed, to address a note to Wil-
Jiam Tracy Gould, Esq. for the purpose of soliciting, for publication, a copy
of his interesting and appropriate Lecture, this day delivered, introductory to
his course on Law.
Pursuant to the above resolution, the five following gentlemen were appoint-
ed : B. Labuzan, Benjamin F. Dill, John Milledge, Creed T. Strong, and
William W. Wiggins.
Augusta, 12th March 1835.
Sir :
We, the committee, appointed in pursuance of the above resolu-
lion, do now, in accordance with Ihe wishes of our fellow students, therein ex-
pressed, and in which we cordially join, request of you, for publication, a copy
of your Introductory Lecture, delivered yesterday. With sentiments of re-
spect and esteem, we remain, Sir,
Your Ob't. Serv'ts.
B. LABUZAN,
BENJAMIN F. DILL.
JOHN MILLEDGE,
CREED T. STRONG,
WILLIAM W. WIGGINS,
To William T. Gould, Esq.
Augusta, March 12, 1835.
To Messrs.
Wm.W. Wiggins,"!
B. Labuzan,
John Milledge, j> Committee, <f-e.
Benj. F. Dill,
and Creed T.Strong, J
Gentlemen,
The introductory lecture, delivered yesterday, was pre-
pared in great haste, and without the slightest idea of its ever being publish-
ed. Under the circumstances, however, of your application, I do not feel at
liberty to refuse your request; and the copy, asked for, will be furnished.
Very Respectfully,
Your Ob't. Serv't.
WM. T. GOULD.
r
may be warrantable: and, as the practice exists, I would never wish to
prevent its application to any particular individual. But the practice,
in general, is a deplorable one, and has a most ruinous effect upon the
ultimate prospects of many, whom it is intended to advance.
Here, then, we have sufficient cause assigned, for the neglect
even of a study, in itself attractive: for, even such a study mankind
are too indolent to prosecute, unless necessity compels, or ambit ion»<ex-
cites them: and we have shown that the necessity does not' eatfec, and
that the breathings of ambition are repressed, by constitutional
and unwise legislation.
° . . a1 s.
But the study of the Law is not considered attractive. The young
and ardent look for a subject, where their imagination can have jjree
scope, and their fancy find room, to display its coruscations, with cf-
feet. The technicalities of the law have been the bugbear of the igno-
rant,and the jest of the witty,from generation to generation. Very many,
even among those, who ought, from their profession, to be better inform-
ed, regard that noble monument of judicial wisdom, the Common Law
of England—reared, as it has been, by the experience of ages, and
improved and embellished, by the efforts of the most splendid intellect*
and the highest and purest integrity—rather as a collection of arbitrary
rules, framed only to bewilder and perplex, than as a system of princi-
pies, founded in justice, and connected by the " perfection of reason."
A mistake, more total, or more deplorable, was never made. The com-
mon law is not a mere collection of rules, formed by the caprice of
courts, or intended, by its intricacies, to be, like the edicts of Caligula,
known only from its inflictions. It is a science, of the highest order—
most prized, when best understood: and one, to which, mare perhaps
than to any other, the poet's advice is appropriate,
" Drink deep, or taste not."
To him, who examines its first principles, traces them through all
their bearings, and sees their effect in rules, which, to the eyes of others,
seem unreasonable, or trifling, the law appears, as it really is, the on*
ly safe reliance for even handed justice—the surest source, and best pro-
tector, of rational liberty. At the same time, it will be seen that the rules
of law, instead being founded in professional quibbles, are all united,
by "the strongest sense, and the soundest and closest logic," depen-
dent on each other, and forming, as a whole, a system of wisdom, wor-
thy of the illustrious minds, that have perfected and adorned it.
It is in this light, that I ask you to contemplate the subject of your
8
Studies : And to the examination of it,let me beg1 you to bring—for you
will need them—all the vigor of your understandings, all the acquire-
ments of your previous education, and all the force of your future ef-
forts.
Before entering on the immediate subject of our investigation, it may
be proper to give a very brief outline of the origin of our legal system.
I shall pot carry you back to the civil law of the Roman empire, which
•forrndNhe basis of jurisprudence, in Scotland, and on the continent of
J^'rpe.mnd to which many of our own important principles are to be
tjrK :ed. So far as that law is of force, with us, it will be referred to,
duriitg the succeeding lectures. But it is practically important, only as
foiping a part of our unwritten law, and so far as its principles are the
foundation of our own rules.
Our law is immediately derived from that of England.
The earliest period, to which the common law is usually traced, is
the time of Alfred, who is said to have compiled it, from the Saxon
laws and customs, in force in the several kingdoms of the Heptarchy.
This Prince has received from history the appellation of " Great''—
and richly was it merited. In founding for his country a system of
'laws, capable of the high degree of improvement, to which the wis-
dom of after ages has brought it, he did more to deserve that title, than
in delivering her from her Danish invaders.
Saxon liberty, with the race of its own native Princes, fell at the
battle of Hastings. The Norman conqueror owed his kingdom to the
sword; and by the sword he resolved to maintain it. The introduc-
tion of the feudal system, the leading object of which was to make the
whole people a nation of soldiers, necessarily made great changes, in
the rights of persons, and the rules of property. Besides-^-the Saxon,
though cast down, was not destroyed : and the safety of the new dy-
nasty made it indispensable, that the free principles of Saxon laws
should be forgotten, in order to bring the people into due subjection to
their new masters. Usurpation, then, followed usurpation—privilege
after privilege was taken away, till the government devolved on that
weak and contemptible tyrant, King John, from whom his Barons
forced the Great Charter, at Runnimede—that MAGNA CHARTA,
which is still boasted, as the foundation of the British constitution, bufc
which was, really, only the revival of long cherished Saxon immuni-
ties.*
* If this be considered visionary, I have, at least, the authority of Ld. Coke,
as an apology for the error. 1 Ins. 81. a.
9
Without tracing, in detail, the gradual improvements in English
jurisprudence, it is sufficient to say, that those improvements went on.
adding to the rights of the people,—or rather, gradually restoring the
rights, of which the conquest had robbed them,—till the restoration of
Charles II. It is remarkable, that the reigns of the two most utterly
depraved and worthless princes, that ever sat on the English throne,
should have been most distinguished, for meliorations in the law.—•
John granted the Great Charter. In the reign of Charles, the Ha-
beas corpus act was passed, which is sometimes called a " second Mag-
na Charta military tenures were abolished: and the feudal system,
worn down, as it had been, by the attacks of ages, received its finish-
ing stroke, and was formally consigned to the "tomb of the Capulets."
Here, then, may be dated the restoration of English liberty, as known
and exercised by our Saxon ancestors. For, although the folly of
James II. led him to attempt a revival of some of those arbitrary meas-
ures, which brought his father to the block, his own second exile, the
proclamation of William and Mary, and the passage of the Bill op
Rig kts, placed the laws of England on the substantial basis of reason
and of justice.
It will be seen, at once, that a system of laws, growing out of such,
a succession of changes, as has thus been rapidly glanced at, must have
become, to a great extent, complicated. In order to understand many
of the rules of law, it had become necessary to trace them, through all
the changes of time and revolution, to the days of Alfred: for the rea-
son of a rule could only be found in its origin : and most truly is it
said, that "the law is unknown to him, who knowethnot the reason
thereof.'' Hence, the study of the profession had become laborious, in
the extreme: and with the aids, then afforded to the student, the sci-
e:ice, to an ordinary mind, must have been little better, than "confus-
ion worse confounded." Still, the principles of the law were fixed and
imrnatahle ; and only required to be classified, and systematized, by a
master mind. Such a mind was Littleton's. But even his fame
is dimmed, in the brighter blaze of his great commentator: and the
time laas already arrived, when Littleton is hardly known, but as the
forerunner of Sir Edward Coke, This great man has left an imper-
isa able monument, in his Institutes, scarcely less celebrated than those
of Justinian, in the first of which—his commentary on Littleton—he
has given us " not the name of the author, only, but of the law it-
self;" and his work will be a text book for the student, and the high-
10
est authority for the bench, till the common law of England shall be
forgotten.
Ld. Coke was followed by a host of luminaries, whose learning
threw additional splendor on his labors ; but none of whom, it is be-
lieved, felt such enthusiastic adoration for the " gladsome light of ju-
risprudence," as their great master. For several generations, how-
ever, the law, for want of complete systematic arrangement, remain-
ed a " sealed book," to many of its votaries.
The honor of reducing to system what was, before, a comparative
chaos, was reserved for Sir William Blackstone. His commen-
taries form our first text book: and they did more, to simplify the
study of the profession, than all the works, that had preceded them.
Although, then, this book is said to be no longer read in Westmins-
ter Hall, even in that court, where its distinguished author so long
sat as judge,—because, I suppose, a reference to it is thought to savor
of the school boy—let me assure you that you cannot read it too often,
nor too long. One fact is conclusive evidence of its value.—It has
been published, about three fourths of a century; and, though furious-
ly assailed, on its first appearance, yet,—with all the declamation of the
age, about "modern improvements," and the " march of mind,"—it
remains, to this day, " without a rival, or a second."
But I am devoting, to our mother country, too much of the time,
allowed for this lecture. It remains for me yet to speak of the pro-
gress of the law, on this side of the Atlantic.
The men, who first settled these States, came in search of that liber-
ty, of which their Saxon ancestors had been robbed by conquest. They
left behind them all the shackles of feudal tyranny, and brought with
them, as their birthright, the free institutions of their fathers. The
laws of England, so far as they were suited to the condition of this
country, seem to have been generally adopted, by all the colonies.
Their formal adoption, in this State, will be considered in a future
lecture.
But it is the study of these laws, to which our attention is now par-
ticularly directed.
Although our ancestors lived under English laws, their situation
and pursuits left them little opportunity, to devote time and labor to
legal investigation. The general principles of liberty no men ever
understood better—of law, as a science, few of theni understood any-
thing. Before the revolution, though we had profound politicians, and
11
accomplished orators, we have few memorials of able lawyers. It
seems not to have been noticed, that legal education was, of itself, a
distinct business: and that, till it was made such, legal science could
never be placed on its proper footing. Law schools were unknown.
Our colleges had no legal professorships. The student had no aid in
his pursuit, other than English students had, two hundred years before,
except the important aid, furnished by the profundity of Coke, and the
classic neatness of Blackstone. Our great states, and our great cities
left our profession to its fate; and the honor of taking the lead, in im*
proving the mode of legal study, was abandoned to that small village,
on the hil's of Connecticut, which it is my pride to call my birth place.
In the year 1782, the late Chief Justice Reeve founded the LitcH-
field Law School. For many years, that institution was the only
one, of the 1, hid, in our country: and a large proportion of her able
lawyers owatoit their professional distinction. To the memory of
its founder, I ought to pay a passing tribute. He was my own, and
my father's legal instructor, and my grandfather's friend and associate
at the Bar. Taught, from infancy, to revere him, I cannot, on an oc-
easion like this, omit doing honor to his venerable name. He was a
man, in many respects, peculiar, even to eccentricity: and those pecu-
liarities, perhaps, had an influence, in giving to his opinions, on some
branches of the law, an inclination, contrary to those of all the rest of
the profession, and decidedly opposed to the entire current of authority.
But, notwithstanding this, h is enthusiastic love of his profession—in
which Ld. Coke himself hardly surpassed him—his profound learning,
and sound judgment, joined to an elevation and purity of personal
character, seldom equalled on earth, have given him a name, and a
place, among the distinguished men of our country, which the
proudest of the land may envy, and few, even of the greatest, will ever
attain.*
The advantages of the mode of instruction, pursued at Litchfield,
soon became known, and, as a matter of course, were soon apprecia-
ted. It was many years, however, before similar institutions were
established, elsewhere. If I am not mistaken, the first attempt was
made, in the University of Maryland, in 1813. A legal professor*
ship was there established, and endowed. The chair was offered to
•To whatever credit the public may consider Judge Gould entitled, in con-
nexion with the Litchfield Law School, it does not become Ms son, to claim it
for him,
12
my father, who declined it; and Mr. Hoffman, the author of the
" Coarse of legal study," accepted, and, I believe, still holds it. Of
the success of this school, I am not sufficiently informed, to speak
confidently, At Harvard University, a professorship of law has long
existed. The present school, there, however, was not organized, till
after the. time last mentioned. Under the auspices of Judge Story,
of the Supreme Court, it has attained a high reputation, as has the one
at Yale College, under Chief Justice Daggett, and that, attached to
the University of Virginia. The one, formerly conducted by the
learned editor of Blackstone, at the college of William and Mary,
; was, if I mistake not, rather an auxiliary to the general education of
the student, than a practical school for lawyers. After remaining dor-
mant, for several years, it has recently been revived, by the son of that
distinguished jurist, under circumstances, apparently highly favora-
ble. I know of none others, connected with literary institutions, in
the United States, which have become distinguished.* My own im-
pression is, that law schools flourish best, by themselves. Law is not
a science, to be taught, as a part, merely, of collegiate education. It
requires the entire efforts of a mind, already cultivated: and, to be
properly acquired, must be Studied, not as an accomplishment, but as
a-business. Hence, although the eminence of such men as Story,
and Daggett, and Tucker, may give celebrity to a legal professor-
ship, in a college; in order to make such schools suitable places of pre-
paration for the bar, they should stand alone, unshackled by mere
academic restraints. I believe experience has shown this remark to
be true, as to both the other learned professions.
Private law schools have become somewhat numerous, in ourcoun.
try. Most of those, now existing, are of comparatively recent estab-
lishment, and of their success I am unable to speak, with any de-
gree of certainty. One school, which, I believe, no longer exists,
obtained., and deserved, a commanding reputation. I allude to that,
which Was, for a few years, conducted by the former Chancellor of
New York—a j urist, to whose well earned fame, nothing, that I can
say, could do justice.1 He has given his lectures to the world, in the
. f If J have, in this remark, omitted to do full justice tc> other professorships,
or, in the succeeding observations, have not duly noticed ihe claims of other
priva'e^schools; I.can only say, that the fault is in my own want of informa-
lion, and not in their warit of "respectability. I spoke "only of what had come
, within my own observation. This address was delivered, with so little time
for preparation, that there was no opportunity to refer to.documents, or to rs-
certain any facts, other than were already familiar. As I could not undertake
to name ail existing private schools, I decline naming any.
13
commentaries, to which I shall often have occasion to refer you. And
although they are arranged upon a plan, different from that which is
followed here ; they are certainly, for many purposes, to this country,
and for almost all, to the slate of New York, what Blacks-tone's are,
in England, To the politician, and man of general science, they are, ;
perhaps, fully equal to Blackstone: and let me tell you, that, in praise
of .an elementary law book, "the power of language can no farther
go." But, for the student, preparing for practice, I humbly conceive
the Litchfield mode of instruction to he the best.—I have attempted to
introduce this plan, in Georgia—the first attempt, so far as I can learn,
to give systematic legal instruction, south of the Roanoke—for my ex.
periment, I believe, was prior to Dr. Cooper's, at Columbia.
Allow me, then, to ask your attention, for a moment, to what this
plan is. But, first, let me tell you what it is not. And it is not, 1 as.
sure you, a plan "for making 1 iwyers in a day, or without labor. I
have already remarked, that cur proks.uon, to be understood, requires
all the efforts of a cultivated mind. Any one, who expects me to save
liirn these efforts, and at the same time, to fit him for the bar, will be
dis jppoinled. 1 offer you, not a plan for acquiring legal knowledge
byhth sorption, or int'iitiou. I pro raise, only, to direct your efforts, to
system xtize. your studies, to enable you to use your mental vigor to ad*
vantage. And this is the tree mode, after all, of bringing genius
into action; for genius, with all the declamation, that we hear in
relation to it, is nothing more than " the -power of making efforts?
I shall endeavor to aid you, in making these efforts with system, and,
of course, with effect. I follow the plan, so long pursued at Litchfield^
the value of which has been tested, by more than fifty years' experience.
The leading titles of the law are taken up, in systematic succession.
I shall attempt to give you, under each branch of the subject, all the
important rules, with the cases that support them : and, as far as practi*
cable, this will be done. In every instance, you will have a skeleton,
at least, of the subject; and if the body of the title is not complete in
all its parts, it will be, only, because our time will not permit. This
plan will enable you to examine every subject, by itself, and to trace
the rules, pertaining to each, through all their ramifications, and some-
times, through a maze of conflicting decisions. The great advantage
is, that you are confined to one subject: thus having the benefit—and
it is incalculable,— o £ doing one thing at a time. In your reading, it
will be necessary that you confine yourselves to the title, under consider*
14
ation, in the lecture of the day. At the same time, your notes, taken
here, ami transcribed at your rooms, in a permanent form, constitute-
a complete professional common-place book, the convenience and val-
ue of which, for reference in future practice,, will, probably, be far
greater, than you can now anticipate.
Yoti will hear the lectures, as I heard them, at Litchfield, with
such modifications, as the local laws of Georgia require, and with
the addition of recent decisions, in England and America, to the col-
lection of which I have devoted eighteen months of laborious investiga-
tion, and intend, if life and health continue, to devote years to come.
I say this, because I hope that the effort, now making-, here, will
be sustained by the profession. Past success-give every reason to ex-
pect it: for,though this school commenced, as an experiment, with no
aid from others,, and almost without even the encouraging hopes of its
friends; it has received such support, already, that I will not feel
doubtful of the result.
That I have personal interests to advance, and personal reputation,
to seek, it would be ridiculous affectation to deny. I trust, however,
credit will be given me for sincerity, when I say, that one of my prin-
cipal objects is, to raise the standard of professional acquirement, in
Georgia—to elevate the character of the Bar—and to aid in forming
those minds, which, I hope, will hereafter adorn the Bench. If this
can be done, even in an humble degree, by this school; although neith-
er my own fame, or fortune, may be advanced ; I shall, at least, have,
the satisfaction, in witnessing the desired improvement, of reflecting
that 1 have not labored in vain-
NOTE.
To enable the reader to decide, whether the hope of future success, exf
pressed in the conclusion of the foregoing address, is reasonably founded on
the pas it, it may be well to state what progress the school has, hitherto, made.
In September, 1833, the prospectus of the school was first published. On the
18th of November, in the same year, the first lecture was delivered, to two
students. During the ensuing winter, the number gradually increased, and, in
March, amounted to twelve. In November 1834, one year from the commence-
ment, the class consisted of nineteen; of whom, three had been admitted to the
bar, during that year, and eleven have been admitted, since. The present nunt;
ber is fifteen. The whole number, from the beginning, thirty three.