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THE
LAWS AND JURISPRUDENCE
OF
ENGLAND AND AMERICA.
--—O—-
D I L I, O N.
THE
LAWS AND JURISPRUDENCE
ENGLAND AND AMERICA:
BEING A SERIES OF LECTURES DELIVERED BEFORE
YALE UNIVERSITY
BYº
JOHN F.”DILLON, LL.D.,
STORRS PROFESSOR, YALE UNIVERSITY, 1891-1892;
Author of Commentaries on the Law of Municipal Corporations; Member L'Institut de
Droit International ; late Professor of Real Estate and Equity Jurisprudence in
Columbia College Law School ; formerly Circuit Judge of the United States for the
Eighth Judicial Circuit, and Chief-Justice of the Supreme Court of the State of
Iowa.
Finis et scopus quem leges intueri, atque ad quem iussiones et sanctiones Suas
dirigere debent, non alius est quam ut cives feliciter degant. – BACON: De Aug.
lib. viii. aph. 5.
There are two, and only two, foundations of law-equity and utility.— BURKE,
Tract on the Popery Laws.
B O S T O N :
LITTLE, BROWN, AND COMPANY.
1895.
Copyright, 1894,
BY John F. DILLoN.
UNIVERSITY PRESS :
John WILSON AND SON, CAMBRIDGE, U. S. A.
A. P. D.
The years of professional studies, circuit journeyings, and judicial
itinerancies, whereof this book is in some measure the outcome,
as well as the time required for its preparation, have been
taken from your society and companionship. The only repar-
ation possible is to lay these imperfect fruits upon your lap.
As to you, indeed, they justly belong, this formal DEDICATION
serves alike to accredit your title and to manifest my grateful
sense of obligation and affectionate regard.
ºlº Lo -5
PR E FA C E.
OTHING can be less ambitious than this vol-
ume. The introduction to the first lecture
shows the circumstances under which the lectures
were given, and the scope and purpose of the
course. I have, however, added some notes in
the line of further development or illustration. It
might have been more artistic to have recast the
whole, working the notes into the text; but if
this had been done, the loss would have exceeded
the gain, since the lectures thus remodelled would
not have been the lectures delivered, and they
would moreover have contained details not adapted
to oral discourses. Besides, it is a prized privi-
lege of the teacher to make use of the first per-
son, as this enables him to address his hearers
more directly and more forcibly than in any other
way. It is of set purpose, then, that I publish
the lectures in their original form.
They are just what they are, and just what
they purport to be, and nothing more, — namely,
discourses to a class of law students, given largely
viii AA’AºA'A CE.
to inspire a patriotic and just regard for the laws
and institutions of our country, to incite enthu-
siasm in the study of the law rather than to im-
part technical instruction, to awaken inquiry rather
than to satisfy it upon subjects of vital moment
to the profession lying somewhat outside of the
ordinary legal curriculum. It is due to me and
to the reader that the book be judged from this
point of view and no other. While it therefore
disclaims any pretension to profound research or
exhaustive treatment, as inconsistent with its main
purpose, it deals, nevertheless, with the interest-
ing subjects of legal education; trial by jury; the
origin, development, and characteristics of the
common law; written constitutions, legislation,
case-law, the law reports, the doctrine of judicial
precedent, codification, and law reform.
There is one purpose which runs through all
the lectures, in virtue of which only can the book
make any claim to unity of design : that pur-
pose is to delineate the characteristics and to
exhibit the excellences of our legal system as it
now exists, with a view to show that for the
people subject to its rule it is, with all its
faults, better than the Roman or any other alien
system. It is an argument intended to be so
earnestly and strongly put as to amount to a
protest against the Continentalization of our law.
I have a profound conviction of the superiority
of our system of law, at least for our people;
but I know that this estimate is not so fully and
AA’AºA'.4 CE. ix
sºm-
firmly held by the body of lawyers and law
teachers as I think it ought to be. I have there-
fore thought it a fitting, if not needful, aim to in-
spire on the part of the profession a more thorough
appreciation of it. But while I confess to a desire
to set forth its excellences, I am not conscious of
any inclination to veil its imperfections.
An attempt, proper in oral discourse — at all
events one which falls within the plan of these
lectures — has been made at popular, or perhaps
it were better to say non-technical, treatment of
the subjects discussed, and to invest them with
their appropriate literary and historical appanages;
but always, it will be found, with a serious pur-
pose in view. It may be that the continuous
labors of forty years in the profession — twenty
on the bench and twenty at the bar — have in-
clined me to approach and to consider legal ques-
tions too slightly on the theoretical and too much
on the practical side. This is a general habit
with lawyers under the common-law system; but
it is a habit which has been characteristic of such
lawyers from the beginning, and to which, more
than to all other causes, that system owes its dis-
tinctive character, its merits as well as its defects.
As the result of studies, reflections, and expe-
rience, I have formed upon many of the topics
discussed decided opinions, which I have freely
expressed. They represent my matured views and
convictions. The legal system of England and
America is substantially developed, – as fully, I
X AA’AºA'A CAE.
mean, as it is practicable to develop a system
which must necessarily expand with the life and
growth of the active communities which it gov-
erns and regulates. The pressing want of our
substantive law is an authoritative, scientific, and
comprehensive arrangement of its vast and scat-
tered materials, — a work which is yet in its form-
ative stages. What has thus far been projected
has made but little real advance, and has not
always proceeded on the right plan or principles.
My judgment is that, for this purpose, our law
must be treated as substantially unique and dis-
tinctive, and arranged according to its real char-
acter, — arranged, so to speak, from within and
not from without.
Among many professed legal reformers and spec-
ulative writers it seems to be taken for granted that
the Roman law will supply all or most of the
needed aid and models. This is a radical mis-
take. Our laws and jurisprudence must be ana-
lyzed and resolved into their constituent principles,
and these must be arranged according to their own
nature and historical development. The resulting
arrangement will necessarily be as unique and dis-
tinctive as the materials with which it deals, which
cannot be recast except to a limited extent in
moulds furnished by the Civil or Continental law.
A Roman basilica cannot be transformed into a
Gothic cathedral. We cannot sever ourselves from
our past in respect of our law any more than in
respect of our history. We can no more change
PREAEA CAE. xi
the essential character of our legal system and
legal institutions than we can change our lan-
guage, or the traditions, habits, usages, sentiments,
and genius of our people. Such a change would
be impossible if attempted, and unwise if it were
possible. The English and Roman systems are on
many points so different in their conceptions,
growth, essential character, and scope, as, in my
judgment, to predestinate to certain and signal
failure any attempt to remodel ours as a whole
after the Roman system or any of its modern
European adaptations.
The meagre results in this direction of the labors
of Austin and his successors, though men of ability
and learning, confirm me in this opinion. At all
events, they have not produced any comprehensive
and systematic analysis and re-arrangement of the
corps or body of our laws in a shape ready or fitted
for legislative action. They have supplied us with
studies and sketches in abundance, but have only
partially furnished working plans and detailed spe-
cifications. The necessary work has hardly been
begun. I feel constrained to say this, although
mindful of the influence and value of their labors
in arousing the attention of the profession to the
defects in our system of laws and jurisprudence
and the necessity of amending and improving it.
They have given us, indeed, skeleton forms, but
these are practically useless unless clothed with
flesh and blood, and made vital by legislative
breath, – things seemingly yet far off. What
xii AA’AºA'A CE.
worth there may be in the views on these sub-
jects, and others scarcely less important, presented
in this volume, must be left to the thoughtful
consideration of the profession, and above all to
time and experience to determine.
J. F. D.
NEW YORK, January, 1894.
C O N T E N T S.
LECTURE I.
PAGE
Our Law in its Old Home. —Definition of Law and Juris-
prudence. — Law more than a Body of Commands. –
IEthical Nature and Foundation of Law. — Respective
Fields of Law and Morality. — General Characteristics
of the English System of Law. — Mainly the Work of
the Lawyers and Judges of England . . . . . 1–33
LECTURE II.
The Education and Discipline of the English Bar, and
herein of the Inns of Court, their History, Character,
and Purposes. – Origin, Antiquity, and Establishment of
the Inns of Court (Note A). — Status of Serjeant-at-Law,
Ceremonials on taking the Coif, the Difference between
a Serjeant and a Queen's Counsel, etc., etc. (Note B) 34–74
LECTURE III.
The Education and Discipline of the English Bar, and
herein of the Inns of Court, their History, Character,
and Purposes (concluded). — The Literary Associations
of the Inns of Court (Note A). — Studentship in the
Inns of Court, and Mode of being called to the Bar
(Note B) . . . . . . . . . . . . . . . 75–107
xiv COAVZTEAVT.S.
LECTURE IV.
PAGE
Westminster Hall: Its History and the Characteristics of
the System of Law developed and perfected therein;
and herein of Judicial Tenure and Compensation, Trial
by Jury, and Judicial Precedent . . . . . . 108–142
LECTURE W.
Our Law in its New Home — America: Its Expansion,
Development, and Characteristics in the Political and
Judicial Systems of the United States . . . 143–168
LECTURE WI.
Our Law in its New Home — America: Its Expansion,
Development, and Characteristics in the Political and
Judicial Systems of the United States (continued) 169–195
LECTURE WII.
Our Law in its New Home — America: Its Expansion,
Development, and Characteristics in the Political and
Judicial Systems of the United States, and herein of
our Written Constitutions, their Rationale, Limitations,
and Guarantees (concluded) . . . . . . . . 196–215
LECTURE VIII.
Our Law : Its Excellences and Defects. – Doctrine of
Judicial Precedent and its Consequences. – Case-law
and its Uneven Development. — Unfortunate Separation
of Legal and Equitable Rights and Remedies.— Unsat-
isfactory Condition of our Law of Real Property 216–241
COAVZTAEAVZ.S. XV
LECTURE IX.
PAGE
Our Law: Its Uncertainty and Enormous Bulk. — Sugges-
tions as to the Scope and True Methods of Amending
the Laws; and herein Codification considered. — The
True Office and Use of Adjudged Cases (Note) . 242–263
LECTURE X.
Our Law. — The Vast Size and Rapid Accumulation of
Case-law considered specially with Reference to the
Practicability of Limiting its Growth by Legislative
Action restricting the Publication of the Reports of
Adjudged Cases. – Remedies Proposed by Lord Bacon
and Lord Westbury for the Overgrown Bulk of our Stat-
ute and Case-law. — The Doctrine of Judicial Precedent
and its Effects. – Judgment of the American Bar Asso-
ciation concerning the Publication of the Taw Reports
264—292
LECTURE XI.
Our Law : Blackstone and Bentham as Types and Expo-
ments of the Conservative and the Radical Forces, to
whose Free Play it owes its Progress, as well as its
Distinctive Form and Character. — The Literary, Insti-
tutional, and Historical Value of Blackstone's Commen-
taries. – Their Great Influence in moulding the Laws
and Jurisprudence of America. . . . . . . 293–315
LECTURE XII.
Our Law : Blackstone and Bentham as Types and Expo-
ments of its Conservative and Radical Forces, to whose
Free Play it owes its Progress, as well as its Distinctive
Form and Character. — Bentham’s Place in our Legal
History. — Character and Influence of his Writings
and Labors upon English Law and its Reformation
(concluded) . . . . . . . . . . . . . 316–347
xvi CO/WTEAV7.S.
LECTURE XIII.
PAGE
Our Law : A Century’s Progress and Development. — Im-
portant Contributions to our Laws made by the United
States. – Specific Changes in the Laws of both Coun-
tries upon Subjects of Great and Permanent Interest. —
Present Condition of our Laws and a Forecast of their
Evolution . . . . . . . . . . . . . . 348-389
TABLE OF CASEs CITED . . . . . . . . . . 391, 392
AUTHORS CITED . . . . . . . . . . . . . 393-398
INDEX . . . . . . . . . . . . . . . . 399–431
YALE LECTURES
ON
ENGLISH AND AMERICAN LAWS
AND JURISPRUDENCE.
LECTURE I.
OUR LAW IN ITS OLD HOME. — DEFINITION OF LAW AND
JURISPRUDENCE. — LAW MORE THAN A BODY OF COM-
MANDs. – ETHICAL NATURE AND FOUNDATION OF LAW. —
TESPECTIVE FIELDS OF LAW AND MORALITY. — GENERAL
CHARACTERISTICS OF THE ENGLISH SYSTEM OF LAW. —
MAINLY THE WORK OF THE LAWYERS AND JUDGES OF
ENGLAND.
FEW months since, I received from the author-
ities of Yale University a letter stating that
its Law School had a WILLIAM L. STORRS LECTURE-
SHIP, which provided for the appointment each year
of a different professor to give a course of about
twelve lectures on legal topics, and asking me to
occupy the place for the current college year,
1891–1892. My appreciation of this honor was
such as to tempt me, in spite of my many en-
gagements, to accept the appointment.
The subject matter of the lectures being left to
my judgment, I have been not a little embarrassed
1
flecture
T.
Introduc-
tion.
2 LA WS AAWD 3'ORISPRUDEAVCE.
Leure in determining the character and scope of this brief
Course of
lectures
outlined.
course. The object of lectures upon the law may
be twofold: First, with the primary view to impart
instruction; second, not primarily for the purpose
of instruction, but rather to awaken and stimulate
a real interest, — to set, if happily it may be, the
hearer thinking, and to inspire enthusiasm in the
study of the law, to the end that the hearer may be
incited afterwards to pursue the subject on his own
motion, and for the very love of it, by personal
recourse to the appropriate and authentic sources
of knowledge. Were I to select some single topic
with a view to expository, technical treatment, I
should run the risk of repeating more or less what
has been already taught, and taught by lecturers
who by constant use keep their equipment bright;
whereas mine has so long hung idle upon the wall
that it has become rusty, and its use unfamiliar.
On the whole, I have determined, wisely or other-
wise, to pursue the latter plan, thinking that in the
long run some observations on subjects which lie
beyond the marches of the ordinary legal curric-
ulum, yet relating to matters of living and vital
interest to the student of our laws, might be
quite as fruitful in results as technical and didactic
lectures.
The course proposed may be thus outlined: —
A consideration of Our Law in its Old Home, its
definition, and distinctive character; the education
and discipline of the English bar, and herein of
the Inns of Court, their history, character, and pur-
poses; of Westminster Hall and the characteristic
qualities of the English system of law which is in-
O OVA’ Z.A. W. ZAV / 7 S OZ ZO ATOMAE. 3
dissolubly associated with this illustrious building,
and herein of judicial tenure, of the trial by jury,
and the doctrine of judicial precedent. This will
be followed by a consideration of Our Law in its
New Home, its American expansion, development,
and modifications, including written constitutional
limitations; and this will lead to an examination
of the English and American system of law and
jurisprudence in its general features, wherein will
appear its excellences and defects. This will be
succeeded by a consideration of the conservative
and radical forces in our law, of which Blackstone
and Bentham are types and exponents, and of the
true end, methods, and limitations of legal reform.
And finally I shall attempt to trace the progress
of law in this country during the first century of
our national existence, with a view to exhibit its
present condition, and then to mark out the proba-
ble, if not necessary, lines of its future growth and
improvement.
Compendiously expressed, it may be said that
these lectures, so far as unity of design can be pred-
icated of them, relate to Our Law in its Old and in
Žts New Home, — England and America.
What do I mean by the expression “our law”?
Simple as it seems, this is a most important inquiry.
It lies at the threshold, - nay, more, it lies at the
very foundation of all legal studies scientifically
conducted. What is meant will be made more clear
by first stating, negatively, what is not meant. By
the phrase “our law,” I do not mean moral law; on
the contrary, I mean to exclude it, — so far, at all
Lecture
I
The ex-
pression
“our law'”
as used
in these
lectures
defined.
4. A WS AAWD jº/V/º/SPACODAEAVCAE.
events, as moral law stands distinguished from civil
or mumicipal law.
As soon as the development of man's intellect
enables him to distinguish right from wrong, he
inevitably comes under the sway of what is termed
moral law, and thenceforth it is impossible for him
to do any act, however momentous or however
minute, having a moral quality, of which that law
does not take cognizance. Conscience having its
imperial and divine seat in every breast, suscepti-
ble of having its vision made more comprehensive
and more acute, its touch more delicate, and its
decrees more perfect by enlightened education, yet
incapable of being torn from the breast of man, -
conscience is a universal judge, holding its assize at
every man's door, sitting in judgment upon every
act and every omission partaking of a moral quality,
to condemn or to approve." It administers in its own
way and by its own methods what may, indeed, be
termed the moral code: and yet it is absolutely
essential to a correct legal conception of law to de-
fine its province, and to separate it for purposes of
definition, classification, study, and administration,
Tuecture
Does not
include
ethics or
morality.
1. By the metaphorical language of the text, in which conscience is
personified, I do not imply that conscience is a separate, special, or
exceptional moral faculty in our nature. On the contrary, I am
inclined to agree with those who deny this, and maintain that con-
science is the ethical manifestations or revelations of our whole moral
nature, — which is indivisible, – and not those of a supposed single and
distinct sense or faculty. Those who are curious on this subject will
find it discussed at length by Professor Lorimer (“The Institutes
of Law,” Edinburgh and London, 2d ed., 1880, chap. vi., pp. 186-204).
Unlike this distinguished writer, I am unable to see that the question
whether conscience is a separate faculty or not has any special bearing
on practical jurisprudence.
oUR LAW IN 17's OZD HOME. 5
from the domain of ethics or morality, - that is to
say, for all the purposes of the lawyer and the judge,
or, more comprehensively, for all the purposes of
jurisprudence, which concerns itself only with civil
laws properly so called; namely, rules of conduct
which are enforced or enforceable by the State.
But this does not imply, as I shall show more
fully after defining the term “law,” that rules regu-
lating civil conduct may not, so to speak, be imported
by the tribunals, when necessary for the purposes
Lecture
I.
of the actual decision of causes, from the field of when
morality. Such rules, however, become invested
with the quality of law only when and to the extent
that the judges authenticate or adopt, or set upon
them the imprimatur of the State, – that is, recog-
nize and enforce them by their judgments. This is
not, as charged by the Benthamic school, a usur-
pation by the judges, but a legitimate and often
necessary function of the judicial office. In the
past, large additions to our legal rules, notably in
equity and commercial law, have been made in this
way, and further additions must, whenever the neces-
sity arises, continue to be made, and in fact are daily
made, from this unexhausted and perennial source.
It is a mistake to suppose that this process has
ceased. In consequence of modern inventions,
aggregations of capital, and changed social condi-
tions, I am inclined to think that at no previous
period has this method of legal growth and change
been in more constant and active operation than at
the present time. Even the accepted general doc-
trines of courts of equity (and this is measurably
true of courts of law) are not stereotyped, but
ethical
rules be-
come legal
rules.
6 A WS AAWD 3'URISPRUDEAVCE.
Lecture
I.
Austin's
‘‘ Province
of Juris-
prudence
deter-
mined,” a
valuable
contribu-
tion to the
Science of
law.
possess, within recognized limits, a progressive and
flexible character."
Austin rendered, perhaps, no greater service to
jurisprudence than in his elaborate chapters on the
“Province of Jurisprudence Determined,” wherein
he defined the boundaries of jurisprudence, and sep-
arated it from the domain of ethics or morality.”
1 Re Hallett's Estate, Law Reports, 13 Chancery Division, p. 710,
per Sir George Jessel. This great equity judge there says: “The
rules of courts of equity are not, like the rules of the common law,
supposed to have been established from time immemorial. They have
been established from time to time, – altered, improved, and refined
from time to time. In many cases we know the names of the chan-
cellors who invented them, -— as, for example, the separate use of a
married woman, the restraint on alienation, the modern rule against
perpetuities, and the rules of equitable waste. We can name the
chancellors who first invented them, and state the date. The older
precedents in equity are of very little value; the doctrines are pro-
gressive, refined, and improved.”
* Mr. Justice Markby, after expressing his approval of Austin’s
conception of law and of sovereignty, and his sense of our indebted-
ness to him for drawing so firmly the distinction between law and
morals, thus proceeds: “Austin, by establishing the distinction be-
tween law and morals, not only laid the foundation for a science of
law, but cleared the conception of law and of sovereignty of a number
of pernicious consequences to which in the hands of his predecessors
it had been supposed to lead. Laws, as Austin has shown (Lecture
VI., p. 275), must be legally binding; and yet a law may be unjust.
Resistance to authority cannot be a legal right, and yet it may be a
virtue. But these are only examples. Into whatever discussion the
words ‘right' and ‘justice ’ enter, we are on the brink of a confu-
sion from which a careful observance of the distinction between law
and morals can alone save us. Austin has shown not only what law
is, but what it is not. He has determined accurately the boundaries of
its province. The domain he assigns to it may be small, but it is
indisputable. He has admitted that law itself may be immoral, in
which case it is our moral duty to disobey it; but it is nevertheless
law, and this disobedience, virtuous though it may be, is nothing less
than rebellion ” (Markby, “Elements of Law,” 2d ed., London, 1889,
§ 12, p. 4). The justness of these observations may be admitted with-
out admitting the correctness or sufficiency of Austin's definitions of
law and sovereignty.
O UAE ZA PV ZAV / TS O/LD HOME. 7
Continental, and particularly German, commentators Lecture
upon the law have not always, if indeed they have I.
ever, fully made this separation, — a separation so
essential to the advancement of legal science. I
quite agree with Professor Amos, who, referring to
this subject, says: —
“It cannot be denied that the best and most Conti.
© © sº wº nental
“ philosophical thinkers of Germany, cognizant as ºf
“they are of the true relations of law and morality, i.
“ and of legal and moral terms, have to a certain hº*
“extent contributed to popular confusion by their
“reluctance to abstract, even provisionally, law
“from its moral surroundings. This abstraction
“has nowhere been so completely achieved as by
“Englishmen. The result of this philosophic tend-
“ency in Germany has been to merge the scien-
“tific treatment of law in the larger region of
“general ethical inquiry; and consequently, instead
“of the science of law making an even and inde-
“pendent progress of its own, it has undulated with
“every wave of ethical speculation, and has conse-
“quently suffered the retardation incident to the
“growth of the most involved because the most
“composite branch of intellectual research.” " -
1. Amos, “The Science of Law,” New York, 1876, chaps. i., ii., iii.
A most striking illustration of the correctness of Professor Amos's
observations may be found in the work of Professor Lorimer above
cited. It is written in the spirit and pervaded by the doctrines of the
German philosophic school. It has all the speculative interest and
charm that a vigorous and captivating style can give it, but it is
essentially an exotic. As a practical lawyer brought up in the English
school, and for a lifetime accustomed to its views and methods, it may
be that I underestimate the value of speculations of the German
philosophers; but I am unable to see that their views and methods
are capable of being transplanted with any considerable advantage
8 A WS AAWD 9 OR/SPAC/DZAVCE.
Lecture
I.
Science of
law to be
distin-
guished
from the
science of
politics.
Our law is
synony-
mous with
the leg
terroe.
Again, by the phrase “our law 'I do not mean
|
to include what may be called the science of politics
or government, although this also stands closely
related to law, and in many points in direct contact
with it. Strictly speaking, the science of politics
or of government falls within the domain of the
statesman or legislator."
I mean by “our law "what Magna Charta calls
the lea, terræ, the law of the land, - the law of the
into our jurisprudence. Professor Lorimer treats of the principles
of jurisprudence from the standpoint of nature, and his work is pro-
fessedly intended to exhibit jurisprudence as a branch of what he
calls the Science of nature. Like the Continental jurists generally, he
not only does not firmly discriminate law from morality, but insists
that jurisprudence is only a compartment of the doctrines of matural
law, - Naturrecht, — which is the ideal standard by which all enact-
ments and legal principles are tested. Venturing no opinion concerning
other and unfamiliar systems of law, it is my judgment that our law
must be primarily —I do not say exclusively, but primarily — studied,
not from the standpoint of nature, — Naturrecht or Rechtsphilosophie,
— but from the lessons of recorded experience, especially as these
are embodied in our statutes, law reports, commentaries, and his-
tory. Fruit grown on this native soil is indigenous, hardy, and
suited to our wants. Naturrecht has been called “jurisprudence
in the air,” and Continental stock grown in England and in this
country has so far borne no very promising fruit, but rather — if I
may be pardoned a simile that has often occurred to me — orchids,
having, indeed, a weird beauty, curious to look upon, but living on
the air, and sending down no strong and stringy roots into the soil.
I have often been led to doubt the permanent intrinsic value of
Austin's labors; but conceding his definition of law to be inadequate
even to the extent of being misleading, it must be admitted, I think,
that we are largely indebted to him, among other things, for the clear
and effectual partition of the fields of law and morality.
* The relation of law to politics, or the science of government,
and the necessity for the purposes of the lawyer of marking and
observing the distinction between them, are treated with his accus-
tomed clearness and elegance by Sir Frederick Pollock in his “In-
troduction to the History of the Science of Politics,” London, 1890,
passºm.
O OVA2 ZA PV ZAV ZZTS O ZZO HOME. 9
z—
land as it actually exists in distinction from what in
the view of the law reformer or of the legislator or
of the jurist it is conceived or believed it ought to
be. “Law" and “legislation ” are by no means
synonymous. The work of consciously changing
the law from what it is to what it ought to be is the
work of the legislator. This work may, and indeed
usually does, fall largely into the hands of and is
moulded by the lawyer in his capacity as a states-
man or legislator, or the adviser of these; and thus
legislation, especially in modern times, has become
the usual and effective instrument for changing or
amending the law, or making needful or special
additions to it.
One might, à priori, think it were easy to define
law. Grave mistake ' Whoever has studied this
subject feels an overpowering sense of its difficul-
ties, – difficulties which seem to be beyond the
reach of the most enlightened and trained intellects,
and to overwhelm them with a consciousness of their
own insufficiency. It requires a bolder man than I
to propound a definition of the law of the land which
shall be at once comprehensive and accurate. Vol-
umes have been written upon this precise subject,
with, to me at all events, no satisfying result.
Blackstone's definition, following Hobbes's," is the
1 Hobbes's definition of law is thus: “Law in general is not counsel,
but command; nor a command of any man to any man, but only of
him whose command is addressed to one formerly [that is, already by
having agreed to be his subject] obliged to obey. And as for civil
law, it addeth only the name of the person commanding, which is
persona civitatis, the person of the Commonwealth.
“Which considered, I define civil law in this manner. Civil law
is to every subject those rules which the Commonwealth hath com-
i SLecture
\
W
\ %
\
\
|
Difficulty
of defining
the term
“ law.”
IO LA WS AAWD 3'URISPRUDENCE,
one best known to the profession, and is in these
words: —
| “Municipal law is a rule of civil conduct, pre-
‘scribed by the supreme power in a State, com-
* manding what is right and prohibiting what is
“wrong.”" - .
I cannot, after much reflection, but regard this
definition as both inadequate and incorrect. To
make it cover the actual body of the whole civil
law of a State, the word “prescribed ” and the word
“command” here used must be given an elasticity
of meaning, or an artificial meaning, not consonant
with the general or appropriate use of these words.
Austin's definition of law is similarly defective,
and the same criticism applies. “Law,” according
to Austin, “is the aggregate of rules set by men as
“ politically superior or sovereign to men as politi-
“cally subject.”
Lecture
I.
Black-
stone's
definition
of law.
Austin's
definition.
manded him by word, writing, or other sufficient sign of the will, to
make use of for the distinction of right and wrong, — that is to say,
of what is contrary and what is not contrary to the rule.” Leviatham,
chap. xxvi., “ of Civil Laws,” English ed., 1651, p. 137. Comment-
ing on this Sir Frederick Pollock says: “Right and wrong in the
legal sense are that which the State has allowed and forbidden, and
nothing else. To understand this is one of the first conditions of
clear, legal, and political thinking, and it is Hobbes's great merit to
have made this clear beyond the possibility of misunderstanding. No
one who has grasped Hobbes's definition can ever be misled by verbal
conceits about laws of the State which are contrary to natural right,
or the law of nature not being binding. All Such language is mis-
chievous, as confusing the moral and political grounds of positive
law with its actual force.” “History of the Science of Politics,”
pp. 60, 61.
1 1 Blacks. Com., 44. See Hammond's notes in his edition of
Blackstone, vol. i., pp. 120–165, on the “Nature of Laws.”
* Austin, “Jurisprudence,” vol. i., lect. i., 5th ed. Campbell's,
p. 86 et seq. Professor Clark, of the University of Cambridge, in his
O UVR Z.A PV ZAV ZZTS OAZO AEWOAZAZ. II
The definitions of Blackstone and Austin are
apt and accurate as applied to the great body of
what we may call the ordained or enacted law of a
State. But there is a large body of law to which
the term “rules prescribed ” or “commands” or
“rules set" by a sovereign does not apply, except
by subjecting these words to a strain which alters
or greatly expands their proper meaning.
This subject has been carefully considered by
Professor Holland in his “Elements of Jurispru-
dence,” and I may adopt as sufficiently accurate for
my present purpose (although with a conscious
º of its inadequacy) his conclusion that law may
\be defined as a general rule of civil conduct or of
"external human action, enforced, or at all events
purporting to be enforced, by a sovereign political
authority." Consequently we can recognize as laws
proper only such rules as are enforced or enforce-
“Practical Jurisprudence: A Comment on Austin,” 1883, devotes the
sixteen chapters of Part I. to “The Definition and Origin of Law,”
and the sixteen chapters of Part II. to “The Form of Law,” where
the voluminous literature and learning concerning these subjects are
well summarized and critically discussed.
* This is the result of Professor Holland’s elaborate discussion of
the subject in chaps. i.-viii., in his “Elements of Jurisprudence,”
2d ed., London, 1882; more particularly pp. 18, 34, 35, 43, 62, 66, 69.
His definition avoids the error of Blackstone’s and Austin’s limitation
of law to something that is “ commanded ” or “prescribed ” or “rules
set by a sovereign.” Pollock’s review and comments thereon, see
“Essays in Jurisprudence,” London, 1882, pp. 1–18. Sir William
Markby approves of Austin’s definition of law, and sums up his own
conception of the term “law "as follows: “That it is the general body
of rules which are addressed by the rulers of a political community
to the members of that society, and which are generally obeyed.”
Markby, “Elements of Law,” chap. i., § 9, p. 3. “Rules addressed,”
etc., mean the same things as Blackstone’s “rules prescribed ” or
Austin’s “rules set,” and are open to the same criticism.
Lecture
I.
Holland's
definition
of law.
I 2 ZA WS AAWD 70A:/SPRUDEAVCE.
Leºne able by a sovereign political authority, - that is,
— the State. As a result, law, as the lawyer has
R. to deal with it, is concerned only with legal rights;
esult
summed and by legal rights are meant only such rights as
up. are recognized and enforced by the power of the
| State. The thing to remember is that coercion by
\the State is the essential quality of law, distinguish-
\ing it from morality or ethics. Nothing is a legal
right unless it implies a capacity residing in one
person of controlling, with the assent and assistance
of the State, the actions of others; and that which
gives validity, or at least effect, if not existence,
to a legal right, is in every case the force which is
lent to it by the State. Duty is the correlative of
right, and duty in a legal sense implies a sanction
or amenability to sanction, which sanction it is the
function of the judicial tribunals to apply and en-
force. Whatever rights and duties they thus recog-
nize and enforce are legal rights and duties, and for
practical purposes none others fall within the domain
of law so far as lawyers and courts are concerned.
| A moral right, if disregarded, will be viewed with
public censure or disapprobation, but that is all; a
legal right, however, if disregarded, will be enforced
by the public will of the organized society which is
called the State." -
While we must for all purposes of legal science
and jurisprudence keep the boundaries of law and
ethics distinct, it would be a most serious error for
the lawyer to conceive or suppose that he has to
do only with constitutions and statutes and decided
1 Holland, passim, chaps. iii., iv., vii., viii.
OUR LA W IAW /TS O/LD HOME. I3
cases, and that these constitute all there is of law. Lecture
Law, even municipal or civil law, is vastly more I.
than Blackstone's and Austin's stereotyped and
imperfect definition makes it, — “a command of
the sovereign,” “a rule of civil conduct pre-
scribed by the supreme power in a State,”— if
by this is meant something always originating
with and created de novo by the legislature, — a
mere product of sovereignty, of legislation, — and
which, therefore, the legislator can determine, fix,
and mould, as clay in the potter's hand, at his
pleasure.
What the sovereign authority in other countries origin, na-
(Parliament, for example, in Great Britain), or Con- **
gress or a State legislature in this country, acting ...;
within constitutional limits, commands, is indeed ".
law; and nothing in a legal sense is law, in whatever
shape existing, which the State will not enforce. And
yet it is true that the body of such commands, even
if the State may by artifice of speech be supposed
to command whatever it permits to its judges, does
not represent the totality of the civil or municipal
law of any given State." If you ask me to define
1 In the scholarly and able address of Mr. James C. Carter before
the American Bar Association (Reports of the Association for 1890,
p. 217), this eminent lawyer condenses and states with clearness and
force the argument against the Austinian conception and definition
of law, and he shows that the law of a State is much more than the
body of commands proceeding from the legislature or sovereign.
Mr. Carter ascribes the unwritten law mainly to custom. I think it
is derived, especially in modern times, still more largely from the
general sense of justiee and right as interpreted and ascertained by
the judges than from “custom" in the usual sense of that word.
| Sir Henry Maine's last two Lectures (XII. and XIII.) in “Early
History of Institutions" materially undermined, or at least limited,
Austin's theory of command and sovereignty.

I4 M.A WS AAWD 707R/SPA’ODEAVCE.
Lecture
I.
Origin, na-
ture, and
ethical
founda-
tions of
law (con-
tinued).
law, I can, speaking as a lawyer, do no better than
to adopt Professor Holland's definition already
given. If you ask me to enumerate all of the
ultimate sources whence legal rights and duties
originate, and how these are evolved, I hide my
diminished head, and confess my inability satisfac-
torily to formulate an answer. Law is not ethics,
it is true; but except so far as laws are abitrary or
conventional regulations, or are mere usages and
customs not having a moral quality, -if there be any
such, – they have an ethical foundation. Laws are
to be found in part expressed in written constitutions
and statutes, and in part the evidences thereof will
be found in judicial decisions, in the commentaries
and works of learned men; and yet, with all their
voluminousness, the law is not to be found in these
it alone. These constitutions, statutes, judicial deci-
sions, and treatises are numbered by thousands.
They are almost unknown to the mass of men;
they are at best imperfectly known to lawyers; and
yet so it is that any man who in good faith obeys
the dictates of a pure and honest heart, whose civil
conduct toward his fellow-men is guided by the
sense of justice and right which is graven on his
heart by the supreme Law-giver, — will find such a
course of conduct, except in the rarest instances, to
be in perfect conformity with the requirements of
the laws of his country. This is to me conclusive
proof of the essential ethical nature and foundation
of our laws, and also conclusive proof that laws are
w |
l
something more than a body of commands in any
real and proper sense of the word.
If you will critically examine the long catalogue of
OOA” LA W //V / 7 S OL/D AſOMAE. I5
legislative enactments found in the Revised Statutes
of the United States, or in the statute books of any
of the States or of Parliament, you will find that the
most of them relate to positive regulations of expe-
diency, and not to the great and permanent doctrines
of general or universal justice or jurisprudence.
Prolific as the various legislatures are in the exer-
cise of the function of legislation, yet how infinitesi-
mal compared with the vast aggregate of our laws
and jurisprudence is the work of any given legis-
lature, or even the combined work of all the legisla-
tures, from the beginning down to this present.
Thus much as to the differentiation in general of
law and legislation, and as to the essential nature
of law as the equivalent of the enlightened, ethical,
permanent justice of the State. *
These views are enforced by considerations of
the necessity, purpose, and effect of our American
written constitutions, since these are our supreme
law; and in these the people have embodied not
only their deliberate judgment as to the best form in
which to mould the framework of their government,
but they have also infused and incorporated therein
their highest, their best, their loftiest conceptions of
the fundamental rights and duties on which the
organic, permanent justice of the State rests.
In considering, therefore, what law is, under
the limitations of our written constitutions, Fed-
eral and State, it is first of all necessary to get rid
of the idea that law is whatever the populace of
the moment may determine to be their sense of ex-
pediency or right, even though enacted by a legis-
lative majority. An adequate and just regard for
Lecture
I.
Constitu-
tional lim-
itations as
affecting
law.
I6 ZA WS AAWD # CVR/SPA’UDAEAVCE.
Lecture
I.
Retroac-
tion of
moral
upon civil
law.
law, and the obligation of all men, including those
in authority, not only to recognize their subjection
to law, but to cherish, preserve, and obey it, can, as
I think, in no way be better inculcated, strength-
ened, and enforced, than by correcting the erroneous
conception that law is in its essence the mere pro-
duct of the popular will or of a legislative majority
of the hour, and by contemplating the higher and
purer sources of law, and thus to become saturate
with the great truth that law and legislation are not,
in this country at any rate, necessarily equivalents,
but that law in its more engaging and nobler as-
pects, and in its essential nature, is “ the beneficence
of civil society acting by rule; ” is “ the absolute
“justice of the State enlightened by the perfect rea-
“son and morality of the State,” as ordained, estab-
lished, and declared in the constitutions.
Law in its nature is therefore opposed to all that is
fitful, capricious, unjust, partial, or destructive; and
happily legislative enactments of this character will
in general be found to be in conflict with some one
or more of the express provisions of the organic
law, and therefore void."
Kant's philosophy is to me, I am sorry to confess
(for it may be my fault), in general unprofitable
enough in practical results; but there is one noble
passage of his that made on me an impression that
years have never effaced or dimmed: “There are
“ two things which, the more I contemplate them,
“the more they fill my mind with admiration, —
“the starry heavens above me, and the moral law
“within me.”
1 See post Lecture VII.
O OVA’ CA VV //V /7'S O/C/O HO/A2. 17
Not less wondrous than the revelations of the
starry heavens, and much more important, and to
no class of men more so than to lawyers, is the
“moral law " which Kant found within himself,
and which is likewise found within and is con-
sciously recognized by every man. This moral law
holds its dominion by divine ordination over us all,
from which escape or evasion is impossible. This
moral law is the eternal and indestructible sense of
justice and of right written by God on the living
tablets of the human heart, and revealed in his Holy
Word. It is considerations of justice and right that
make up the web and woof and form the staple of a
lawyer's life and vocation. The lawyer's work and
business are, it is true, with human laws; but let me
repeat, the lawyer makes a grievous mistake who
supposes law to be the mere equivalent of written
enactments or judicial decisions. Theoretically,
and for many purposes practically, lawyers must
"discriminate law from morality, and define and keep
separate and distinct their respective provinces.
But these provinces always adjoin each other; and
ethical considerations can no more be excluded from
the administration of justice, which is the end and
purpose of all civil laws, than one can exclude the
vital air from his room and live. A thousand times
have I realized the force of this truth. If unblamed
I may advert to my own experience, I always felt in
the exercise of the judicial office irresistibly drawn to
the intrinsic justice of the case, with the inclination,
and if possible the determination, to rest the judg-
ment upon the very right of the matter. In the
practice of the profession I always feel an abiding
Lecture
I.
Retro-
action of
moral
upon civil
law (con-
tinued).
2
I 8 ZA WS AAWD jº/R/SPAC/DEAVCE.
Lecture
I.
Practical
impor-
tance of
COrrect
theory as
to nature
of law.
Conclud-
ing obser-
vations
on the
relations
between
law and
morality.
confidence that if my case is morally right and just
it will succeed, whatever technical difficulties may
appear to stand in the way; and the result usually
justifies the confidence.
The views which one holds as to the sources and
nature of law are not of speculative interest merely,
but have direct practical bearings of the most im-
portant character, — as, for example, on the true
method of legal education, and on the true function
and scope of legislation. If law were simply com-
mands or rules prescribed or set by a sovereign,
the natural way to learn it would be by a study
of such commands or rules and their application ;
whereas the law can only be thoroughly and com-
prehensively learned by a consideration of the
various relations of individuals to the State and to
each other, out of which relations legal rights and
corresponding duties arise, only part of which take
the form of a legislative command."
It is obviously with such relations that the legis-
lator has necessarily to deal whenever he enters
upon the work of legislation; and we shall see in
the course of these lectures how essential it is to
understand both how law and legislation are dif-
ferentiated from as well as related to each other.”
The subject of the relations of law and ethics is
full of delicate and difficult considerations. It is
1 This subject, namely, the theory of law in its relations to legal
study, is presented in the two valuable reports of the Committee on
Legal Education, 1891, 1892, to the American Bar Association. Re-
port, 1891, pp. 336, 337; Report, 1892, pp. 355–359; reprinted by the
United States Bureau of Education, see “Report on Legal Education,”
1893, pp. 33–36.
* See post Lectures IV., VIII., IX, X.
OUA’ ZA VV //W /TS O/C/D AIO/l/A2. I9
more easy to be lured into than to avoid a field
of unprofitable speculation where, like Milton's
metaphysical angels, one “finds no end in wan-
dering mazes lost.” In what I have said I have
resolutely resisted this temptation. Where the legis-
lative will is silent, and there is no customary law
or precedent, the judges frequently have no guide
but what is well termed in our law “equity and
good conscience.”" In such cases I do not believe
it is possible, or, if it were, that it is desirable, to
separate dogmatically the domain of law from that
of ethics. I therefore venture, in concluding this
topic, upon the following observations. Legislation
belongs to or is a branch of ethics; the legislator in
the exercise of the function of legislation not only
regards ethical considerations, but such consider-
ations are generally the foundation or animating
principle of his enactment. In modern times the
judicial and legislative functions are not only dis-
criminated, but separated. Yet the separation,
while theoretically complete, is perhaps never
actually so; and therefore judges, in and by the
very exercise of their duty of adjudication, are,
as I have said above, obliged in many cases,
where the legislative will is silent and the case
is novel, to legislate. Now, so far as the separa-
tion of the judicial and legislative functions is
actually complete, it is easy to distinguish the
provinces of law and morality. But in so far as
1 Chancery relieves “according to the principles of conscience,
good faith, honesty, and equity.” 1 Spence’s Equity, Part II., Book
I., chap. iii., pp. 335–339; Ib., Book II., chap. i., p. 407, and illus-
trations.
Lecture
I.
Relations
between
law and
morality.
2O LA WS AAWD # CVR/SPACOZ) FAWCAE.
Lecture
I.
The term
“juris-
prudence ’’
defined.
the judges are compelled, as they not infrequently
are, to exercise what is really a creative power
and to make a new rule, – in a word to exercise,
albeit covertly or circuitously, the function of
legislation, — it seems to me that they are right-
fully, because necessarily, within the domain of
ethics, and that in such cases the domains of ethics
and law are not and cannot be delimited in advance,
nor until the line is drawn by the judges in and
by the opinion and judgment which are given in
the particular case.
The process of marking out what is meant by
the term “law" would be incomplete unless we also
marked out what is meant by the word “jurispru-
dence,” which is in such familiar use. Well, “juris-
prudence ’’ is almost as difficult to define as “law,”
because of the varied senses in which that word is
used by our judges and commentators. Our older
law writers do not use the word. For example, I
do not recollect that it occurs in Lord Hale’s “His-
tory of the Common Law.” Professor Holland
devotes the first chapter of his “Elements of Juris-
prudence” to a consideration of the meaning of the
term. He reaches the conclusion that it “ought to
be used without any descriptive epithet” to denote
the “formal science of actual, positive law; ” and it
is his opinion that “jurisprudence deals with the
“various relations which are regulated by legal
“rules, rather than with the rules which regulate
“ those relations.” While he criticises as improper
the current use of the word as the equivalent of
“law,” as in the phrases “English jurisprudence,”
OOW/º LA VV ZAV / 7.S. O/C/D AſOA/A2. 2 I
“equity jurisprudence,” and the like, he admits
that it is unobjectionable to speak of “criminal"
and “civil,” and “public” and “private,” jurispru-
dence. I do not doubt that Professor Holland's
definition of the term marks out its meaning with
scientific correctness for the purposes of his work,
and as descriptive of jurisprudence in the abstract;
but his definition is more limited than its ordinary
use in our legal literature. Law, as I have shown,
is the collective and appropriate name for the entire
body or system of rules, regulations, principles, and
enactments which are recognized and protected by
the State, and which the State will compulsorily
enforce when required. Accordingly, I use the
word “jurisprudence” as synonymous broadly with
the whole science of the law as law is thus defined,
and as embracing not only legal relations but the
entire body of legal doctrines, whencesoever derived,
applicable to such relations. I therefore venture to
state that it is a correct use of the term to refer
to branches or heads of general jurisprudence by
such qualifying words as “English ’’ or “American
jurisprudence,” “equity jurisprudence,” “criminal
jurisprudence,” and the like. Shortly stated, juris-
prudence is concerned with the whole body of the
law, and signifies the science of law, or the scientific
knowledge of jural relations and the legal principles,
doctrines, and rules which govern such relations."
1 Jurisprudence is defined, its methods and purposes set forth, its
relations to law and ethics thoughtfully considered, and what is more
important, wise and sound views are inculcated and enforced, by Sir
Frederick Pollock in his “Oxford Lectures and other Discourses "
(London, 1890, Papers I., II.), as well as in his previous book, “Essays
in Jurisprudence and Ethics" (London, 1882, particularly Papers I,
Lecture
I.
The term
“juris-
prudence"
defined
(con-
tinued).
22 M.A WS AAWD 70FISPRUDEAVCE.
Lecture
I.
Our law
always has
been and
is a sys-
tem dis-
tinct from
the Civil
or Roman
law.
Again, by the phrase “our law” I mean the
English and American system of law as distin-
guished from all other legal systems, and particu-
larly from the Roman or Civil law. It is a most
remarkable fact that if one casts his eye over the
map of the enlightened world he will find, generi-
cally speaking, but two systems of law or jurispru-
dence, — the one of England, the other of Rome.
The legal systems of the nations of the continent
of Europe and of the South American States are
based upon the Roman law; but the Roman law
never obtained controlling authority in or among
any people who speak the tongue of England.
“None of the great nations,” says Mr. Justice
Markby, “founded on the continent of Western
“Europe after the fall of the Roman Empire, has
“constructed an independent legal system of its
“own. France, Italy, Austria, Germany, Holland,
“and Spain have every one of them adopted the
“Roman law as their general or common law, and
“have only departed from it so far as particular occa-
“sions might require. Every gap not filled up by
“special legislation, or specially recognized custom,
“has been supplied from the Roman law, and even
“modern codes to a very large extent only contain
“the ideas of the Corpus Juris in a nineteenth-
“century dress.”
II., XI.). “Amongst civilians the teaching of Jurisconsults by a
system of treatises or commentaries is called Doctrine; the decision
of the Courts is called Jurisprudence ; the other source of law is
Legislation. An accomplished civilian rarely confuses these terms.”
Mr. Justice Bradley, of the United States Supreme Court, manuscript
letter to the author.
1 Sir William Markby, “Elements of Law,” 4th ed., London,
1889, § 85.
OOWA’ ZA W //V IT'S OWL/O AEWOA/A2. 23
It was for some time the received notion that the
Roman law ceased to exist in Europe until it was
revived upon the discovery of the Corpus Juris at
Amalfi when that city was taken by the Pisans in
1135. But Savigny and others have shown that
this was altogether a mistake, and that the law of
the Romans in general displaced the law of the con-
Querors, and was adopted as the law of the land.
By one nation alone, in the territorially small
kingdom of England, was the force of Roman
law combated and resisted. English lawyers, Eng-
lish judges, and English parliaments, as often as
it was attempted to introduce the Corpus Juris as
an authority in England, stubbornly resisted it.
Glanvill, Fleta, and Bracton were saturate with the
Roman law, and incorporated principles of the Ro-
man law in their works professing to treat of the
laws of England. But it is interesting to note that
in a case quoted by Fitzherbert in his Abridgment,
decided in the 35th Henry VI., the court is rep-
resented as agreeing that “ Bracton was never
accepted as an authority in our law.” Markby
refers to this, and also to the case of Stowel against
Lord Zouch," wherein Saunders in argument is
reported to have said: “And to this purpose he
“cited Bracton, not as an author in the law, for he
“said that Bracton and Glanvill were not authors in
“our law ; but he said he cited him as an ornament
“to discourse where he agrees with the law.””
* Plowden's Reports, vol. i., p. 357.
* Elements of Law, § 89, p. 55, note. Markby adds: “As far as
I am aware, neither Bracton, Fleta, nor Glanvill is ever quoted in
the Year Books. . . . I am not aware upon what authority the state.
Lecture
I.
The Com-
mon law a
system.
distinct
from the
Roman
law.
24 A WS AAWD 3'URISPRUDEAVCE.
Lecture
I.
Fortunate
results of
the suc-
cessful ex-
clusion of
the Roman
law as a
system
from Eng-
land.
It would be a curious and not uninstructive spec-
ulation to consider what would have been the effect
if the Roman law had acquired the same foothold
and influence in England that it acquired on the
continent of Europe. I cannot forbear quoting
on this point—for I think they will interest you
— a few striking sentences from Sir Frederick
Pollock : —
“From the storm floods that made wreck of the
“Roman Empire there emerged, defaced but not
“broken, the solid fabric of Roman law. Not by
“any command or ordinance of princes, but by the
“inherent power of its name and traditions, Roman
“law rose again to supremacy among the ruins of
“Roman dominion, and seemed for a time supreme
“in the civilized world. In only one corner of
“Europe it finally failed of obedience. Rude and
“obscure in its beginnings, unobserved or despised
“by the doctors and glossators, there rose in this
“island of England a home-grown stock of laws
“and a home-grown type of legal institutions."
“They grew in rugged exclusiveness, disdaining
“fellowship with the more polished learning of the
ment of Bracton's influence on English law rests.” Ib., § 89, note.
“All the writers I have named (Bracton, Fleta, Glanvill) attempted
to introduce the principles of the Roman law into English courts by
incorporating them into works professing to treat of the laws and
customs of England. But the attempt met with little success. It
was perhaps due to this very admixture of Roman law that the
authority of even so accomplished a writer as Bracton was repudiated
so emphatically by the judges.” Ib., § 89, text. The subject of
the connection of the civil and common law is learnedly discussed by
Professor Hammond in the notes to his edition of Blackstone’s Com-
mentaries, vol. i., pp. 39–65.
1 See post Lecture V.
oUK ZAW MA 17s of D HOME. 25
*_*
“civilians, and it was well that they did so ; for,
“had English law been in its infancy drawn, as at
“one time it seemed likely to be drawn, within the
“masterful attraction of Rome, the range of legal
“discussion and of the analysis of legal ideas would
“ have been dangerously limited. Roman concep-
“tions, Roman classification, the Roman under-
“standing of legal reason and authority, would
“ have dominated men's minds without a rival. It
“is hardly too much to say that the possibility
“of comparative jurisprudence would have been in
“extreme danger ; for, broadly speaking, whatever
“is not of England in the forms of modern juris-
“prudence is of Rome or of Roman mould. In
“law, as in politics, the severance of Britain by a
“world's breadth from the world of Rome has fos-
“tered a new birth which mankind could ill have
“spared. And the growth of English politics is more
“closely connected with the independent growth
“ and strength of English law than has been com-
“monly perceived, or can be gathered from the
“common accounts of English history.”
1 Oxford Lectures, London, 1890, Lecture II., pp. 46, 47, 48. It
is an interesting fact that the work which most satisfactorily illus-
trates the important subject referred to in the last sentence in the text
quoted from Sir Frederick Pollock was written in distant Australia
by Chancellor Hearn of the University of Melbourne, — “The Govern-
ment of England,” 2d ed., London, 1887. Professor Dicey makes this
acknowledgment: “Professor Hearn’s ‘Government of England’ has
taught me more than any other single work of the way in which the
labors of lawyers established in early times the elementary princi-
ples which form the basis of the [English] constitution.” Preface to
“The Law of the Constitution,” 2d ed., London, 1886. I can truly
say that in my judgment Mr. Hearn's work merits the high estimation
in which it is thus held.
Lecture
I.
Effect of
the exclu-
sion of the
Roman
law.
26 A WS AAWD AC/R/SPA'UDEAVCE.
Lecture
I.
Vast ex-
pansion
and influ-
ence of the
English
law.
When the lawyers, the judges, the nobility, and
the commons of England so persistently and suc-
cessfully resisted the innovation of the Roman law,
they little foresaw, perhaps, the great and benefi-
cent consequences in future times of their action;
for such is the wide and vast expansion and influ-
ence of English laws that in our day they more
than rival the law of the Roman Empire. You
may recall Webster's famous description of Eng-
land as “a power to which Rome in the height
“ of her glory is not to be compared ; — a power
“ which has dotted over the surface of the whole
“globe with her possessions and military posts,
“whose morning drum-beat, following the sun and
“keeping company with the hours, circles the earth
“with one continuous and unbroken strain of the
“martial airs of England.” In this magnificent
passage the flag of England is made to symbolize
the military power of England. But to the lawyer
it also and equally symbolizes the reign of English
law. Wherever, in either hemisphere, you find an
English settlement, there also will be found the
law of England. More powerful than armies, the
English law holds under subjection in India over
240,000,000 of people.” It supplies the rule of
action in all the British colonies and possessions.
Our own country has become the theatre of the
1 Webster's Works, vol. iv., p. 110, Little & Brown's ed., 1851.
2 “In 1877 British India comprised 1,500,000 square miles, and
contained about 240,000,000 of inhabitants.” Kolb, “Condition of
Nations,” 1880, translated by Mrs. Brewer, p. 155. “Far more numer-
ous than the Christians are the Mohammedans, and the Empress of
India undoubtedly rules over many more followers of the Prophet than
does the Turkish Sultan, nearly 41,000,000, in India.” Ib., p. 157.
O UAE Z.A. W. ZAV / 7.S. O/L D HO//Z. 27
most wonderful extension and development of Eng-
lish law, since that law constitutes, as I shall show
in a subsequent lecture, the basis of the system of
law in all, or in all but one or two of the States
of the American Union; and even in these it has
so modified or supplemented the Roman system as
almost to dominate it. -
Now the form of this law, or rather its want of
form or of scientific or methodical arrangement, is
as remarkable as its history. The main body of
this unique system of laws, everything in fact that
goes under the comprehensive description of the
Common Law, is “unwritten,” using this word in
distinction to positive or statutory law. This so-
called unwritten law constitutes the great bulk of
the English and American system of law. Of this
system the lawyers and the judges are the visible
artificers. “The State has,” as Professor Holland
says, “in general, two, and only two, articulate
“organs for law-making purposes, – the legislature
“ and the tribunals. The first organ makes new
“law; the second attests and confirms old law,
“ though under cover of doing so it introduces
“many new principles.””
The existing body of English case law has been
mainly the work, the stupendous work, of judges
and lawyers extending in almost unbroken reach
through several hundred years. It has not been
excogitated by any single brain ; it is not the
product of any determinate number of minds, but it
has been the slow work of ages, constantly growing
and ever changing. It is never stationary, and
* Elements of Jurisprudence, chap. v.
Lecture
I.
Lawyers
and judges
are the
main arti-
ficers of
the Eng-
lish law.
28 A WS AAWD 90A/SPA’UDEAVCE.
Lecture
I.
never can be. It can never reach a fixed and final
form. English law in the shape in which we have
it is thus essentially a growth, a historical develop-
ment, — the work, I repeat, chiefly of the lawyers
and judges of England through a succession of
centuries. -
As the lawyers and judges of England are the
main builders of the English law (at least as re-
spects its repositories and its external and authori-
tative form), it is at all events interesting — and
in my judgment it is in no small degree necessary
to a thorough conception of the manner in which
they have wrought this great work, and of their
fitness for it — to understand the methods of the
legal education, training, and discipline of the bar,
and the nature of the powers, functions, and duties
of the judges. And here it is to be observed that the
judges in England are not a distinct branch of the
profession, but are merely eminent members of it,
selected for judicial office by reason of qualifications
and character." So that, in fact, the fashioning of
the laws of England is, in its last analysis, the work,
not of lawyers and judges, but in a broad sense the
work of the bar, of whom the judges are an integral,
and in virtue of the functions and powers of the
judicial office a most important, part.
The extant English judicial records do not begin
until 1194 (Mich. 6 Rich. I.). We have a series of
Reposi-
tories of
English
law.
* “From an early time our judicial system has been independent
of Continental culture, and singularly independent of the other depart-
ments of the government. The judges have not been a special branch
of the profession, but selected, under an efficient criticism of skilled
opinion, from the profession at large.” Pollock, “Oxford Lectures,”
London, 1890, p. 25. See post Lecture II. .
OUR Z.A. W. ZAV / 7'S O/C/D HOME. 29
such records from 1384 (6 Rich. II.). The first law
treatise by Glanvill was not written before 1187.
The law reports begin in 1292. The knowledge of
the laws of England prior to the twelfth century is
in many points obscure and uncertain. From that
time, however, the growth and development of these
laws can be traced in the parliamentary and official
records, treatises, and law reports.
By the time of Edward I., if not before, we reach
the important era when the judicial office is sep-
arated from the kingly office, and when justice
is administered by the judges and in the judicial
courts.” I have not time to unfold all that this sim-
ple statement implies, or to set forth its great, per-
manent, and beneficent consequences. To this fact
may indeed be traced nearly all that in the course of
these lectures I shall say concerning the merits and
value of the laws of England and America as they
now exist. I can only remark that administering
justice by and through the judges and in the courts
theoretically means, and for two hundred years has
actually meant, that the judges are free from any
1 Markby, “Elements of Law,” $90. 5 Harvard Law Review, 1892,
p. 252, Professor Thayer's paper on “The Jury and its Development.”
* “We may say,” remarks Freeman, “that in the time of Edward I.,
A. D. 1272–1307, the English Constitution definitely put on the same
essential form which it has kept ever since. . . . From that time
English constitutional history is not merely an inquiry, however
interesting and instructive, into something which has passed away.
It is an inquiry into something that still lives; it is an inquiry into
laws which, whenever they have not been formally repealed, are in
full force at this day. Up to the reign of Edward I. English history
is strictly the domain of antiquaries. From the reign of Edward I.
it becomes the domain of lawyers.” Freeman’s “Growth of the
English Constitution,” chap. ii.
Lecture
I.
Merits of
our legal
system
due to the
mode of its
evolution
in the ju-
dicial
CourtS.
3O ZA WS AAWD 9:0A/SPAC/D/E/WCE.
Lecture
I.
Merits of
our légal
system
due to its
judicial
evolution.
control or interference by the Crown or Parliament,
and that the King, though in legal theory the foun-
tain of justice, cannot pronounce any judgment, or
in the slightest degree infringe or authorize an in-
fringement upon the legal rights of the least of his
subjects." It means that the judges must be selected
from the bar; and until very recently the common
law judges had to be of the degree or estate of
serjeant-at-law, long the highest, and never in point
of learning an inferior, rank in the profession.” The
judges act under the solemnity of an oath of office.
They sit in public. They must hear arguments on
both sides. They do not possess arbitrary power,
but are bound by positive enactments and by the
decisions of their predecessors. They must deliver
judgments openly, and in important causes state
the grounds and reasons therefor. They have the
power to enforce their judgments and decrees.
Publicity as a restraint upon judicial tyranny,
oppression, and corruption, both in its grosser and
subtler forms, is of the highest and most whole-
some consequence. The discontinuance of the
salutary practice of giving reasoned opinions is
justly regarded as one of the worst innovations of
servile judges of the Stuart period.”
1 See post Lectures IV., VIII.
* See post Lecture II.
* Hearn, “Government of England,” 2d ed., pp. 66, 71,78, 558, 562,
563. Lord Bacon condenses the matter thus: “Let not the judg-
ments of the courts be given in silence, but let the judges produce
the reasons of their sentence openly and in full audience of the court,
so that what is free in power may yet be limited by regard to fame
and reputation.” Bacon, “Advancement of Learning,” Book VIII.,
chap. iii., Aphorism xxxviii., Devey's Translation, Bohn Libraries.
The importance of judicial opinions, and of their publicity, is
ovR LA W. Ly ITS OLD HOME. 3I
The essential attributes of courts of justice, if I
may attempt to define them, are that they shall be
held by judges appointed or selected for that pur-
pose; that cases and controversies therein shall be
cast in some form of pleadings resulting in specific
issues of law or fact, in which, on issues of fact, only
competent evidence is admissible, and if not docu-
mentary, to be given under the sanction of an oath,
with the right to cross-examine; that there shall be
a public trial or hearing resulting in a judgment or
enforced by Burke in his great and (considering that he had never
been called to the bar) wonderful Report of April 30, 1794, from the
committee appointed to inspect the Lords’ Journal in relation to their
proceeding upon the trial of Warren Hastings. “Works of Edmund
Burke,” vol. xi., 4th ed., Little, Brown, & Co., Boston, 1871, pp. 29–
49, 153. It was in the course of this report that he made the fol-
lowing most weighty observations: “English jurisprudence has not
any other sure foundation, nor, consequently, the lives and properties
of the subject any sure hold, but in the maxims, rules, principles, and
judicial traditionary line of decisions contained in the notes taken,
and from time to time published (mostly under the sanction of the
judges), called Reports.” Ib., p. 42. “To give judgment privately is
to put an end to reports; and to put an end to reports is to put an
end to the law of England. It was fortunate for the Constitution of
this kingdom that in the judicial proceedings in the ease of ship-
money the judges did not then venture to depart from the ancient
course. They gave and they argued their judgment in open court.
Their reasons were publicly given, and the reasons assigned for their
judgment took away all its authority. The great historian, Lord
Clarendon, at that period a young lawyer, has told us that the judges
gave as law from the bench what every man in the hall knew not to
be law.” Ib., p. 44. “All courts,” says Lord Brougham, “ought to
sit and give their judgments in public, and the fullest liberty should
be given to the publication through the press of all their proceedings.”
“The British Constitution,” vol. ii., p. 322, Black's ed., Edinburgh,
1872. And elsewhere he observes that : “With an enlightened bar
and an intelligent people, the mere authority of the bench will cease
to have any weight at all, if it be unaccompanied with argument and
explanation.” Further as to Law Reports, see post Lectures VI., TX.,
X., and XIII.
Lecture
I.
Essential
attributes
of courts
of justice.
|
|
|
ł
32 LA WS AAWD 90R/SPA’UDEAVCE.
Lecture
Judicial
judgments
as the
source and
evidence of
individual
rights.
decree, which the court has the inherent power, by
its own officers, process and machinery, to enforce.
Such a court is the tribunal to which Mr. Justice
Blatchford, speaking for the Supreme Court of the
United States, refers in the great Minnesota case,
wherein he affirms the right of a party to “a judi-
“cial investigation by due process of law under the
“forms and with the machinery provided by the
“wisdom of successive ages for the investigation
“judicially of the truth of a matter in contro-
“versy.” The difference between judicial courts
constituted of judges, and any form of legislative
tribunal not constituted of judges but of commis-
sioners or other officials by whatsoever name they
may be called, is of vital moment to the rights and
liberties of the citizen. -
I shall hereafter take especial occasion further to
show that the rules of English law are all-embracing
in their protective energy, and that they have, in the
main, been the work of the courts which have
defined, established, and enforced them. They
have their source or authoritative evidence in the
adjudged rights of individuals. These rights,
secured by the decisions of the courts, make the
Constitution of England; they are not created
by and are not the product of the Constitution.”
These glorious characteristics, these fundamental
principles, these crowning excellences of the Eng-
lish law, have been inherited or adopted in all
their amplitude in this country. Not only so, but
1 Chicago, etc., Railway Company v. Minnesota (extent of legislative
power to fix railway rates), 134 U. S. Rep. 418, 457, 1889.
* See on this subject post Lecture VII.
O OVA' LA W WAV / 7.S. O/C/D AIOMAE. 33
we have in our constitutions, Federal and State,
placed them beyond the range of legislative power,
— beyond the courts, beyond Congress, beyond the
States, – thus giving them a scope, a legal security
and solidity, theoretically, at least, greater than they
have in the old country.
We have thus not only all the necessary safe-
guards of the essential rights and liberties of the
subject or citizen, but in the official records of
the realm, in the records of the courts and in
the reports of their judgments and opinions, we
have data that enable us to trace the history and
evolution of our law for the last six hundred years
with all needed fulness and precision.
English lawyers and judges being thus the chief
artificers of English law, I shall in the next two
lectures show you where and how, since the period
when they became so influential, they have been
educated, trained, and prepared for their office and
work.
Lecture
I.
Lecture
II.
Unique
character
of the Inns
of Court.
LECTURE II.
THE EDUCATION AND DISCIPLINE of THE ENGLISH BAR, AND
HEREIN OF THE INNs of CourT, THEIR HISTORY, CHAR-
ACTER AND PURPOSEs. ORIGIN, ANTIQUITY, AND ESTAB-
LISHMENT OF THE INNs of CourT (NotE A). STATUs of
SERJEANT-AT-LAW, CEREMONIALs ON TAKING THE COLF,
THE DIFFERENCE BETWEEN A SERJEANT AND A QUEEN’s
CounsEL, ETC., ETC. (NoTE B).
I POINTED out in my last lecture how largely
the laws and legal institutions of England had
been moulded and fashioned by the lawyers of Eng-
land. I am now to consider where and how they
have been educated and trained in the learning
and duties of their profession, and this will lead me
to present in outline one of the most ancient
and to me one of the most interesting objects of
curious and instructive study, - The Inns of Court,
their history, character, faculties, and purposes.
These institutions, so intimately associated with
English law and lawyers, like so much else con-
nected with the law of England, are absolutely
unique. We have in this country nothing which
in the least degree resembles them. The subject
abounds with materials from which to draw a pic-
ture rich in historic interest and replete with pro-
fessional instruction. But alas for my unpractised
O UR LA W ZAV ZTS OM. D HOME. 35
pencil' I must rely upon your taste, knowledge,
and reading, to fill in the sketch, which I can only
“crayon out” (to use Burke's phrase), and to sup-
ply the necessary shades and coloring.
The Inns of Court, and Westminster Hall where
the great courts were held for so many centuries
until their removal in 1882 into the new Royal
Courts of Justice building, are the visible well-
springs and fountains of English, and derivatively
of American, law. Neither the history of the Eng-
lish nation nor the special history of the English
law can ever fail to be of surpassing interest to the
statesmen, the legislators, the judges, the lawyers,
the students of law, and even the people, of this
country. In a general view the history of England
“during the last six centuries is the history of the
progress of a great people toward liberty; ’’’ and
Magna Charta and the Petition of Rights and Bill
of Rights are the basis of American, as well as of
English liberty. ſº
There are now, and for centuries have been, four
great coequal societies or Inns of Court: Lincoln's
Inn, Gray's Inn, the Inner Temple, and the Middle
Temple. With these there have been connected
until very recently about ten smaller Inns known
as Inns of Chancery, most of which were subordi-
nate to one or another of the Inns of Court. But
these Inns of Chancery have ceased to exist.”
1 Mackintosh, “History of England.”
* In a late publication, “The Inns of Court and Chancery,” by
Mr. W. J. Loftie (Macmillan & Co., 1893), it is said (p. 74): “There
are, as a fact, no Inns of Chancery. The Inns of Court, whose off-
spring they were held to be, have cut them adrift;” and they have
nearly all, he adds, sold their property.
Lecture
II.
The four
great Inns
36 A WS AAWD # CVRISPRUDEAVCE.
Lecture
II.
The name
“Inns of
Court,”
whence de-
rived.
What are the Inns of Court? They are thus
defined : “Inns of Court, colleges or corporate
“societies in London, to which all barristers and
“serjeants-at-law and all aspirants to these dignities
“must belong; also the buildings belonging to these
“societies in which the members of the Inns dine
“together, and barristers have their chambers. Inns
“of Chancery, colleges in which young students
“formerly began their law studies. They are now
“occupied chiefly by attorneys, solicitors, etc.”
This gives, as we shall see, a very general and
incomplete idea of the singular and composite char-
acter of the Inns, and is, moreover, inaccurate in
ascribing to them in a legal sense a corporate
character. We must make a closer study.
Even the name of these societies and of their
places of residence or habitation — Inns of Court—
does not to a modern ear, at least in this country,
accurately denote their character; it tends rather to
mis-describe them. Modern usage associates the
Saxon word “inne,” as well as the French word
“hôtel,” wholly with houses of public entertain-
ment. But at the time when the Inns of Court and of
Chancery were established, the Norman French was
, much in use, and in that language they were called
i “hostels,” — a word signifying, as thus used, not a
Y
;
; \
|
i
| !
public place of entertainment, but the private city or
town mansion of a person of rank or wealth, – as,
for example, the hostel of the Earl of Lincoln. The
word “inn” is the equivalent of the word “hostel; ”
and when the hostel of the Earl of Lincoln was let
to the lawyers and students of law, it naturally
1 Imperial Dictionary, 1883, “Inns of Court.”
OUR Z.A. W. WAV /TS O/LD AE/OME. 37
acquired the name of Lincoln's Inn. The name of
Gray's Inn and of most of the Inns of Chancery
had a like origin; and the houses, as well as Socie-
ties collectively, came to be called the Inns of Court
and the Inns of Chancery.
The phrase “Inns of Court,” therefore, signifies,
primarily, the four great and Honorable Societies of
Lincoln's Inn, Gray's Inn, The Inner Temple, and
The Middle Temple; and, secondarily, the houses
which these societies occupy and own."
1 The houses of the Inns of Court were anciently described by the old
French word “hostel,” meaning not a public place, such as is denoted
in our language by the modern word “hotel,” but the city mansion or
place of residence of a person of rank or wealth. The word contin-
ues to have this meaning in French usage. In the Latin law records
the Inns were called hospitia; while the name of diversoria was given
to public houses of entertainment or public inns. Pearce, “Inns of
Court,” chap. iii.; Herbert, “Antiquities of the Inns of Court and
Chancery,” 168. The Earl of Lincoln built his “hostel” in or about
the time of Edward II., and Gray’s Inn, Clifford’s Inn, and Furnival's
Inn were anciently the hostels or inns of noble families. Thavie's
Inn was called after John Thavie, or Tavie, of London, whose will
was proved in 1350, is extant among the records of Guildhall, and
is referred to by Coke in the Preface to the 10th volume of his Reports
(p. xxii). We are told that Coke regarded Thavie's will with so much
interest that he procured a transcript of it, which he was in the habit of
showing to his learned friends. In Thavie's will the testator directed
that “all of that hostel (hospicium) in which the apprentices of the
law were wont to dwell should be sold, and out of the produce a
proper chaplain found to pray for the souls of himself and his
wife.” “John Thavie's old hostel is thus shown,” says Serjeant
Pulling, in his “Order of the Coif * (pp. 132–136), “to have been
used by the apprentices of the law as an Inn of Court more than
five hundred years ago. The possession of the smaller hostels or
inns seems originally to have been acquired by the apprentices of the
law in somewhat the same way as Thavie's Inn, – viz., by hiring from
the actual owners, – this temporary possession being in after times
made permanent by lease or purchase. . . . The story of the greater
Inns — the Inns of Court as they came in time to be exclusively called
— does not essentially differ from that of the lesser Inns. The societies
Lecture
II.
What the
phrase
“Inns of
Court, ”
signifies.
38 LA WS AAWD jº/R/SPACUDENCE.
Lecture
II.
The Inns of Court (including under this general
name the late Inns of Chancery) are among the
of the Inns of Court, like those of the lesser Inns, came into possession
as tenants or lodgers, and at last they became sole proprietors.” The
history of the acquisition by the societies of the Inns of the freehold
or reversion of their valuable properties is given by Dugdale, FOSS,
Pearce, Pulling, and others. Places of public entertainment were, at
least as early as the fifteenth century, called common or public hos-
tels; the keepers of which in London in 1473 obtained an order to
change their name from “hostelers” to “innkeepers.” The word “inn "
— Saxon “inne’” — means a dwelling or abiding-place, and came in
popular use to mean “a large lodging-house, hotel, house of entertain-
ment” (Skeats’ Dictionary); “a house of entertainment for travel-
Iers” (Johnson's Dictionary). The English word “inn’’ was used as
the equivalent of the hostels or houses where the lawyers and students
dwelt or abode, and hence Johnson gives as a secondary definition of
the word “inn’’: “A house where students were boarded and taught ;
whence we still call the colleges of common law Inns of Court.”
What we call the Tabard Inn, of Southwark, -which, though destroyed
in the great fire of 1676, lives in the immortal pages of Chaucer's
“Canterbury Tales’’ (written not many years prior to A. D. 1400), as
the place from which the pilgrims started for the shrine of the holy
blissful martyr Thomas à Becket, — was described not by the Word
“inn,” but by the word “hostelry’’: — -
“Befel that, in that season on a day,
In Southwark at the Tabard as I lay
Ready to wenden on my pilgrimage
To Canterbury with devout coráge,
At night was come into that hostelry
Well nine and twenty in a company
Of sundry folk.”
“Dr. Johnson,” says Rendle, “has a choice little selection of quota-
tions from great writers on the subject of inns; the two sadder ones
touch me most: from Spenser, where the word is perhaps used in its
more extended sense : —
* “Palmer,” quoth he, “death is an equal doom
To good and bad, the common inn of rest ; ”’
from Dryden, who seems to paraphrase Spenser: —
“Like pilgrims to the appointed place we tend ;
The world's an inn, and death the journey's end.’”
“The Inns of Old Southwark,” by William Rendle, London, 1888,
chap. i., pp. 7, 8.
O OVAE Z.A. W. ZAV / 7.S. O/C/D AſOMA2. 39
most remarkable antiquities of London. The mists
of a remote period hang densely about their founda-
tion. The legal antiquary cannot fix upon the exact
time of the origin of these Inns, but it can be nearly
approximated." They carry the mind back to the
depths of the Middle Ages. They antedate the dis-
covery and settlement of America. They existed
long before Columbus lifted the veil from the New
World. They touch upon the borders of Magna
Charta and the Crusades. King John lodged at the
new Temple previously to signing Magna Charta,
and pending the negotiations with his barons, which,
in 1215, had their glorious issue at Runnymede. A
distinguished American lawyer and judge, – the
Hon. Jeremiah Black, - who visited Europe for the
first time in 1880, declared that he did so to see two
things, – the Inns of Court, and Running-Mede.
The Temple society of lawyers afterward inherited
the name, and what was more important to it suc-
ceeded to the property, of the Knights Templars,
which the society still owns.
In the quaint and curious edifices known as the
Inns of Court, the lawyers and judges of England,
the artificers and builders of English law, have
been trained and educated for centuries. Changes,
1 “It is natural that the mist which veils any system built up in
remote periods should hang most densely about its foundations; and
an attempt to ascertain exactly the time from which each of the Inns
of Court has been established as a seat of legal education has little
prospect of success.” — Smith, “History of Education for the English
Bar,” p. 2.
“The original institution of the Inns of Court nowhere precisely
appears. . . . They are voluntary societies which have for ages sub-
mitted to government analogous to that of the seminaries of learning.”
— Lord Mansfield in Rex v. Gray’s Inn, 1 Douglas, 353.
Lecture
II.
Origin and
antiquity
of the
Inns.
4O AA WS AAWD 90/º/SPA’UDAEAVCE.
Tuecture
II.
Character
of the edi-
fices and
their his-
torical
interest
and asso-
ciations.
replacements, and additions have from time to time
been made in the buildings; and the present struc-
tures, as a whole, excepting of course the Temple
Church, and the old halls, notwithstanding the
admiration with which they are regarded by their
members, offer externally to the eye no imposing
presence, and no striking architectural beauty;
Quite the reverse. The interest is historical and
intellectual. The chambers are in sober fact mostly
dismal and dingy; but they are associated with the
lives and names of the great sages in the law who
have conferred glory and renown upon the legal .
profession and advanced English law to its present
height and proportions."
* In “Pendennis,” chapter xxix., - “The Knights of the Temple,”
— Thackeray gives a graphic account of some of the features of the
Social life at the Inns, and takes off, in his quiet way, the pride with
which they are regarded by the members. The following extracts
may interest the reader: “A well-ordained workhouse or prison is
much better provided with the appliances of health, comfort, and clean-
liness, than a Foundation School, a venerable College, or a learned Inn.
In the latter place of residence men are contented to sleep in dingy
closets, and to pay for the sitting-room and the cupboard, which is their
dormitory, the price of a good villa and garden in the suburbs, or of
a roomy house in the neglected squares of the town. . . . Neverthe-
less, those venerable Inns, which have the Lamb and Flag and the
Winged Horse for their ensigns, have attractions for persons who
inhabit them, and a share of rough comforts and freedom, which men
always remember with pleasure. I don’t know whether the student
of law permits himself the refreshment of enthusiasm, or indulges in
poetical reminiscences as he passes by historical chambers, and says,
‘Yonder Eldon lived — upon this site Coke mused upon Lyttleton —
here Chitty toiled — here Barnwell and Alderson joined in their
famous labors — here Byles composed his great work upon Bills, and
Smith compiled his immortal “Leading Cases " — here Gustavus still
toils, with Solomon to aid him : * but the man of letters can’t but love
the place which has been inhabited by so many of his brethren, or
peopled by their creations as real to us at this day as the authors
OUR LA VV ZAV /7'S O/L/O HOA/A2. 4 I
More than six centuries have elapsed since the
Inns of Court were founded, and the original West-
minster Hall was at that time more than a century
old. What thoughtful lawyer or law student can
survey them with indifference? Dr. Johnson, in
a familiar and noted passage respecting famous
places, declares “that to abstract the mind from all
“local emotion would be impossible, if it were en-
“deavored, and would be foolish, if it were possible.
“Whatever withdraws us from the power of our
“senses, – whatever makes the past, the distant, or
“ the future, predominate over the present, advances
“us in the dignity of thinking beings. Far from
“me, and from my friends, be such frigid philoso-
“ phy as may conduct us, unmoved, over any ground
“which has been dignified by wisdom, bravery, or
“virtue. That man is little to be envied whose
“patriotism would not gain force upon the plain of
“Marathon, or whose piety would not grow warmer
“among the ruins of Iona.” As little to be envied
whose children they were ; and Sir Roger de Coverley walking in the
Temple Garden, and discoursing with Mr. Spectator about the beauties
in hoops and patches who are sauntering over the grass, is just as
lively a figure to me as old Samuel Johnson rolling through the fog
with the Scotch gentleman at his heels, on their way to Dr. Goldsmith's
chambers in Brick Court, — or Harry Fielding, with inked ruffles, and
a wet towel round his head, dashing off articles at midnight for the
‘Covent Garden Journal, while the printer's boy is asleep in the
passage.”
* “Journey to the Western Isles: Inch Kenneth.” Speaking of
this extract, Boswell (Life of Dr. Johnson) says: “Had our tour (to
the Hebrides) produced nothing but this sublime passage, the world
must have acknowledged that it was not made in vain. Sir Joseph
Banks told me he was so much struck on reading it, that he clasped
his hands together and remained for some time in an attitude of silent
admiration.”
Lecture
II.
Dr. John-
son's
passage
concerning
famous
places.
42 A WS AAWD # URISPRUDEAVCE.
Lecture
II
Effect of
clause in
Magna
Charta
concerning
the Court
of Com-
mon Pleas.
is the lawyer who can contemplate without emotion
these venerable Inns and this illustrious Hall.
The Inns of Court were originally provided for
the use of lawyers and students of law, and they
have maintained that character to the present time.
By a clause in Magna Charta, June 15, A. D. 1215,
it was, to redress the grievance of compelling suitors
to attend the sovereign wherever he might chance
to be, ordained that the Court of “Common Pleas
“should not thenceforth follow the Court [the
“King], but be held in some certain place.” This
certain place was established in Westminster Hall,
which distinctively became, and has remained. until
recently, the principal seat of the great judicial
courts.” The fixed location of this court, called by
* The authorities clearly establish that the Court of Common
Pleas existed from time immemorial, and was not created by the
clause in Magna Charta which required this court to be held in some
certain place. Serjeant Pulling in his “Order of the Coif,” after
referring to the authorities (chap. iii., p. 89 et seq.), says that they
“quite refute the idea of those who speak of the Court of Common
Pleas as created in the time of Edward I., or originating in the clause
of Magna Charta, which provided for its sittings being in aliquo certo
loco. The words of this clause in Magna Charta have evidently led
to a variety of mistakes with reference to the Common Pleas. The
evil which was designed to be dealt with by the clause in question
was the continual change in the place of sitting of the courts. Inci-
dentally no doubt it had the effect in time of bringing about the
establishment at Westminster Hall of not only the Court of Common
Pleas, but the other courts which grew out of the old Aula Regia, but
it is free from dispute that for ages after Magna Charta, as well
the Common Pleas, as the King's Bench and Exchequer, were held in
a variety of places and were certainly not de facto aut nomine what in
modern times they became, ‘His Majesty's Courts at Westminster.’
They were each of them in their turn held at Winchester, Gloucester,
Windsor, Lincoln, or York, as much as at Westminster, and neither of
the places named could therefore exclusively be called the certus locus
in which the courts were obliged to be held.”
OCWA’ Z.A. W. ZAV /TS O/L/D ATO//Z. 43
Sir Edward Coke “the lock and key of the common
law,” had another important consequence. It drew
as with a magnet the lawyers together from all parts
of the kingdom, and formed them into one body, -
who to the great advantage of the law henceforth
gave themselves wholly to its study and practice."
There is, however, another interesting consideration
which I must not omit to mention. According to
the weighty opinion of Sir William Blackstone,” this
clause in Magna Charta concerning the Common
Pleas had a most influential, if not decisive, effect
at a critical time on the fortunes of the common
law in its struggle to prevent the intrusion of the
civil law into England. This clause localized the
great courts, and such localization concentrated
the common lawyers who were dispersed through-
out the kingdom, and formed them into an organized
body for the study of the “law of the land” as distin-
guished from the civil law, which alone was taught
at Oxford and Cambridge; and for the accommoda-
tion of “the professors of the municipal law,” as
the lawyers were called, they acquired the proper.
ties which afterwards received the name of “the
Inns of Court and of Chancery.” These became
collegiate houses or seminaries where the common
law was taught and degrees therein conferred, as
I shall hereafter describe. And thus the Inns of
Court, their history, powers, purposes, and associa-
tions, have a profound interest to all who like
myself rejoice that the common law as a compet-
* 1 Blacks. Com., 23. Pulling, “The Order of the Coif,” London,
1884, chap. iii., p. 89 et seq.
* 1 Blº...S. Com., 23–25.
Tuecture
II,
Localiza-
tion of the
courts and
concentra-
tion of the
lawyers.

44 AA WS AAWD 30A/SPRUDENCE.
Lecture
II
When the
societies
assumed
their mod-
ern form
and mode
of govern-
ment.
The sites
of the
Inns.
-->
ing system with the civil law retained its mastery
in England. - -
I have said above that the exact date of the origin
of the several Inns of Court cannot be determined.
It seems to me probable from the researches which
have been made that houses for the reception of
students of the law were established soon after
Magna Charta. The attendance gradually increased,
and by the time of Edward III, 1327, the original
of what we now know as the Inns of Court existed,
although we are not advised as to their constitu-
tion, mode of government, or the nature of the
distinction, if it then existed, between the Inns of
Court and the Inns of Chancery. The records of
Lincoln's Inn go back only to 1423, those of the
Temple and of Gray's Inn not quite so far. Foss's
opinion is that the Inns did not assume their modern
form of societies “bound by established rules, gov-
“erned by a controlling body, and empowered to
“confer legal degrees,” until about the beginning
of the sixteenth century; and that in the reign of
Henry VIII, they were fully established upon the
system which in form and substance prevails at
the present time."
The Inns, with their adjacent gardens, are in
our day in the very heart of London. All is quiet
1 The curious student or inquirer will find in Note A, at the end of
this lecture, some of the results of the researches of learned anti-
quaries and writers on the subject of the origin, antiquity, and estab-
lishment of the Inns briefly summarized, and the sources of more
detailed information pointed out. As to the origin (which is some.
what obscure) of the faculty of the Inns to confer the rank of
barrister-at-law, see Goldsmith’s “English Bar; Or Guide to the Inns &
of Court " (London, 1843), p. 84, wherein is given the substance qf.
the Sixth Report of the Common Law Commissioners coºpnirig it.


OUR Z.A. W. ZAZ / 7 S OZZD HOME. 45
within the Close, but the swelling tide of life and
business flows tumultuously along the adjacent
Strand and on the bordering Thames. But when
the sites of the Inns were chosen they were in the
suburbs, between the place where the King's Courts
were held at Westminster and the city of London,
thus enabling the members conveniently to attend
the one and draw their supplies of provisions from
the other."
The Inner and Middle Temple were located on
the Thames, and near three hundred years ago were
alluded to by Spenser in the “Prothalamion,” pub-
lished in 1596, as
“Those bricky towers
The which on Themmes brode aged back doe ride,
Where now the studious lawyers have their bowers;
There whilom wont the Templar Knights to bide,
Till they decayed through pride.”
Lincoln's Inn in the same neighborhood is also
finely situated, and the gardens of the Temple and
* 1 Blacks. Com., 23. Sir John Fortescue (“De Laudibus Legum
Angliae"), more than four hundred years ago, thus sets forth the rea-
Sons for the location of the Inns. The sites of the Inns were chosen
not “within the city, where the confluence of people might disturb the
quietness of the students, but somewhat several in the suburbs of the
same city, and nigher to the King's Courts, that the students may
dayly at their pleasure have access and recourse thereto without
weariness.” “For this place of study is situate nie to the King's
Court, where the same laws are pleaded and argued, and judgments
on the same given by judges, men of gravity, ancient in years, perfect
and graduate in the same laws: wherefore every day in court the
students in those laws resort by great numbers into those Courts,
Wherein the same laws are read and taught as it were in common
schools.” (Chap. xlviii.) See note A at the end of the present lec-
ture. The river Fleet, — whence the name of the celebrated street
and prison, — flowing past the foot of Holborn Hill, separated the
Inns of Court from the city.
Lecture
II.
Why
chosen.
46 LA WS AAWD 3'URISPRUDENCE.
Lºre of Gray's and Lincoln's Inn, and the ground known
— as Lincoln's Inn Fields, are among the most attrac-
tive portions of the great metropolis. Lord Bacon
Lord belonged to Gray's Inn. In it he had his home for
Bacon and gº º e º &
tºº many years. He is its chiefest glory. His many
Inn. faults and weaknesses have not obscured his origi-
nal brightness. Shakespeare, Bacon, Milton, Burke,
— in this order Choate ranked the four greatest
Englishmen." If regarding Bacon in the aspect of
his varied and wonderful powers and achievements
in science, philosophy, literature, and law, in each
of which he was pre-eminent, we assign to him the
intellectual primacy, it would be easier to deny his
title than to disprove it. May we not fitly pause
for a moment and contemplate this extraordinary
man in connection with the Inn he loved so well?
Here he lived in his unworthy struggle for power,
and here he retreated when he had been precipitated
from it. His Essays, the most delightful and best
known of all his writings, are dated from his
“Chamber in Graie's Inn.” From his lodgings
in this Inn, attended by the officers of the Chan-
1 Rufus Choate’s letter to Charles Sumner. Brown’s “Life of
Choate ” (Little, Brown, & Co.), p. 112.
* It is generally thought that the gardens of Gray’s Inn were laid
out in or about 1597 by Lord Bacon, who was at that time the treas-
urer of the Inn. Lamb (Essay “On Some of the Old Actors”) in his
description of the gardens of Gray’s Inn, after entering his protest
against the marring of their beauty by the ugly, “accursed Verulam
buildings,” thus gives his judgment upon them, and recalls Bacon's
relation to them : “They are still,” he says, “the best gardens of
any of the Inns of Court, — my beloved Temple not forgotten, –
have the gravest character; their aspect being altogether reverend
and law-breathing. Bacon has left the impress of his foot upon their
gravel walks.” What Lamb thought of the Temple gardens he tells
us in the Essay on the “Old Benchers”: “Indeed, it is the most
OUR LA W IN ITS O/L.D HOME. 47
cery, the students of law, the judges and the
nobility of England, he rode in state, clothed in
purple satin, on May the 7th, 1617, to be installed
in Westminster Hall as Lord Keeper of the Great
Seal. He had at length attained the summit of
human greatness; but his fall came speedily and
justly. -
As the price of regaining, after his disgrace, the
coveted liberty to live in London, Bacon had been
compelled by Buckingham to part with York House,
in which he was born, and in which he wished to die.
“Solitary and comfortless,” without children or the
companionship of wife, he again sought, with the
weight of years and cares and the greater weight
of debts and public disgrace pressing upon him,
a home in his old Inn. Here he imagined his
strength to revive, and here he gave himself with
undistracted devotion to the “studies, arts, and sci-
ences to which,” as he truly declared at his installa-
tion as Lord Keeper, “in my own nature I am most
induced.” Like so many others, when they have
realized the vanity of worldly fame, or felt the in-
gratitude or injustice or even the deserved displeas-
elegant spot in the metropolis.” Pepys has these two characteristic
touches in his diary: —
“4th May, 1662. When church was done my wife and I walked to
Gray's Inn to observe the fashions of the ladies, because of my wife's
making some clothes.”
“ 17th August, 1662. I was very well pleased with the sight of a
fine lady that I have often seen in Gray's Inn Gardens.”
The earlier extract shows that woman’s love of the becoming and
beautiful in dress, and the later that man’s admiration of loveliness
in woman, have undergone no change in the two and more centuries
which have since gone by, nor are they likely to undergo any in the
future, whatever may be the changed civil, legal, and political rights
of women.
Lecture
II.
Bacon’s
disgrace.
48 ZA WS AAWD 70A/SPAUDENCE.
Lecture
I
His pa-
thetic
death.
His life
in Gray's
Inn.
ure of their fellow-men, he found solace in books
and studious contemplation and intellectual employ-
ment. His death was pathetic. He was destined
to become a martyr to his love of science. In
experimenting upon the effect of cold in arresting
putrefaction he caught a fatal illness, but he demon-
strated the possibility of the great industry of our
day of preserving meats in ice, and their transpor-
tation across continents and oceans in refrigerator
cars and ships. His accidental illness thus con-
tracted was so severe as to prevent his reaching his
beloved Inn, and dying within its walls.
In his earlier life he so enjoyed the quiet of the
gardens of the Inn and the prospect it afforded that
he built therein a summer house for study and reflec-
tion. The records of the Society show that the sum
of £715s. 4d. at one time and £60 6s. 8d. at another,
laid out for planting elm-trees in these gardens,
were allowed to Mr. Bacon. A catalpa-tree which
Bacon planted in the gardens of the Inn he loved so
well grew with his rise and lofty advancement, sur-
vived his inglorious fall, and while, it is said, it
lives to interest the beholder," yet such is the inde-
structible nature of the works of genius that his
1 Bacon “is said to have designed the gardens of Gray's Inn, and
to have planted the old catalpa tree still standing there in 1885.”
Hutton’s “Literary Landmarks of London,” article “Bacon.” Tra-
dition says that a catalpa-tree was planted by Bacon, and Douthwaite
adds: “It is one of the oldest in England, and may well have been
brought from its native land by Raleigh.” Douthwaite, “Gray's Inn :
Its History and Associations,” p. 185. It was pointed out to me in
1889. As to the relations of Bacon and Gray's Inn, Douthwaite, ubi
supra, p. 207. “Bacon’s chambers in Gray’s Inn were in the build-
ing now known as No. 1 Gray's Inn Square.” Ib., p. 209. Post
Lecture III., Note A.
OUR / A VV ZAV / 7TS O LD HO//Z. 49
fame, which he confidently committed to an indul-
gent posterity, will for ages outlive the trees he
planted and watered and enjoyed." The works of
our hands are perishable; only the creations of the
intellect have the heritage of immortality.” Bacon
died leaving an assured though tarnished fame; but
Lord William Russell, who was beheaded on Lin-
coln's Inn Fields, a martyr to the eternal cause
of human liberty, left to the world for all coming
time the legacy of a spotless life, and the unfading
record of a high and heroic example.”
We possess on many points but little satisfactory
and definite information of the Inns of Court and
Chancery until the time of Henry VI. (A. D. 1422–
1461). Sir John Fortescue was his nominal Chan-
cellor, and in his “Panegyric on the Laws of
England ” we have a sketch of the Inns as they
* The solemn and touching words of Lord Bacon's will, in which
he expresses his reliance upon the justice of future times, are: “For
my name and memory I leave it to men's charitable speeches, to
foreign nations, and the next ages.”
* “The beings of the mind are not of clay;
Essentially immortal, they create
And multiply in us a brighter ray
And more beloved existence. . . .
Shylock and the Moor,
And Pierre, cannot be swept or worn away—
The keystones of the arch I though all were o'er,
For us repeopled were the solitary shore.”
Byron, “Childe Harold,” canto iv. verse iv.
* “The scaffold was erected in Lincoln Inn Fields, a place
distant from the Tower; and it was probably intended by conduct-
ing Russell through so many streets to show the mutinous city
their beloved leader, once the object of all their confidence, now
exposed to the utmost rigors of the law.”— Hume, “History of
England,” chap. lxix.
4.
Lecture
II.
Bacon's
tarnished
but endur-
ing fame.
Fortes-
cue's
sketch of
the Inns
of Court.
5O ZA WS AAWD j^{WR/SAA’&WDZAVCAE.
Lecture
II.
They con-
stitute a
legal uni-
versity.
then existed." This was over four hundred years
ago. He describes them as composed of four large
Inns having about two hundred students each, and
ten lesser Inns called Inns of Chancery, having
about one hundred students each, about eighteen
hundred in all, and situate in the suburbs of the
city. The students were chiefly young men of
birth, many of them being attended with servants;
and although he mentions that it was costly to live
at the Inns, he does not give the order or course of
instruction or study.” More than a century later, in
the reign of Queen Elizabeth (A. D. 1558–1603),
Lord Coke” gives a full account of the Inns of Court
at that time, — their names, constitution, readings,
moots, etc., - and he describes the Inner Temple,
Gray's Inn, Lincoln's Inn, and the Middle Temple,
as the “foure famous and renowned Colleges or
houses of Court.” “All these,” with the Serjeants'
Inn and the Inns of Chancery, are, he adds, “not
“farre distant one from another, and altogether doe
“make the most famous Universitie for profession of
“law onely, or of any one humane science, that is in
“the world, and advanceth itself above all others.
“In which houses of Court and Chancery the read-
“ings and other exercises of the lawes therein con-
1 “De Laudibus Legum Angliae,” written between 1461 and 1470.
Sir Walter Raleigh calls Fortescue that Notable Bulwark of our
Laws, – “History of the World,” Part I., Book II., chap. iv., § 16.
* In 1470 the “Paston Letters ” (vol. i., p. 41) speak of “your col-
lege the Inner Temple,” and also subsequently of the Middle Temple.
Margaret Paston sent her husband in term time supplies of provisions
from the country, as, for example, “xjxx rabets by the berer hereof.”
“Paston Letters,” vol. ii., p. 21.
* Preface to the third part of the Reports.
OOA’ ZA W /ZW / 7.S. OLD AſO/l/A2. 5 I
“tinually used are most excellent, and behooveful for
“attaining to the knowledge of these lawes.”
1 In 1586 in the various Inns of Court and Chancery the number
of students in term was 1,703, and out of term was 642, as appears
from a MS. in Lord Burghley's collection. Pearce, “Inns of Court,”
p. 79.
Stow in his “Survey of London " (1598) enumerates as then exist-
ing the several societies, fourteen in number, corresponding nearly
with those recognized at the present day, of which four are the Inns
of Court, properly so called, - Encyclopædia Britannica, 9th ed., “Inns
of Court.”
In the grant of James I. to “the Inner and Middle Temple" these
are described as “being two of those four colleges the most famous
of all Europe ’’ for the study of the law. -
Edward Wynne, the author of “Eunomus,” which originally ap-
peared in 1767, gives (Dialogue II.) an interesting account of the Inns
of Court in his time. Space does not permit it to be here set out
at length. I can only subjoin an epitome of it with a few extracts.
He points out that the common or municipal law was not taught in
the two great Universities, but was taught in London by learned men
of the law who set up schools for that purpose: —
“It seems to me not improbable that the abolition of the Law
Schools by the prohibition that issued 19 Henry III, might in part
give occasion to a more regular course of instruction, and fix the
places of residence that we enjoy at this very day.” See Note A
at the end of this lecture.
“Those writers who have called the Inns of Court and of Chancery
by the name of an University do by no means degrade the term in its
more genuine and strict acceptation.” He runs a parallel between
them and the Universities, and points out that the number of the Inns
is not much less than the number of the colleges. In each instruc-
tion is given and degrees are taken. The internal government of the
Inns in its nature and institution is, he maintains, as perfect as in
colleges. But there is no instance, at least in print, until 1762, “ of
a voluntary concurrence of all of the Inns of Court to establish one
common set of regulations [in respect of legal education], which regu-
lations, well considered, reflect great honor on the present establish-
ment,” – “Eunomus,” vol. ii., Dialogue II. (2d ed., 1774), pp. 232–255.
“Lord Coke,” he says, “in his preface to the third Report, reckons
fourteen Inns of Court and Chancery, comprehending the two houses
of Serjeants' Inn, all of which, except Serjeants' Inn on Fleet Street,
are more or less dedicated to the law at this day” (1774), — “Eunomus,”
2d ed., vol. iv., notes, p. 95.
Lecture
II.
52 ZA WS AAWD 70RISPRUDENCE.
f
Lecture | I cannot in this sketch enter minutely upon the
details of the student’s life. He had his chambers
i
or residence in the Inn. The mode of instruction
was principally readings and mootings. Minute
regulations as to dress and discipline were or-
dained, and attendance on religious services was
made compulsory.
#. And here I may observe that the legal profession
º' in England has for centuries been divided into two
i..." distinct branches: (1) Barristers or counsel who con-
stitute the higher or upper class of lawyers, and who
alone have the right to appear in the Superior
Courts, and who become such by being “called ”
by one of the four Inns of Court; (2) Attorneys
(officers of the common law courts) and solicitors
(officers of the courts of chancery). None of this
lower branch has any right to practise in the courts,
but they instruct the barrister or counsel in respect
of matters in litigation therein. In 1845 and 1875
was chartered “The Incorporated Law Society,”
composed of attorneys, solicitors, proctors, and
others, not being barristers practising in the courts of
law and equity in the United Kingdom. This great,
and, we may truly call it, Honorable Society has
succeeded in securing legislation (6 & 7 Vict. c. 73,
23 & 24 Vict. c. 127) under which preliminary, in-
termediate, and final compulsory examinations are
required on the part of all persons seeking to
become attorneys or solicitors. Without further
observations touching the division of the profession
in England, I now resume my sketch of the Inns of
Court.
ovº LAW IV /7's OLD HOME. 53
x--—
There are three ranks or degrees among the
members of the Inns of Court: (1) Benchers, or
the governing body; (2) barristers, that is, per-
sons actually called to the bar; (3) students, that
is, members keeping their terms at the Inns with a
view to being called to the bar.
The degrees of legal precedence among the mem-
bers of the bar are these : (1) The highest in rank
are the Queen's counsel, the words of appointment
in the patent being “one of our council learned in
the law.” These cannot be retained or employed
in causes in which the Crown is concerned unless
specially permitted. They “lead” in cases, and
receive double the fees of an ordinary barrister.
They give opinions on cases or questions submitted
to them. They do not accept conveyancing or
pleading, or admit pupils to their chambers. Sen-
iority determines precedence. They cannot main-
tain an action for fees, or act in a case except
through an attorney. They rank serjeants, unless
the serjeant has a patent of precedence. (2) The
degree of serjeant-at-law, the most ancient and for-
merly the highest rank at the bar. He is required
by the King's writ to take the office, the admis-
sion to which was formerly attended with expen-
sive ceremonies, of which only one remains, –
that of presenting gold rings with mottoes to the
1 “They are self-elected. They vary in number from twenty in
Gray's Inn to seventy and upwards in Lincoln's Inn and the Inner
Temple. The meetings of the benchers are variously denominated
a ‘parliament’ in the Inner and Middle Temple, a ‘pension’ in Gray's
Inn, and a ‘council’ in Lincoln's Inn.” — Encyclopædia Britannica,
9th ed., “Inns of Court.” -
Lecture
II.
Ranks
among the
members
of the
Inns.
Queen's
counsel.
Serjeants-
at-law.
54 ZA WS AAWD jº/R/SPAEUDEAVCE.
Lecture
II.
Sovereign, the Lord Chancellor, the judges, and
others." - " ---
1 In Modern Rep., 9, the following curious circumstance relating
to the rings given by Serjeants on their call is recorded: “Seventeen
serjeants being made, November 4th (21 Car. II.), Serjeant Powis, one
of the new-made serjeants, coming a day or two after to the King's
Bench bar, Chief-Justice Keeling told him he had something to say
to him, viz.: that the rings which he and the rest of his brethren had
given weighed but 18s. apiece; whereas Fortescue says (“De Laudi-
bus ”) that the rings given to the Chief-Justices and Chief Baron
ought to weigh 20s. apiece, and that he spoke not this expecting a
recompense, but that it might not be drawn into a precedent, and
that the young gentlemen there might take notice of it.”
Fortescue (“De Laudibus,” chap. 1.) says, “every serjeant shall make
presents of gold rings to the value in the whole of £40 (at least) Eng-
lish money. I well remember when I took upon me the state and
degree of a serjeant-at-law that my bill for gold rings came to £50.”
Mr. Waterhouse in his edition of “De Laudibus” (London, A. D. 1663),
commenting on the above, says the rings were “old-fashioned gold
rings with inscriptions. Forty pounds sterling is near as much as two
hundred pounds now.” The cost of the rings was but a small portion
of the expense, and hence, anciently, only those were created Serjeants
“who have sufficient learning in the laws and an estate to support the
dignity and equipage of it.” Mr. Serjeant Robinson's account of the
rings bestowed by him on his creation as a Serjeant is given in
Note B at the end of this lecture. Mr. Serjeant Sleigh, of whom I
have elsewhere made mention, related to me, when he was on a visit
to the United States, the following incident. Mr. Sleigh, in 1868,
being in the goldsmith's shop in London to order rings on his own
call to the order of the coif, a lady alighted from her carriage, came
in, and wished to see the proprietor. Mr. Sleigh politely stepped
aside, and thereupon the lady threw down a box containing many
rings, offering them for sale, saying: “We have no use for them, you
know; they were given to my dear papa when he was Lord Chancel-
lor.” In the biography of her dear papa I find the following entry in his
diary at the time he was created Chief-Justice of the Queen's Bench.
“October 15 [1849]. Have been trying to find a motto for my rings
when I am called serjeant. Nothing better turns up than ‘Justitia
tenar (Juv. Sat., viii. 25). I shall be the first peer ever made a
serjeant, as hitherto all peers who have worn the coif had put it on
before they were ennobled; but I suppose there is no objection to
the order being reversed “ (“Life of John, Lord Campbell,” by his
daughter, the Hon. Mrs. Hardcastle (Am. Ed.), vol. ii., chap. xxix.,
O&WA’ Z.A. W. WZV ZZTS O/C/D AſO//A2. 55
wº-
The order of the serjeants-at-law can be traced
historically for eight hundred years. It is intimately
associated for this long period with the growth of
the English law. It is older than the oldest peerage.
It is older than the earliest Westminster Hall, - the
one built by William Rufus. Chaucer describes the
“wary and wise serjeant of the law that had often
been seen at the Parvis of old St. Paul's,” and the
order was then very ancient." The serjeants for ages
constituted the entire profession. Selden shows that
for seven hundred years the coif has been their dis-
tinctive mark. For more than six hundred years,
and until the Judicature Acts of 1875, the judges
had always been serjeants-at-law, - no small secu-
rity for fit appointments.” But by several acts of
p. 331). What became of the rings presented by her dear papa, – who
knows? Her dear papa relates that “Erskine's full-bottom wig was
purchased and exported to the coast of Guinea, when he ceased fo
be Lord Chancellor, for the purpose of making an African warrior
look more formidable to his enemies in the field of battle,” and he
wished, or affected to wish, that his own uncomfortable wig had been
exclusively reserved for the like use. Ib. p. 346.
1 “A Serjeant of the law, ware and wise,
That often hadde ben at the parvis,
Ther was also, full rich of excellence.
Discreet he was and of great reverence,
He semed swiche; his words were so wise,
Justice he was ful often in assise,
By patent, and by pleine commissiun,
For his science, and for his high renoun,
Of fees and robes had he many on.”
Chaucer, “Canterbury Tales.” See Pulling, “The Order of the
Coif,” p. 3.
* Pulling, “The Order of the Coif,” 3, 5, 23, 38, 274. Serjeant
Robinson’s “Bench and Bar,” chaps. xxii., xxiii. His account of the
ceremonials on taking the coif, of the status of the serjeant-at-law, and
of the difference between a serjeant and a Queen’s counsel, as well as
other points of interest, is given in Note B at the end of this lecture.
Lecture
II.
Antiquity
and decay
of the
order.
56 A WS AAWD jº/A2/SPA’UDAEAVCAE.
Tuecture
II.
Its ap-
proaching
extinction.
Parliament in recent times the ancient rights and
exclusive privileges of the order have been much
impaired, and by the prolific creations of Queen's
counsel the value of the degree or estate of the
serjeant much diminished; and finally by the Judi-
cature Acts (36 & 37 Vict. c. 66, § 88) it was enacted
that “No person appointed a judge of either of the
“ said courts shall henceforth be required to take
“or to have taken the degree of serjeant-at-law.”
This does not, it will be observed, abolish the order.
The Crown may still create new serjeants; but this
enactment, in connection with the previous un-
friendly legislation, the large number of Queen's
counsel, and the spirit of the age which is against
exclusiveness of privileges, has practically doomed
the order to destruction.
I had the pleasure of a personal acquaintance
with Mr. Serjeant Sleigh, the one who had then
the most recently taken the coif, and who, alluding
to the approaching end of the order, pleasantly said
to me on one occasion: “Bellold the last serjeant
or, as you would say, ‘I am the last of the Mohi-
cans.’” It is now understood that no new ser-
jeants will be called; and with the death of the last
of the present survivors — now very few in num-
ber — this ancient and venerable order will cease
to exist. Although I cannot but think the order,
if its distinctive privileges were to be maintained,
has outlived its usefulness, and although as an
American lawyer my interest in it may be said to
1 Mr. Serjeant Sleigh assumed the coif in 1868. There were, how-
ever, several expectant judges created serjeants after Mr. Serjeant
Sleigh's creation. Robinson, p. 299.
OOA’ CA VV ZAV ZZTS O/LD HO/A2. 57
be wholly one of sentiment, I cannot refrain from
saying that I witness its certain doom with the
same feeling of sadness and regret which Words-
worth so tenderly expressed concerning the decay
and final extinction of the Venetian republic after
her glorious history of a thousand years : —
“Men are we, and must grieve when even the Shade
Of that which once was great has passed away.”
I conclude this brief reference to this venerable
order by remarking that serjeants-at-law are not
wholly unknown in the history of the profession in
this country. In the Province of New Jersey, at
the May term, 1755, the Supreme Court appointed
serjeants. In 1763 it was ordered “that no person
“for the future shall practice as a serjeant in this
“court but those that are recommended by the judges
“to the Governor for the time being, and duly called
“up by writ, and sworn agreeably to the practice in
“England.” At the May term, 1764, this order was
vacated, and the former practice for “the court only
“to nominate and appoint such persons as the court
“thought fit and proper for that service by rule of
“court without writ” was restored. The number
of serjeants was subsequently fixed at twelve. Ser-
jeants were necessary to pass a common recovery.
They alone conducted examinations for admission
to the bar. Only as late as 1839 was the degree of
serjeant-at-law formally abolished in New Jersey."
* The above is taken from the “History of the Supreme Court of
New Jersey,” by Mr. Francis Bazley Lee, in vol. i., series ii., of “The
Supreme Courts of the States and Provinces,” 1892, p. 66. Such facts
as the above are interesting, moreover, as showing how closely our
laws and practice were modelled after the English original. Indeed,
Lecture
II.
Serjeants-
at-law in
this coun-
try.
58 LA WS AAWD 9'0E/SPA’UDEAVCE.
Lecture
II.
The ordi-
nary bar-
rister-at-
law.
(3) The lowest degree in the ranks of barristers is
the ordinary barrister-at-law or counsellor."
The subject will be resumed in the next lecture.
Mr. Lee's article shows his statement to be correct that “the Supreme
Court of New Jersey remains to-day in organization much as it was
nearly two centuries ago.” Ib., p. 58.
1 Sometimes called “utter barristers.” “There is also the prac-
titioner ‘below the bar,’ the lowest in the ranks of the forensic
hierarchy, who limits his practice to those special branches of the
law designated pleading and conveyancing, and is precluded by the
fact of his not having been ‘ called ' from appearing in court,” —
Encyclopædia Britannica (9th ed.), “Inns of Court.”
O OVA2 WA. W. ZAV / 7.S. O/L/D AſO///E. 59
NOTE A.
or IGIN, ANTIQUITY, AND ESTABLISHMENT OF THE
INNS OF COURT.
Much has been written concerning the origin, antiquity, and
establishment of the Inns of Court and the several Inns of
Chancery. Foss in his elaborate work, “Judges of England,”
has examined the subject with laborious care and seeming impar-
tiality. His conclusions seem, in general, to be well warranted
by the researches he has made and the facts and records to
which he refers. It is the purpose of this note merely to state
concisely, by way of supplement to the text, the general results
reached by him and the other writers to whom reference is
made.
Henry III. prohibited the continuance of schools of law
within the city of London in 1235. This mandate did not
include the establishments outside of the city, and of course
did not apply to those establishments probably then exist-
ing in the suburbs outside of the walls of the city for the
reception of students of law, and which afterwards developed
into and became the Inns of Court as we now know them. The
purpose of this prohibitory order of Henry III. has been much
disputed. By some it is supposed that the schools of law were
suppressed within the city to encourage the establishments in
the suburbs of the city for teaching the common law. Such
is Blackstone's opinion (1 Com. Introd. 24). Foss is of a
contrary opinion (vol. ii., p. 201), and so also is Lord Coke
(2 Inst. proem). Mr. Philip Anstie Smith in his “History of
Education for the English Bar” (London, 1860) discusses the
subject, and doubts whether at this time “any legal univer-
sity existed " (p. 4). Pearce, “Inns of Court,” chap. i., p. 18
(“Early Schools of Law "), gives the Latin text of the prohibi-
tion, and the opinions of Coke, Selden, and Blackstone as to
its purpose.
Note
Henry the
Third’s
prohibi-
tion of
law
schools.
6O ZA WS AAWD 3'UAE/SPA'UDENCE.
Tecture
II.
Origin of
the Inns
of Court.
Tincoln’s
Inn.
Gray’s
Inn.
From the time of the order of suppression in 1235 “there is,”
says Foss, “a total silence among historians, till the present
reign (Edward III., 1327–1377), as to the places where and
the manner in which the study was pursued.” Foss, vol. iii.,
p. 375. That learned author regards it as beyond dispute “that
during the hundred years before the accession of Edward III.
(1327) there were some establishments for the reception of law
students.” In a case in the Year Book in 29 Edward III., the
judges refer to a certain exception taken “amongst the appren-
tices in hostels;” which implies “a place and means of learning
and a degree recognized in the courts.” Ib., 377. “Although
it is the fashion,” he says, “to attribute to the reign of Edward
III. the institution of the several Inns of Court, it is to be
lamented that legal antiquaries have given us nothing but tradi-
tion as the groundwork of that hypothesis, and have left us
ignorant, not only of their original constitution, but of the
precise distinction between them and the now called Inns of
Chancery.” Ib., 375. Foss does not mean to deny that the
establishments which gradually grew into what were or became
known as the Inns of Court and of Chancery existed in the
time of Edward III., for this fact seems to be beyond contro-
versy. To give only one proof: There is the record of a lease
in 18 Edw. III. (1344), of Clifford’s Inn to the apprentices
of the bench, “apprenticiis de banco,” at an annual rent of ten
pounds. Ib., 383.
“Lincoln’s Inn is considered the most ancient of our legal
seminaries, and is supposed to have been so occupied,” says
Foss, “previous to this reign " (Edward III.). Ib., 380. Spils-
bury says, without doubt or qualification, that “Lincoln’s Inn
is the most ancient of the Inns of Court.” “Lincoln’s Inn,”
by William Holden Spilsbury, London, 1873, chap i. But he
admits that the precise date of foundation is not known. Ib.,
p. 16.
Referring to Gray's Inn, Pearce (“Inns of Court,” p. 315)
says: “Our legal antiquaries agree in the opinion that in
the reign of Edward III. this [Gray’s] Inn was the residence
of a society of students of the law, whose successors have
remained, first as tenants, and subsequently as proprietors
there, from that time to the present day.” Foss, summarizing
the evidence, traditionary and documentary, on this point, con-
OOA” ZA VV ZAV /7'S OZA) AſOA/AF. 6I
siders it insufficient to prove that Gray’s Inn was established
in the reign of Edward III., though he does not deny the
strong probability that such was the fact. Referring to For-
tescue's account, given below, written between 1461 and 1470,
in the time of Henry VI., Foss thus states his own guarded
conclusion: “The evidence of Fortescue, – although he does not
name the four Inns of Court, — and of some further facts which
we shall advance in their proper place, may be taken as demon-
strative of Gray’s Inn having been occupied by students of the
law, certainly as early as the reign of Henry VI. (1422–1461),
and probably before.” Foss, vol. iii., p. 382. Mr. W. R.
Douthwaite, the historian of the Gray's Iñn, claims an origin
for it as far back as A. D. 1300. He says: “The exact date
of its foundation as an Inn of Court is not known. But we
can at once step back to 1311, at which time the Inn can
boast of a bencher, — one Ralphe Andrewe, – whose pedigree is
preserved in the Harleian Manuscript. This brings the founda-
tion back at most to 1300, for even in those days it took time to
make a bencher. The same doubt hangs over the date of foun-
dation of all four Inns of Court. Now and again some writer
whose zeal on behalf of his Inn outran his love of strict accu-
racy has proved to his own satisfaction the priority of one or the
other of them; but the jealous eye of a sister has always found
a flaw in the pedigree, and the Inns are to-day, as they were in
the time of Elizabeth, ‘the four equal and Honorable Societies
of the Inns of Court.’” Mr. Douthwaite, article “Gray’s Inn,”
Green Bag Magazine (Boston), vol. v., p. 65; “Gray’s Inn: Its
History and Associations,” by W. R. Douthwaite, London,
Reeves and Turner, 1886, chap. iii.
Mr. Loftie reviews the evidence pro and con and says: “The
evidence of the existence of the society [Gray’s Inn] before the
time of Henry VIII. is, however, extremely weak.” “Inns of
Court and Chancery,” 1893, chap. x., p. 67. The author means
probably the society organized on its existing plan. “In the
fine old Hall of Gray’s Inn as it now exists Queen Elizabeth
witnessed masques. It is one of the two buildings now remain-
ing in which the plays of Shakespeare were performed in his
lifetime, – the other being the Middle Temple Hall.” Douth-
waite, ubi supra.
As to the Temple, Dugdale, who wrote two hundred years after
Note
A.
Gray's Inn
(con-
tinued).
62 LA WS AAWD jº/RISPRUDEAVCE.
Lecture
II.
The
Temple.
Inns as
legal
Seminaries.
_s=
Fortescue, refers to the tradition that it was “demised to divers
professors of the common law '' in the reign of Edward III.
Dugdale admits that this rests upon tradition; but he adds,
“That they were seated here in King Edward the Third’s time
is out of all doubt.” Record evidence tending to establish this
fact is, however, not wholly wanting. We have above referred
to the lease of Clifford's Inn in the 18th of Edward III., 1344,
to the apprentices of the bench. If Clifford’s Inn was at this
time a dependency of the Inner Temple, the inference that the
common lawyers were then settled in the Temple would be very
strong; and it is one which accords with known contemporary
facts. Foss, vol. iv., p. 26; but see Ib., pp. 141, 279, as to con-
nection between Clifford’s Inn and the Temple. “It is beyond
dispute that the Temple was inhabited by a law society in the
reign of Edward III.” Reeves, “History of the English Law,”
Finlason’s Ed., Reeves & Turner, 1869, vol. ii., p. 439.
The reign of Richard II. (1377–1399), is contemporary with
Chaucer, and Foss concedes that the evidence is sufficient “to
establish the fact that the Temple was then occupied in some
manner by students of the law; and Chaucer's description of
the Manciple, generally understood to have been written about
13 Richard II. (1389), may be adduced as further testimony in
its support, if the first line is to be taken as referring to this
house: —
“A gentil Manciple was ther of a temple
Of which achat ours mighten take ensample,’” etc.
But “in the reign of Richard II. scarcely anything is to be
found illustrative or explanatory of the distinction between
the Inns of Court and the Inns of Chancery.” Foss, vol. iv.,
pp. 26, 27.
“There is no direct evidence of the existence during this
reign [Henry IV., 1399–1413] of any of the four modern Inns
of Court as legal seminaries.” Foss, vol. iv., p. 141. But there
is such evidence at this period of the existence of two of the
modern Inns of Chancery, - Clifford’s Inn and Furnival’s Inn.
Ibid. There is also such evidence in the reign of Henry V.,
(1413–1422), of Gray’s Inn, and of the following Inns of Chan-
cery, viz.: Lyon's Inn, Staple Inn, and Chester Inn, sometimes
called Strand Inn. Ib., pp. 199, 200.
O UR LA W //V WZTS O/L D HOME. 63
In the reign of Henry VI. (1422–1461), flourished Sir John
Fortescue. He was a member of Lincoln’s Inn and a bencher.
He was chief-justice of the King's Bench, and nominal if not
actual Lord Chancellor in the reign of Henry VI. His is
deservedly one of the great names in our law. His work “De
Laudibus Legum Angliae" was written at Berry in France when
in exile between the years 1461 and 1470. In chapter 49 he
gives an account of the Inns of Court, of which he says “there
are four in number,” and of the “ten lesser Inns, sometimes
more, which are called Inns of Chancery.” He does not give
the names of any of either class of Inns. “Every word of his
account of those places of legal study,” says Foss (vol. iv.,
p. 249), “becomes most interesting, as the first authentic proof
of their existence in that character [as legal seminaries], and
the earliest description of their object and exercises.”
Eactract from Chapter Forty-Eight of Fortescue’s “De Laudi-
bus,” concerning the Situation of the Inns of Court and of
Chancery, and the Mode of Study therein, – Amos's Edition,
1825.
“Wherefore the Laws of England being learned and prac-
tised in those three several languages [English, French, and
Latin], they cannot be so well studied in our Universities,
where the Latin is mostly in use; * but they are studied in a
publick manner and place much more commodious and proper
for the purpose than in any University. It is situated near
the King’s Palace at Westminster, where the Courts of Law
are held, and in which the Law-Proceedings are pleaded and
argued, and the resolutions of the Court upon cases which
arise are given by the Judges, men of gravity and years, well
read and practised in the laws, and honoured with a degree
peculiar to them. Here in Term-time the students of the law
attend in great numbers, as it were to public schools, and are
there instructed in all sorts of Law-Learning, and in the prac-
tice of the Courts; the situation of the place where they reside
and study is between Westminster and the City of London,
* “Which reason, however, can hardly be deemed a satisfactory one.”
Foss, vol. iv., p. 249. See more fully, I Blacks. Com., 20–25, and Professor
Hammond's notes to his edition of Blackstone.
Note
A.
Fortes-
cue’s
account.
Chapter 48
of Fortes-
CUL6,
Site of
the Inns.
64 LA WS AAWD 3'UR/SPAC/DEAVCE.
flecture
II.
Chapter 49
of Fortes-
Cl16.
Number of
Inns and
of stu-
dents, etc.
Mode of
life and
study.
which as to all necessaries and conveniences of life is the best
supplied of any City or town in the Kingdom: the place of
study is not in the heart of the City itself, where the great
confluence and multitude of the inhabitants might disturb them
in their studies, but in a private place, separate and distinct by
itself in the suburbs, near to the Courts of Justice aforesaid,
that the students at their leisure may daily and duly attend
with the greatest ease and convenience.”
Eactract from the celebrated Forty-Ninth Chapter of Fortescue's
“De Laudibus,” relating to the Inns of Court and the Inns
of Chancery, - Amos's Edition, 1825.
“But, my Prince, that the method and form of the study of
the law may the better appear, I will proceed and describe it to
you in the best manner I can. There belong to it ten lesser
Inns, and sometimes more, which are called the Inns of Chan-
cery, in each of which there are an hundred students at the least,
and in some of them a far greater number, though not con-
stantly residing. The students are, for the most part, young
men; here they study the nature of Original and Judicial
Writs, which are the very first principles of the law. After
they have made some progress here, and are more advanced in
years, they are admitted into the Inns of Court, properly so
called: of these there are four in number. In that which is
the least frequented there are about two hundred students. In
these greater Inns a student cannot well be maintained under
eight and twenty pounds a year; and if he have a servant to
wait on him (as for the most part they have), the expense is
proportionably more. For this reason the students are sons to
persons of quality, - those of an inferior rank not being able
to bear the expenses of maintaining and educating their children
in this way. As to the merchants, they seldom care to lessen
their stock in trade by being at such large yearly expenses. So
that there is scarce to be found throughout the Kingdom an
eminent lawyer who is not a gentleman by birth and fortune;
consequently they have a greater regard for their character and
honour than those who are bred in another way. There is, both
in the Inns of Court and the Inns of Chancery, a sort of an
Academy or Gymnasium, fit for persons of their station, where
O OVA’ Z.A. W. ZAV / T'S OWLZD AſO.)/AE. 65
m==-
they learn singing and all kinds of music, dancing, and such
other accomplishments and diversions (which are called Revels)
as are suitable to their quality, and such as are usually prac-
tised at Court. At other times, out of term, the greater part
apply themselves to the study of the law. Upon festival
days, and after the offices of the church are over, they employ
themselves in the study of sacred and profane history: here
everything which is good and virtuous is to be learned; all vice
is discouraged and banished; so that knights, barons, and the
greatest nobility of the Kingdom often place their children in
those Inns of Court, not so much to make the laws their study,
much less to live by the profession (having large patrimonies of
their own), but to form their manners, and to preserve them
from the contagion of vice. The discipline is so excellent that
there is scarce ever known to be any piques or differences,
any bickerings or disturbances amongst them. The only way
they have of punishing delinquents is by expelling them the
Society, - which punishment they dread more than criminals
do imprisonment and irons; for he who is expelled out of one
society is never taken in by any of the other. Whence it
happens that there is a constant harmony amongst them, the
greatest friendship, and a general freedom of conversation. I
need not be particular in describing the manner and method
how the laws are studied in those places, since your Highness
is never like to be a student there; but I may say in the
general that it is pleasant, excellently well adapted for profi-
ciency, and every way worthy of your esteem and encouragement.
One thing more I will beg leave to observe, viz.: that neither at
Orleans,— where both the Canon and Civil Laws are professed
and studied, and whither students resort from all parts, –
neither at Angiers, Caen, nor any other University in France
(Paris excepted), are there so many students who have passed
their minority as in our Inns of Court, where the natives only
are admitted.”
A recent writer questions not only the correctness but the
authenticity of “most of the observations in the chapters (48,
49) on the Inns of Chancery and the Inns of Court as spurious
additions made more than a century after Fortescue's death.”
He insists that “the account thus given of the Inns of Court
Note
A.
Chapter
49 of For-
tescue
(con-
tinued).
Comments
on Fortes-
cue’s
relation.
5
66 LA WS AAWD 70A/SPA’ODENCE.
Lecture
II.
Comments
OI).
Fortes-
cue's
relation
(con-
tinued).
bears on the face of it evidence of being composed just before
the date of publication [the first edition appeared early in
the reign of Henry VIII., 1537], and many ages after the
death of Fortescue, containing statements that Fortescue could
not have made, – for example, as to the number of the Inns, and
their use as places of abode, of study, and of diversion; but the
accounts quite accord with the days of Elizabeth and Chancellor
Hatton.” Serjeant Pulling’s “The Order of the Coif,” London,
1884, pp. 153, 158. The learned author does not claim that the
entire chapters (xlviii. and xlix.) are fabrications, or undertake
to point out more minutely what is spurious. I have of course
no means of ascertaining by independent research how far his
sceptical observations are warranted. But if they be so, it is
certainly most remarkable that Dugdale, Coke, Blackstone,
JReeves, Crabb, Selden, Foss, and other learned writers and
legal antiquaries have accepted without question the account
in the published editions of Fortescue’s work as genuine. If
genuine, as would seem likely, there can exist no doubt of its
substantial correctness. Apparently the statements of Mr. Ser-
jeant Pulling are not well considered. It is not correct to say
that Fortescue’s work was not published until many ages after
his death. The first publication of “De Laudibus ” was in
1537, and more than a dozen editions have since appeared.
The exact date of Fortescue’s birth, while not certain, is very
near the year 1400. Record evidence exists that in 1476 he
was in the discharge of his official duties. Tradition has it
that he died when ninety years of age. See “Governance of
Bngland,” by Sir John Fortescue, edited by Charles Plummer,
Oxford, 1885, pp. 72, 85. Foss says that “I)e Laudibus ” was
written between 1461 and 1470; but Plummer fixes the period
of its composition more closely at 1468–1470. The first publi-
cation was therefore within seventy years after it was written,
and probably within fifty years of Fortescue’s death. It would
appear, on the whole, that no good grounds exist to impeach the
accuracy or authenticity of the 48th and 49th chapters of “De
Laudibus.”
The following are Foss’s conclusions as to the time when the
societies of the four Inns respectively assumed their more
modern constitution or order of government: —
“Although Fortescue does not name the four Inns of Court,
O UAE ZA. VV AZW / 7.S. O/L/D AſO/l/A2. 67
we have,” says Foss (vol. iv., p. 254), “sufficient evidence to
show that they were the same [in the time of Henry VI., 1422–
1461] as those now in existence.” We shall therefore proceed to
give an account of them separately,” commencing with Lincoln’s
Inn, “as its records afford the earliest proofs of its antiquity.”
“From the reign of Edward III. till that of Henry VI. we find
no mention whatever of Lincoln's Inn. In the latter, however,
we have its Black Book, which is the earliest existing record of
the proceedings of that or of any other Inn of Court. It com-
mences in 1423. In it are contained the orders of the society,
and the admittances into it from that date. . . . All these facts
and dates seem to establish one of two things: either that the
society received its first formation at this period, or that if it
previously existed, as no doubt it did, a new system of govern-
ment was now introduced into it. (Vol. iv., pp. 255, 258,
259.)
“We are quite in the dark as to the precise time when the
lawyers were first established in the Temple; and equally so as
to the period when the division into the two houses called the
Inner Temple and the Middle Temple took place; . . . but that
it took place before the reign of Henry VI. may be presumed
from Fortescue describing four Inns of Court, which could not
be reckoned without them. (Vol. iv., pp. 267, 270.)
“Although no reasonable doubt, therefore, can be entertained
of the existence of Gray’s Inn as a house of reception for
students previous to the composition of Fortescue’s work, it
may very fairly be questioned whether they held it till about
1506 in the form in which we afterwards find it, — of a society
bound by established rules, governed by a controlling body,
and empowered to confer legal degrees. The evidence afforded
by the books of the society all tends strongly to confirm the
idea that about the latter date an entirely new system was estab-
lished, or at least that its constitution was subjected to a ‘radical
reform.” (Vol. iv., pp. 275, 276.)
“The reign of Henry VIII. may be regarded as the period
When, beyond doubt, all the four Inns of Court were estab-
* Sir William Dugdale (“Origines Juridiciales,” 3d ed., A. D. 1680) says:
“The four Inns of Court mentioned by Fortescue are extant, and eight Inns
of Chancery, of which only two are the same as in Fortescue's time, namely,
Clifford's Inn and Thavie's Inn.” p. 142.
Note
A.
Foss’s cont
clusions as
to time
when the
Inns
assumed
their mod-
€I’Il COI) -
stitution,
etc.
68 LA WS AAWD AC/R/SPACUDAEAVCE.
Lecture
II.
lished upon the system which, making allowance for subsequent
changes in the manners and habits of men, prevails at the
present day.” — (Vol. v., p. 110.) *
NOTE. B.
CEREMONIALS ON TAKING THE COIF, THE STATUS OF A SER-
JEANT-AT-LAW, THE DIFFERENCE BETWEEN A SERJEANT AND
A QUEEN’s COUNSEL, AND OTHER POINTS CONCERNING THE
TWO GRADES IN THE PROFESSION, ETC., ETC.
Mr. B. Coulson Robinson, who became a serjeant in 1865,
published in 1889 a book entitled “Bench and Bar: Reminis-
cences of One of the Last of an Ancient Race.” This was
written, it will be observed, after the Statute of 1875 made
it no longer necessary that a common-law judge should be a ser-
jeant at the time of his appointment, when it was understood
that no more new serjeants would be created, after the sale of
Serjeants' Inn, and when there were “only eleven serjeants
either on the bench or retired from it, and six who are still
[1889] supposed to be practising serjeants, although most of
them have ceased to follow up the profession ” (p. 298); and
hence his reference to himself as “One of the last of an Ancient
Race.” The following concise relation concerning the present
and former status of a serjeant-at-law, the difference between a
serjeant and a Queen’s counsel, the ceremonial of taking the
coif, the final sale of the Serjeants’ Inn, and the practical extinc-
tion of the Order of the Coif, is extracted from it (chaps. xxii.,
xxiii.): —
“It may not be out of place to describe the process of a bar-
rister’s conversion into a serjeant-at-law, and the status he thus
occupies in the profession. It will not be long before there will
exist no living representative of the race.”
Status of
Serjeant-
at-la Wo
1 “The sixteenth century was the real period when the Inns of Court were
first regularly constituted, there being no books or records or reliable chroni.
cles showing that there were before that period, even in the greater Inns,
either governors, treasurers, or readers, – or indeed any regular order of
government.”—Pulling, “Order of the Coif,” 1884, p. 155.
OUR /A W ZAV /TS ONLD HOME. 69
“The position of serjeant-at-law is undoubtedly the oldest,
and was, until comparatively recent times, the very highest
dignity a barrister could achieve below that of a judge. It
dates from about the middle of the thirteenth century. Until
the year 1875, the judges were invariably selected from that
rank; and so strictly was the rule adhered to that even a Queen’s
counsel, who had spent half his life under that title, was
obliged, on his appointment as judge, to become a serjeant per-
haps the day before he was sworn in as a member of the bench.
“The little round black patch on the top of the wig dis-
tinguishes a serjeant from the other members of the bar.”
(pp. 290, 291.) *
“The position of Queen’s counsel is of comparatively mod-
ern date. The first was Lord Bacon, — who is always so called,
although he never bore that title, – but his position had nothing
to do with the rank as it at present exists. He acted merely
as the Queen's private adviser, while the Attorney and Soli-
citor General were the advisers of the Government. No other
appointment of Queen’s or King’s counsel was made for many
years, until Sir Francis North (afterwards Lord Guildford) was
so created in the reign of Charles II. ; and from that period the
title seems to have grown, and to have gradually assumed its
present significance. The Queen's counsel will soon have it
all their own way, for it is now resolved that no fresh serjeants
are to be appointed, although the existing ones maintain the
same rank and privileges they have always enjoyed.
“The cause of their decline from their high estate originated
in the throwing open the Court of Common Pleas to the whole
bar indiscriminately. Until the year 1846, - with a small
interval from 1834 to 1839, - that court was entirely monopo-
lized by the serjeants. No other member of the bar could be
heard within its precincts, although the serjeants were allowed
to practise in them all. But the Common Pleas was considered
to be their peculiar region, and when they [the serjeants] went
into the Queen's Bench or the Exchequer they had to sit in the
back rows, unless indeed they had a patent of precedence. By
an order made, however, by Chief-Justice Cockburn, some time
before I became a serjeant [1865], they obtained the privilege
of sitting in the front one, in all the courts.
“I am often asked what is the difference between a Queen’s
Not,
B.
Of Queen's
counsel.
Decline of
order of
Serjeants.
.*
7o ZA WS AAWD 70F/SPRUDENCE.
–º,
counsel and a serjeant. In the first place, I may state that the
former is created by patent and the latter by writ under the
Great Seal. As to rank, there is no difference whatever between
a serjeant who has obtained a patent of precedence and a
Queen's counsel; but with regard to serjeants who have no
patent it is otherwise. Theirs is an intermediate grade between
Ełer Majesty’s counsel and the rest of the bar; so that every
newly created Queen's counsel takes precedence of an unpatented
serjeant, however long he may have worn the coif. The Queen’s
counsel always appear in black silk gowns, in and out of term.
The serjeant has several additional robes: black cloth in term
time, except on saints' days when purple cloth is worn, while
black silk was the robe out of term at nisi prints, – which
means trial before a jury. A scarlet gown is only worn by
them at the churching of the judges at St. Paul’s in Trinity
term and at the Guildhall banquet, — at the latter of which occa-
sions some of them had always the privilege of attending with
the judges. When I became a serjeant [1865], it was de rigueur
that these habiliments should be worn at the prescribed times;
but shortly afterwards the rule was gradually disregarded, and
latterly black silk has been our only wear in court.
“Another distinction is, that the serjeant holds a rank quite
independent of the profession, while a Queen's counsel has no
recognized position out of it, so that, while in general Society a
serjeant would rank above a Queen’s counsel, in matters relat-
ing to the profession he would rank below him, -unless he had a
patent of precedence; then their relative positions would depend
on the date of their respective appointments. And, again,
the serjeants are also quite independent of the sovereign, while,
as I have said before, the Queen’s counsel are always assumed
to be in the service of Her Majesty, as her private advisers,
though I need hardly say they are very seldom honored with her
confidence.” When I was called to the bar there were sixty-
Lecture
II.
Difference
between a
Queen’s
counsel
and a
Serjeant.
1 “The serjeant differs in many important respects from the King's
counsel. He has to take a very remarkable and ample oath, by which he
binds himself to plead for all, however humble their condition.” Woolrych,
“Lives of Eminent Serjeants-at-Law,” vol. i., Introduction, p. 27, where the
form of the oath is given. See also form of oath: Foss, vol. i., p. 24; Preface
to 10 Coke Reports, p. xxii. Form of writ: Foss, vol. i., p 24; 1b, vol.
iv., p. 21 ; Manning, “Serviens ad Legem,” p. 33. Coif and dress: Foss, vol.
i, p. 25; Ib., vol. iv., p. 243; Pulling, passim and illustrations. Rings: Foss,
vol. iv., p. 242; ante, pp. 53, 54, and note,
OOWA’ LA W //V / 7'S O/LD HO//E. 7 I
three Queen's counsel; there are now about three hundred.”
(pp. 293–296.)
“The power of conferring the coif rested — in fact, still
exists — with the Lord Chancellor, but he never exercises
1t except at the recommendation of the chief-justice of the
Common Pleas.” (p. 300.)
“On the creation of a serjeant, a number of gold rings (about
twenty-eight) had to be bestowed by him on several persons of
different grades, – the Queen, the Chancellor, the judges, and I
think the masters of the Common Pleas. Even the chief usher
of that court received one, but it dwindled down to a hoop of not
much greater breadth than a curtain ring and about one tenth
of its thickness. Her Majesty’s ring was a very massive affair,
— nearly an inch long, — with enamel in the middle and mas-
sive gold ends; on the former was engraved, - as indeed was
the case with all of them, - a motto specially chosen for the
occasion. The Chancellor's and the judge’s rings were about
one third of an inch in breadth, but luckily for me not very
thick, - as I had to pay for them. The greater number I
never saw, for the goldsmith always undertook to distribute the
gifts to those who by immemorial custom had a claim to them.
It was only the Queen's, the Lord Chancellor’s and the colt's of
which we had personal inspection. I may state that the ‘colt'
is generally a young professional friend, who attends the new
serjeant on his being sworn in before the Lord Chancellor, and
who is an ancient and necessary appendage to the ceremony.
He walks in (pone) behind his principal, and it is said that the
term ‘colt' is merely a parody on that Latin word.
“The ceremonial itself is very simple. You go in full
official dress with your colt before the Chancellor in his private
room, where the Queen’s writ conferring the rank upon you is
read. The oath of allegiance is then administered by the Chan-
cellor; after which you kneel down before him, and he pins the
coif (consisting of a patch of black silk with a white crimped
border) on the top of your wig, and you become a serjeant-
at-law. You are henceforth addressed by the judges who are
serjeants as ‘brother,’ but the relationship ends there; we never
take the same liberty. In court we address them as “my lord,”
and in private as ‘judge.’
“On rising from your knees and receiving the congratula-
Note
B.
Ceremoni-
als on crea-
tion of a
serjeant-
at-law.
72 ZA WS AAWD jº/R/SPA’ODAEAVCE.
Lecture
II.
Serjeants'
Inn.
tions of the Lord Chancellor, the colt advances and presents the
Queen’s ring to the Chancellor, requesting him to beg Her
Majesty’s acceptance of it in the name of his principal; another
is presented to the Chancellor, and a third is kept by the colt as
his own perquisite.
“The next thing to be done was to get yourself proposed as a
member of the mess at Serjeants' Inn, – that is, if you wished
it, which, of course, every newly-made serjeant did. But it
was not compulsory. There were formerly three different clubs
or societies of serjeants, each called Serjeants’ Inn. One in
Holborn, near Hatton Garden, which has, I believe, for cen-
turies ceased to exist; another in Fleet Street, which, although
bearing the name, has for many years had no connection with
the serjeants in fact. The only recognized Inn of late years
was that in Chancery Lane, the whole of which was sold a few
years ago, and the proceeds divided amongst the serjeants. Of
this sale I shall have a few words to say presently. The prop-
erty consisted of a long range of buildings in Chancery Lane,
let out in offices, an ancient and not very picturesque hall, a
remarkably handsome dining-room, a reading-room, spacious
kitchens and cellars, and other conveniences adapted to an
ordinary club-house.
“On being elected to the mess a practising serjeant had to
pay an entrance fee of three hundred and fifty pounds; a judicial
one — that is, any one so created as a preparative to a judge-
ship – paid five hundred pounds; and, for some time after my
joining, every member paid fifteen pounds a year as commons,
but this sum at last dwindled down to zero, and we paid nothing
for our board or for the other conveniences the Inn afforded us.”
(pp. 301–304.)"
1 “Previous to the actual call or creation of serjeants,” says Pulling,
“there were in former times stately ceremonies of the Inns of Court ; the
newly elected serjeants assembling each in the hall of the Inn, when
learned addresses were delivered, and a purse of gold de regardo or by way
of retaining fee given to each of the new serjeants, who were then rung out
of the society by the chapel bell, -a usage kept up, at all events at Lincoln's
Inn, to a very recent time.” “The Order of the Coif,” p. 229,
Lord Campbell being appointed chief justice of the Queen's Bench, writes,
March 5, 1850 : “This morning began with ‘ringing me out' of Lincoln's
Inn. The prospect of the ceremony made me rather uncomfortable from the
time I knew Brougham was to preside in it. . . . Brougham tried to play me
O&WR LA W IN ITS O/L.D HOME. 73
In answer to the adverse criticism which was made on the
action of the serjeants in selling their Inn and dividing the pro-
ceeds amongst themselves, the insinuation being that it was
public property, Mr. Serjeant Robinson says: “That Serjeants’
Inn was a private club, and that our funds were derived from
private sources, may surely be sufficiently established from this,
that the fifteen judges would never have acted as they did if
there had been a scintilla of proof or even of suspicion to the
contrary. There was not one of the serjeants who did not
deeply regret the necessity of parting with our venerable hall
and its appendages, but not a voice was raised against our
right to proceed to a partition. With the certainty that no
more serjeants would be created, judicial or otherwise, and that
our income of £1,500 or £2,000 a year would thus be cut off
from us, it was impossible that the establishment could be
maintained on the same liberal scale as of yore; we should be
gradually dying off, like the members of a tontine, until the
property ultimately vested in the survivor to do as he please
with, for there was no one else who could have the slightest
claim to it. The Inn was accordingly sold, and the proceeds
divided amongst the members.” (Chap. xxiii., p. 313.)
Pulling on this subject says: “Under the private Act in
1834 the society [of Serjeants' Inn) was constituted a corpo-
ration, and this incorporated Society still continues, though
without worldly property, for its accounts have all been wound
up. Its only remaining possessions [1884], the interesting old
pictures, have been presented to the National Portrait Gallery,
and now form part of that collection.” “The Order of the
Coif,” chap. v., p. 127, note.
Mr. Serjeant Ballantine records (“Experiences,” chap. xvii.)
that in 1872 he was elected treasurer of Serjeants’ Inn, and
a dog's trick by running off with my fee of ten guineas as a retainer to plead,
when become a serjeant, for the society of Lincoln's Inn. I made him dis-
gorge the money at the House of Lords by threatening to sentence him to the
gallows as a thief, and by commencing my judicial career with a notorious
culprit I was sworn in before the Chancellor at four o’clock. . . . First I
was made a serjeant and then my patent writ as chief-justice was handed to
me. . . . I dined twice at the Serjeants' Inn, my admission to which cost me
near seven hundred pounds.” “Life of John, Lord Campbell,” chapters xxix.,
xxx, by his daughter, Mrs. Hardcastle. y
Not
B.
Sale of
Serjeants'
Inn.
74. A WS AAWD 3'URISPRUDEAVCE.
Lecture
II.
Bibliog-
raphy.
annually re-elected until 1875, when he accepted a retainer
to go to India; and that on his return, “being reinstated,
I remained treasurer until the abolition of the Inn; and if I
have no other word inscribed on the roll of fame, I shall be
recorded as the last treasurer of one of the most ancient, and
at one time the most honored, of the institutions of Great
Britain. . . . The order to sell the property was made at the
last meeting, held on April 27, 1877.”
Mr. Herbert has an interesting account of the Antiquity and
Dignity of Serjeant-at-law, “Antiquity of the Inns of Court,”
chap. x., p. 358, London, 1804. Mr. Serjeant Woolrych has
two excellent volumes entitled “Lives of Eminent Serjeants-
at-Law,” London, 1869. Mr. Serjeant Pulling has written a
history of the order, under the title, “The Order of the Coif,”
London, 1884, with illustrations; it is a work of careful
research and of exceeding interest. Serjeant Wynne published
a tract in 1765, entitled “Observations touching the Antiquity
and Dignity of the Degree of Serjeant-at-Law, with Reasons
against laying open the Common Pleas '' [“to all barristers to
practice in that Court as serjeants do now 'J. See also first
Report of the Common-Law Commissioners on the subject of
“Serjeants' Inn and the Inns of Court,” and Serjeant Man-
ning's Report of the “Serjeants’ Case,” Longmans & Co., 1840;
Crabb’s “History of English Law,” London, 1829, pp. 182,
416; Wynne’s “Eunomus,” Dialogue II., § 53; Pearce, “Inns
of Court,” pp. 428–440; Fortescue, “De Laudibus,” chap. l.,
“Of the State, Degree, and Creation of a Serjeant-at-Law; ”
“The Tenth Part of the Reports of Sir Edward Coke,” Intro-
duction, p. xx.
LECTURE III.
THE EDUCATION AND DISCIPLINE OF THE ENGLISH BAR, AND
HEREIN of THE INNs of CourT, THEIR HISTORY, CHARAC-
TER AND PURPOSEs (CONCLUDED). THE LITERARY Associa-
TIONs of THE INNs of CourT (NotE A). STUDENTSHIP
IN THE INNs of CourT, AND MODE OF BEING CALLED TO
THE BAR (NOTE B).
I RESUME the subject of the last lecture. Each
of the Inns of Court has numerous buildings
of its own, consisting of chambers or rooms let
for hire, mainly to the barristers and students; *
and belonging to each Inn is a large library hall, a
spacious kitchen, and also a commodious and beau-
tiful hall used for readings, dining, etc., and a chapel
for religious service. The Inner Temple owns and
in common with the Middle Temple uses for the
latter purpose the exquisite Temple Church built by
the Knights Templars (in imitation of a temple near
the Holy Sepulchre), and which was dedicated in
A. D. 1185, over seven hundred years ago. In the
* “The whole number of inhabited houses in the Inner Temple is
said to be forty-two, which seems large in comparison with the twenty-
three of Lincoln's Inn, but is exceeded considerably by the fifty-six
at Gray's Inn.” Loftie, “Inns of Court and Chancery” (Macmillan),
1893, p. 32. According to the census of the city in 1891 there were
nine hundred and eighty-two employers in the Inner Temple, and
eight hundred and fifty-seven in the Middle Temple. Loftie, p. 24.
Lecture
III.
Buildings
and halls.
Temple
Church.
76 LA WS AAWD # CVR/SPAC/D/EAVCAE.
Lecture
III.
Literary
associa-
tions.
chapels and the Temple Church some of the most
eloquent and pious of the English divines have
exercised their sacred office, among whom may be
mentioned as familiar to us the names of Hooker,
Donne, Hurd, Tillotson, Heber, and Warburton.
Chambers or apartments in the Inns are let
to others as well as to members of the profes-
sion. These have been thus occupied by some of
the most famous of the poets and writers of Eng-
land, and this gives to the Inns an added interest.
How close and intimate are the ties between the
people of our race in this new country and their
ancestors in the old appears not only in our laws
and institutions but in our whole history. It was
reserved, so far as I know, for an American, Mr.
Hutton, to make the first compendious survey of
what I may call literary London, and to display its
landmarks and the footprints of its great poets,
writers, and authors. I quite agree with his obser-
vation that “ London has no associations so inter-
“esting as those connected with its literary men,
“and that to the cultivated reader the Temple owes
“its greatest charm to the fact that it was the birth-
“ place of Lamb, the home of Fielding, and that it
“contains Goldsmith's grave.”" These names are
here put by way of example only, - of eminent
example, if you please, – but there are other names
equally illustrious to which Mr. Hutton refers in the
body of his book, and there are also some others
which he has omitted to notice.
After a day of labor in the contentious arena of
the court room, where my life has been so largely
* Hutton, Introduction to “Literary Landmarks of London.”
O OVA’ ZA VV ZAV ZZTS O/L/D AſO/l/Z. 77
spent, I have filled up the tranquil leisure of an
evening, or the other precarious leisure that comes
to the active lawyer or the judge, by literary recrea-
tions, and in course of these have made notes of the
distinguished men of letters who have had chambers
or lodgings within the Inns. Time allows me only
to cast a hasty glance over these notes, and merely
to pronounce the names of Chaucer, Beaumont,
Sidney, Chapman, Bacon (who equally belongs to
philosophy, law, and literature), Fielding, Cow-
per, Johnson, Boswell, Goldsmith, Horne Tooke,
Sheridan, Hallam, Lamb, Macaulay, Thackeray."
Destined as you are for a profession which yet
happily retains its claim to be regarded not only
as a learned but liberal calling, I trust you will not
tax against me the few moments of your time which
this reference to the literary celebrities of the Inns
has taken, and without which even this outline
sketch — for it is nothing more — would be mani-
festly deficient. So long as the world shall recall
the unselfishness of Sidney; so long as it shall
remember “The Canterbury Tales,” shall admire the
sturdy morality of Johnson and read the history of
“Rasselas, Prince of Abyssinia; ” so long as it shall
delight in “The Vicar of Wakefield,” “The Travel-
ler,” and “The Deserted Village,” — so long will
these works and their authors remain associated in
men's memories with the Inns wherein they lived
and studied, rejoiced and suffered, toiled and
* I have made some extracts from these notes, which, in the hope
that they may be regarded with sufficient interest to be worth the
small space they occupy, I have reproduced in a note (A) at the end
of this lecture.
Lecture
III.
Eminent
men of let-
ters who
have
resided
within the
Inns.
78 M.A WS AAWD 90R/SPRUDEAVCE.
Tecture
III.
Ancient
legak edu-
cation in
the Inns.
Readings
and moot-
ings.
wrought, while they became immortal. This is
not a digression, but belongs to my subject; though
if it be considered a digression, I pray you to
pardon it to the love of literature. It would lead
me too far afield to mention with proper comment
the great names in the law who constitute the pride
and glory of the respective Inns; and I therefore
resume my main purpose, namely, a consideration
of the Inns in connection with legal education, and
their exclusive faculty of calling persons to the bar.
From the institution of the Inns down to about
the period of the civil disturbances of 1640, the
exercise of readings was the principal mode of
legal instruction therein. The Inns were estab-
lished for this purpose among others, but provision
was made only for instruction in the common law."
The instruction so far as given in the Inns was
mainly by readings and mootings. The ancient
readings continued only about “three weeks in
every Lent and every August of each year,” until
they fell off in consequence of the excessive and
sumptuous practices which will be referred to pres-
1 In Mr. Smith’s paper on “Ancient Legal Education in the Inns
of Court,” 1856, vol. i., Juridical Society Papers, 385, it is said: “On
the whole, the system of education anciently in use at the Inns is
entitled to more respect than it often receives, although the slight
esteem of it is not surprising. . . . At all events, the system in these
legal colleges was obviously suited to their special objects, – the
cultivation of a learned acquaintance with the laws, and readiness
and skill in applying them. There is something pleasing in the
co-operation of the different grades of the societies in their common
occupation. Benchers and readers, utter and inner barristers, and
students appear to have been combined in the pursuit of legal
knowledge.” See also Smith, “History of Education of the English
Bar,” London, 1860, chaps. ii., v., vi.; Douthwaite, “Gray's Inn : His-
tory and Associations,” chap. iv.; Pearce, “Inns of Court,” chap. iv.
O OVA' L.A. W. WAV / 7 S O/L/D AſO/l/ E. 79
ently. Mootings were arguments of put cases or
doubtful questions in the law, between benchers
and barristers, in the hall of the Inn, in the pres-
ence of the students.
The reader was annually elected by the benchers
from the most eminent or learned of the barristers,
and the office was considered one of great distinc-
tion. The readings consisted of an analysis and
exposition of some leading statute, or important
section of a statute, in the light of the common
law and the adjudged cases. Many of these read-
ings, relating “ to the grounds and originals of the
law '' extending back to the time of Edward VI.,
are still extant, and the more important of them
have been published."
The original object of the readings and the kin-
dred exercises of mootings was instruction, but in
the course of time the readings were attended with
expensive entertainments given to the nobility,
judges, and gentry of the kingdom ; the expenses
* “The readings were, from the very foundation of these seminaries,
looked upon as a vital part of their constitution.” Pearce, “Inns of
Court,” chap. iv., p. 65. Lord Coke (1 Inst., Preface) enumerates, after
his laborious and learned manner, five excellent characteristics of
the ancient readings. We owe to this exercise twenty-three readings
on “Fines” (27 Edw. I., chap. i.), by Sir Edward Coke, reader of the
Inner Temple (temp. Elizabeth); a reading on “Sewers” (23 Henry
VIII., chap. v.), by Robert Callis, reader of Gray’s Inn, A. D. 1622,
republished as late as 1824, and known as “Callis on Sewers; ” on the
“Statute of Uses" (27 Henry VIII., chap. iii.), by Sir Francis Bacon,
also reader at Gray’s Inn (temp. Elizabeth); and many other readings
by such lawyers as Littleton, Dyer, Plowden, Fitzherbert, and Finch.
Many of these readings are still regarded with great, and often with
authoritative, respect in the courts of Westminster Hall. An alpha-
betical list of principal Readings on Statutes is given in Clarke's
Bibliotheca Legum (2d ed.), p. 402.
Tecture
III.
What the
readings
consisted
of.
8O ZA WS AAWD 70A/SPRUDEAVCE.
Lecture
III.
Disuse of
readings ;
revels,
plays, and
entertain-
ments.
ſ**|
iN
i
|
*s
fell upon the reader, and often amounted to £1,000
in the course of two or three weeks, – a sum equal
in value to more than three times that amount in
our day. This expensive honor finally caused the
disuse of readings. During the period when these
sumptuous entertainments were given by the read-
ers, the Inns of Court were at certain seasons the
scene of fantastic plays and masques, and riotous
revels, which were likewise conducted on an extra-
vagant scale, and were scarcely consistent with the
purpose of the Inns as seminaries of legal learning.
These were often attended by the Sovereign, the
court, and the nobility, and reached their height
in the reign of Elizabeth. They continued until
the rebellion of 1640; but when the spirit of the
Puritan obtained ascendency, entertainments of
this character were denounced by an act of Par-
liament as “the very pompes of the Divell.”
As legal colleges or universities the Inns of
i Pearce, “Inns of Court,” p. 113. See Gardiner's “History of
England,” vol. vii., chap. lxxiii., as to Inns of Court masque of 1633,
the prevailing immorality of the stage, the prosecution and cruel pun-
ishment of Prynne, – who was sentenced by the Star Chamber to be
imprisoned for life; to a fine of £5,000; to be expelled from Lincoln's
Inn ; to be incapable of practising his profession, degraded from his
degree in the university, set in the pillory, where both his ears were
to be cut off. In reading the history of that era, even as drawn by
the calm and temperate Gardiner, we feel our blood grow warm, and
conclude that Cromwell was necessary and that he came none too
soon. Milton’s “Comus ” prefigured and heralded the coming ele-
vation of the literature of the drama, though destined to be delayed
beyond the Restoration.
“The Czar of Muscovy, Peter the Great, was present at the Christ-
mas revels in the Temple, 1697–8. The last of the revels in the Inns
of Court took place in the Inner Temple Hall, on the elevation of Mr.
Talbot to the woolsack in 1733.” Pearce, “Inns of Court,” p. 128.
O OVA’ CA VV VAW / 7.S. O/LO HOA/A2. 8I
\
Court were chiefly deficient in the want of a gen-
eral, comprehensive, and systematic course of
instruction. The course was essentially practical,
— exclusively and distinctively English. The main
purpose was instruction in the common law and
its statutable modifications and additions. It must
have been contemplated that much the greater part
of a legal education should be acquired in other
modes than from the brief readings and occasional
mootings. Accordingly the custom of reading in
attorneys' offices, or with a barrister or private tutor,
has long prevailed in England." It is called by
Lord Campbell “the pupilizing system,” which is
much the same as reading in lawyers' offices in this
country, although the pupil is in chambers at one of
the Inns of Court.
The Inns of Court maintained their primary
and leading character as largely intended for legal
instruction until the fifteenth century, when they
became, as I have said, places of gayety and revelry.
Their efficiency as seminaries of instruction declined,
and from the middle of the seventeenth century the
instruction in them was nominal, the real instruc-
tion being chiefly conducted in private offices. It
is only in our own time that the function of the
Inns as places of legal instruction has been restored.
In 1852 the four Inns, acting in concert, jointly,
established a uniform system for the legal educa-
tion of the students, and to that end created five
1 Smith, “Legal Education,” p. 157. For an excellent sketch of
the instruction given at that time in the Inns of Court, see Chancellor
Hammond’s article in Steiger’s “Cyclopedia of Education,” p. 515,
title “Law Schools.”
Lecture
III.
Defective
system of
legal edu-
€ation in
the Inns. .
Modern
legal edu-
cation in
the Inns.
6
82 LA WS AAWD 3'UA'/SPACODEAVCE.
Lecture
III.
Present
scheme of
legal edu-
cation in
the Inns.
professorships; and students were required, as a con-
dition of eligibility to be called to the bar, to attend
for one year the lectures of two of the readers, or
if this were not done to pass a satisfactory public
examination. The readerships were filled by emi-
nent jurists, and the prescribed course of instruction
was minute and quite comprehensive. In 1872 an
enlarged and amended scheme of legal education
was promulgated by the four Inns.
At the present time (1892) the Council of Legal
Education of the Inns of Court has the superintend-
ence of all matters relating to the education and
examination of students for the purpose of being
called to the bar, or of practising under the bar.
This council consists of twenty benchers, five of
whom are nominated by each of the four Inns.
Before a person can be admitted into either of the
Inns as a student he must satisfactorily pass an
examination in the English and Latin languages
and in English history. A public examination is
also required and must be satisfactorily passed as
a condition of being called to the bar. The scheme
of instruction has been much enlarged, and it em-
braces an examination in the Roman as well as in
the English law. The details concerning the legal
education now required of both branches of the
profession are set forth in the Report on Legal
Education, prepared by a most competent and
learned committee of the American Bar Associa-
tion, with the active assistance of the United States
Bureau of Education, and submitted to the Asso-
ciation at its meeting in 1892. That report is the
most complete view of the subject that has ever
OOA’ CA VV VAW / ZTS O ZZO AſO/l/A2. 83
g---
been presented. An attentive perusal of it will,
I think, fully support the observation I made on
the floor when the subject was under discussion,
to the effect that if the Association had never
done anything else to justify its existence, that
report alone would constitute such justification."
Since the making of that report we are informed
that a new scheme of lectures has been determined
upon by the Council of Legal Education, which
would seem to indicate that the subject in England
is not yet upon a perfectly satisfactory basis.”
* On the subject of legal education and admissions to the bar
three valuable reports have been made to the American Bar Asso-
ciation. The first was submitted in 1879 by a committee consisting
of Mr. Carleton Hunt, Mr. Henry Stockbridge, and Mr. Edmund H.
Bennett, and is printed in the Report of the American Bar Association
for 1879, p. 208. No definite result was reached, and the subject was
revived in 1890, and a report made which will be found in the
Report of the Association for 1891, p. 301. The report was re-com-
mitted, and a final report made which appears in the Report of the
Association for 1892, p. 317. The committee were effectively aided by
the United States Bureau of Education, which has published as an
official document the committee's report of 1892, with tables and data
“showing what is taught, and what methods of instruction are pur-
sued in the leading law schools of the various countries, and giving the
latest statistics available.” The membership of this committee during
the three years of its existence has been as follows: In 1890 William
G. Hammond, George M. Sharp, and Henry Wade Rogers; in 1891
the same gentlemen, with the addition of J. Hubley Ashton; in 1892
the gentlemen last named, with the addition of Samuel Williston.
The report as published by the Bureau of Education, 1893, contains
much matter not found in the report as printed in the proceedings
of the American Bar Association.
* “A new scheme of lectures is about to be started by the Council
of Legal Education. Everything will depend on the working of it.
On paper it is certainly better than the old one; and if it be worked
With zeal and intelligence the Inns of Court may possibly within a
few years be not much inferior as a centre of legal instruction to an
average Second-rate American law school.” Sir Frederick Pollock in
Law Quar. Rev., vol. viii., 19 (1892).
Lecture
III.
Report of
American
Bar Asso-
ciation
on the
Subject.
84 LA WS AAWD jº/RISPRUDENCE.
Lecture
III.
Criticism
on English
course of
legal edu-
Cation.
Foreign jurists and teachers have always marked
and condemned as inadequate the limited scope of
legal instruction in England. Thus MM. Durand
and Terrel in substance observe as follows: —
“What distinguishes the English course of legal
“education is its practical character. We may
“justly praise the organization of the English
“bar, but cannot condemn too strongly its want
“of theoretical studies. This education makes good
“lawyers and even good judges, but cannot create
“accomplished jurists who are able to advance
“the science of jurisprudence.””
I must admit the general truth of the criticism,
but must also insist that a system of education
which makes good lawyers and good judges cannot
be regarded as a failure, although defective in a
more general and scientific view. Doubtless it is
a system capable of improvement, and one that
ought to be improved. However it may be in
England, it is certainly true in this country that
the subject of legal education, both as respects the
scope and methods of instruction, is in an unsettled
and unsatisfactory state. Wherefore I hope you
will indulge me in some observations thereon,
although my brief experience of three years as a
law teacher in Columbia College does not enable
me to speak with any considerable weight of
1 MM. Durand and Terrel, Preface to Professor Lioy’s “Philosophie
du Droit.” They say: “Ce quicaractèrise l'enseignement anglais, c’est
done son caractère pratique. Si l’on peut louer justement l'organisa-
tion du barreau anglais, on ne saurait condamner trop Énergiquement
ce défaut d'études théoriques. Cette éducation peut faire de bons
avocats et même de bons magistrats, mais elle ne saurait créer de
veritables savants qui fassent avancer la Science du droit.” Preface,
cxxvii.
OUAE LA W //V /TS O/C/D HOME. 85
authority. All will agree, I think, that there are
few questions which more intimately concern the
well-being, not only of the profession but of the
people, and especially a free people.
The following are in my judgment the more mate-
rial considerations belonging to the subject under
the general conditions which surround it in this
country. These conditions are in some respects
peculiar, and particularly those that practically limit
the course of instruction to two or three years.
1. We must take things as they are, and shape
our course accordingly. Practically, the law schools
in this country are limited, or rather they are forced
to limit themselves, to a two or at most a three
years' course.” Excuse the homely phrase, but we
must “cut the garment according to the cloth.”
Keeping this in mind, the primary object aimed
at is to teach the great principles of law and juris-
prudence; but these are to be taught with special
and direct reference to our system of law, and not
some other. Nearly every law student contemplates
admission to the bar and the practice of the law
as a profession. This in connection with the short
course compels the teaching to assume almost exclu-
sively a practical character, and to be directed (if
it will not mislead to say so) toward making the
student a lawyer rather than a jurist. I would
that every student might receive what I may call
a juristic training ; but this is not, as things now
stand, practicable to the full extent that is desir-
1 Report of Committee of the American Bar Association, 1892,
above mentioned, printed by the United States Bureau of Education:
“Report on Legal Education ” (1893), pp. 13, 15.
Lecture
III.
Scope and
methods of
legal edu-
cation in
this coun-
try.
Limited
terms of
study.
86 A WS AAWD 90/º/SPA’UDEAVCE.
Lecture
III.
Teaching
of the law
too prac-
tical and
technical.
“Case
system ’’
and ‘‘text-
book
system ’’
of instruc-
tion.
able. In saying this I must also take leave to
say that I decidedly think the actual course of
instruction in our law schools is too intensely prac-
tical and technical; that law if not taught too much
as an art is taught too little as a science; and that
the course of instruction can have and should have
a broader scope than it has when the student is con-
fined to the usual text-books written for practising
lawyers, and the designated illustrative cases, since
the oral instruction rarely goes beyond this range.
To supply this want, the Civil Law, for purposes of
comparative jurisprudence, and because of its more
orderly and scientific arrangement, should, in its
great outlines and essential character, be made
an element of instruction to a greater extent than
it is in our American law schools. Except in this
view and in this incidental or subordinate way, I
doubt its utility in the short course of legal study to
which our law colleges are confined. I have long
been of opinion that less than a three years' course
of study ought not to be adopted.
2. The law must be learned from text-books,
adjudged cases, and oral instruction, including
therein lectures and class exercises. There is a
great deal of current discussion as to the relative
merits of what is termed the “case system ’’ and
the “text-book system.” My experience does not
enable me to pronounce any judgment concerning
the merits of this controversy. I am not even sure
that I exactly understand the question in dispute.
The difficulties in the way of teaching our law are
many and great. Our law consists of, or is to be
found in, constitutions and statutes, and what is
O UAE ZA W ZAV / 7 S O/LD AſO/l/A2. 87
z-
called case-law or judiciary law. In our legal sys-
tem the only authoritative sources, or, more accu-
rately, the authoritative evidences of the latter and
of the true meaning of the former, are to be found
in the reported judgments of the courts. Now, for-
tunately for our jurisprudence, but unfortunately
both for the teacher and the student, our case-law
is embodied in many thousands of volumes of
reports; and of these reports any system of instruc-
tion with which I am acquainted necessarily makes
use. Our elementary treatises, numbering many
hundreds of volumes, are written not for the pur-
pose of the teacher, or primarily for the purpose of
the instruction of students, but for the use of the
practising lawyer. They are, therefore, not specially
adapted to the use of the student or the teacher of
law. It is a work which belongs to the future, but
it is a work which I think must sooner or later be
done, – to cast our law into a more orderly, method-
ical, and scientific form ; and when this shall be
accomplished the work of the teacher and the stu-
dent will be made much easier and more satisfactory
than it now is. The great drawback to-day, alike
of the teacher and the student, is the non-existence
of elementary works written by lawyers of com-
petent learning and experience, designed for the
specific purpose of enabling the teacher to teach and
the student to learn the elements, the great primor
dial and essential principles of our jurisprudence.
And by reason of the inorganic shape, if I may so
express it, in which our law is found, comes the
urgent need of oral instruction and exposition; for,
after all, private law in its essence consists largely
Lecture
III.
Need of
text-books
specially
designed
for teach-
ing law.
88 ZA WS AAWD # URISAA’UDEACE.
Lecture
III.
Conclu-
sions
stated.
-
in certain great principles of justice and right, to
acquire knowledge of which is the primary object
of legal education.
The importance and value of the reports as au-
thoritative examples, expositions, and applications
of these principles, cannot be overrated; but it is
easy to underrate the necessity and importance of
elementary treatises. In the voluminous and un-
methodized state of our law they are indispensable.
It is not too much to say that under existing con-
ditions they are absolutely necessary to the student,
to the lawyer, and to the judge.
My conclusion is that in any well-considered sys-
tem of legal education, oral instruction (including
therein lectures, recitations, colloquies, moot-courts,
etc.), text-books, and cases must go together. If I
were to assign a relative value to the three, I would
say the first in importance is the oral work of the
teacher, and that he must use both the text-books
and selected cases, not according to any rigid or
prescribed system, but in such way that, according
to his skilled judgment, the principles of law — the
end to be sought — can be the most easily and
thoroughly mastered.
I believe, as an indifferent observer (although I
attach little weight to my own judgment), that
the discussion concerning the competing systems
of “instruction by case-law " and “instruction by
text-books” has already had one beneficial result,
and that result is to show that neither of these
methods should be the exclusive method; that pos-
sibly (though I do not state this upon personal
knowledge of the matter) somewhat more of oral
O OVA’ Z.A. W. WZV / 7.S. O/LZD AWOA/A2. 89
exposition and elementary instruction could be
profitably carried into the case system, and some-
what more of the case system into what is known
as the text-book system. -
If I could realize my notion, under existing con-
ditions, of the expedient mode of legal instruction,
I would assume that the students' minds were wholly
uninformed. I would call the class into the lecture-
room, and selecting a subject, would orally outline
or chalk out in the most elementary way its place
in and its relations to the legal system, and the
great principles that underlie it. Then, if the
particular subject were well treated in some text-
book, I would require that to be studied, and also
to be studied some of the leading cases upon it.
Whether on any given subject the case-system
or some other system should predominate would
depend, of course, on circumstances. The student
should then be required to recite both upon the
text-book and upon the selected cases, and to state,
analyze, and discuss the latter, — the professor's
function being to see that the principles were mas-
tered, and the mode in which they were applied
in the selected cases fully understood.
The great test of the teacher is: Does he inspire
enthusiasm in the student & Does he set him think-
ing? Does he make him work? If so, the particular
mode in which he accomplishes this is comparatively
unimportant.
I close with a brief reference to the legal char-
acter and faculties of the Inns. Their legal char-
acter has been clearly ascertained by numerous
Lecture
III.
Advisable
mode of
instruc-
tion sug-
gested.
90 LA WS AAWD 5*UR/SPRUDEAVCE.
Lecture
III.
Legal
tharacter
decisions." The adjudged cases establish the follow-
ing points: The Inns are voluntary societies, and not
corporations; they have no charters, either from the
Crown or Parliament. They are self-governed. The
courts cannot interfere with the internal management
of their affairs. In respect of their acts or orders
affecting members, they are not subject to the juris-
diction of the Courts of Westminster Hall proceeding
according to the common law. They cannot be
compelled by mandamus or otherwise to admit per-
sons to become students or members of the society
with the view of being called to the bar. This rests
alone with the society. When admitted as members,
the visitatorial power of the judges attaches, and the
action of the society in refusing to call a member to
the bar, or in expelling him from the society, or in
depriving him of his gown, – that is, disbarring him,
— may be reviewed by the judges on an appeal (but
in no other mode), against the Orders complained of
The power to call members to the bar seems not
to be oppressively or illiberally exercised, since it
appears that during a period of twenty years only
three students had been refused admission to the
bar by the four Inns of Court.
of the Inns
Öf Court.
1 The principal cases concerning the legal constitution and powers
of the Inns of Court, and the extent of judicial control over them,
are Booreman's case, March Rep. 177; Townshend's case, cited 2
T. Raymond, 1028; Rakestraw v. Brewer, Abridg. Cases in Equity,
162; Hart's case (Rex v. Gray's Inn), 1 Douglas, 354; Lord Rosslyn'
v. Jodrell, 4 Campbell, 303; 1 Starkie Rep. 148; Wooler's case, 4
Barn. & Cress. 855; May v. Harvey, 13 East, 197. In Hart's case,
supra, the judges sustained the benchers of Gray's Inn in refusing to
call Mr. Hart to the bar, for the reason, among others, that he had
knowingly become security for money borrowed of others to a much
greater amount than he was able to answer.
O UAE ZA VV /AV / 7.S. O/LD HOMAE. 9I
The most important faculty which the Inns exer-
cise is the ea clusive power, as legal colleges," to con-
fer the degree of barrister-at-law or counsellor, which
is an indispensable qualification to practise in the
courts of common law. A barrister can be created in
no other way than by a call by one of the four Inns
of Court. He cannot be created by letters patent,
or be admitted as with us, by the authority of the
court. The Inns of Court being independent of
royal or executive power, no person called to the bar
is indebted for the station to any authority except
the governing body of the Inn of Court to which
he belongs. To this cause has been attributed, in
part, the spirit of independence, which, in the history
of constitutional liberty, has been so often displayed
by the Inns of Court, and which has at all times
characterized the members of the bar in asserting
legal rights committed to their advocacy or defence.”
“Rare Ben Jonson,” who, it is said, assisted his
stepfather, a brick-layer, in erecting, in the reign
of Elizabeth, a wall for Lincoln's Inn, dedicated a
1 Blackstone styles the Inns of Court “our Juridical University”
(1 Com. 25); and Lord Coke, in a passage before quoted, styles them
the “foure famous and renowned colleges or houses of Court,” which
“altogether doe make the most famous Universitie for the profession
of law, onely, that is in the world, and advanceth itself above all
others.” Ante Lecture II.
* “Intrepidity in the discharge of professional duty is so common
a quality at the English bar that it has, thank God, long ceased to be
a matter of boast or praise. If it had been otherwise, gentlemen, –
if the bar could have been silenced or overawed by power, — I may
presume to say that an English jury would not this day have been
met to administer justice. Perhaps I need scarce say that my defence
shall be fearless, in a place where fear never entered any heart but
that of a criminal.” Sir James Mackintosh's Speech in Defence of
Jean Peltier, for a libel on the First Consul of France, delivered in
the King's Bench, Feb. 21, 1803.
Lecture
III.
Exclusive
power to
call to the
bar.
92 LA WS AAWD 97/R/SPACUDENCE.
Tecture
III.
Requisites
of being
called to
the bar.
Inns swi
generis in
character.
play” “to the noblest nurseries of humanity and
liberty, the Inns of Court.”
A person who contemplates a call to the bar is
required to be admitted as a student, — that is, to
become a member of one of the four Inns, which
any person of respectable character and educational
attainments has no difficulty in doing; to dine in
the common hall of the Inn a few days in the course
of every term, that he may be seen and known, and
if unfit, the more readily detected before his final
application to be called to the bar; to keep in this
manner, ordinarily twelve terms, and in addition,
under more recent regulations before mentioned, to
attend the lectures of the readers or professors in
the Inn; and satisfactorily to pass a public exami-
nation for the purpose of ascertaining his fitness to
be called to the bar. Having complied with these
conditions, the student or member is eligible to
be called, and, unless some good reason appears,
is called to the bar.”
From this brief sketch it will be perceived that
the Inns of Court are sui generis in their character.
1 Every Man out of his Humour.
* The hospitality of the Inns in the matter of calls to the bar is
shown in the case of Mr. Benjamin. “On January 13, 1866, Benjamin
(Judah P.) was admitted a student of Lincoln’s Inn, and in Trinity
Term of the same year, after six months’ probation, was, by special
grace, called to the bar. He was made a Queen’s counsel of the
County Palatine of Lancaster, with a patent of precedence dating
from July 29, 1872, and afterwards full Queen’s counsel. In April,
1875, he was made a bencher of Lincoln's Inn.” “A Generation of
Judges,” London, 1888, article “Benjamin.”
That the reader may understand the preparation required and the
mode of being “called ” to the bar in the Inns, I reprint as a note (B)
at the end of this lecture extracts from Mr. Serjeant Robinson's
recent account thereof.
OUAE Z.A. W. ZAV / 7.S. O/L/D HOM/A2. 93
As to jurisdiction, powers, privileges, and rank,
all the four Inns stand on a footing of perfect
equality. Within them are collected the great body
of the profession of the law in England. The mem-
bership of the four Inns in 1873 was about eight
thousand, of whom six thousand were barristers and
the rest students." This legal community in all its
professional relations is governed by its own officers,
laws, and usages. The chambers are let to students
and barristers. The latter have their offices in them.
Unmarried members attended by servants frequently
live within them, and at their option take their meals
in the dining-hall of the Inn. Each Inn, as I have
said, has not only its chapel, but its kitchen; * not
1 Spilsbury, “History Lincoln's Inn,” ed. 1873, p. 18.
* “In all the Inns of Court and Chancery the important concern
of eating and drinking seems to have occupied the most attention;
instruction, such as it was (consisting of public readings or lectures,
and the mootings, or arguing of cases), was a secondary object.”
Herbert, “Inns of Court,” p. 223. - -
“Another apartment [of Lincoln's Inn] forming an essential
Lecture
III.
Governed
by their
own offi-
cers, laws,
and
usages.
appendage to all collegiate establishments, and without which even
the splendid Hall would be only suited for the imaginary feast of the
Barmecide, is the kitchen, -forty-five feet square and twenty feet
high ; and connected with the kitchen are cellars capable of holding
upwards of one hundred pipes of wine, and above these, butlers' pan-
tries,” etc. Spilsbury, “Lincoln's Inn,” p. 120.
“In term-time Mr. Pen showed a most praiseworthy regularity in
performing one part of the law student's course of duty, and eating
his dinners in the Hall. Indeed, that Hall of the Upper Temple is
a sight not uninteresting, and with the exception of some trifling
improvements and anachronisms which have been introduced into the
practice there, a man may sit down and fancy that he joins in a meal
of the seventeenth century. The bar have their messes, the students
their tables apart; the benchers sat on a high table on the raised
platform, surrounded by pictures of judges of the law and portraits
of royal personages who have honored its festivities with their pres-
ence and patronage.” Thackeray, “Pendennis,” chap. xxix.
94 LA WS AAWD # CVR/SPRUDEAVCE.
Lecture
III.
Character
and form
of the
English
law deter-
mined by
the bar.
only a large library," but an ample dining-hall and
drawing-room adorned with the busts and portraits
of its eminent members. Each member is thus
within the eye and in a degree under the fraternal
guardianship of all the others; and heretofore, how-
ever it may be under recent regulations, benchers,
barristers, and students have participated in the edu-
cational as well as the social life of the Inn.”
Thus much for the Inns of Court which are so
intimately and immemorially associated with the
social life, education, discipline, character, and
achievements of the English bar. It is indeed a
Quaint and curious picture; and if it is not also
a picture replete with interest and instruction, the
fault is surely mine. The English bar have made,
or at all events have determined, the character and
form of the English law. The English lawyer is
distinctively a specialist. From the earliest period
of the Inns his life and training tended to make him
such. Where and how he wrought, and what is the
character of the product of his professional studies
and labors, – this is the subject which I shall attempt
to portray when we meet again.
1 The number of volumes in 1881 in the library of the Inner
Temple was thirty thousand; of the Middle Temple twenty-eight
thousand; of Lincoln's Inn forty-three thousand; and of Gray’s Inn
thirteen thousand. Encyclopædia Britannica, 9th ed., art. “Inns of
Court; ” Loftie, “Inns of Court and Chancery” (Macmillan), 1893;
Douthwaite, “Gray’s Inn, History and Associations,” London, 1886.
2 Works mainly consulted in the foregoing sketch of the Inns of
Court : Blackstone Com., Introductory Lecture; Smith’s “History of
Education for the English Bar; ” Pearce, “Guide to Inns of Court,”
London, 1855; Spilsbury, “Lincoln's Inn and Library,” 2d ed., London,
1873; Herbert, “Antiquities of Inns of Court,” London, 1804; Ency-
clopædia Britannica, 9th ed., art. “Inns of Court,” by Mr. J. Claude
Webster, Barrister; Foss, “Judges of England; ” Pulling, “The Order
of the Coif,” London, 1884. See ante Lecture II., Note B, at end.
OUR LA W IM /ZS OLD HOME. 95
NOTE A,
THE LITERARY ASSOCIATIONS OF THE INNS OF COURT
REFERRED TO IN THE PRECEDING IECTURE.
Gower is said to have been a member of the Middle Temple.
“PHILIP SIDNEY was a member of Gray’s Inn.” Hutton,
“Literary Landmarks of London,” article Sidney.
“BEAUMONT was entered a member of the Inner Temple, Nov.
3, 1600.” Ib., v. Francis Beaumont. “Beaumont and Fletcher
wrote a masque entitled ‘The Masque of the Inner Temple and
Gray’s Inn,” which seems to have been performed alternately by
the two societies, the title being varied accordingly. In 1612
it was played at Whitehall before the court. ‘The Masque
of Flowers,” a seventeenth century pageant, was performed in
Note
A.
Literary
associa-
tions of
the Inns
of Court.
1613 at Gray’s Inn, and repeated in 1887 on the occasion of
the Queen's Jubilee ; ” and it was also repeated in the hall
of the Inner Temple. Loftie, “Inns of Court and Chancery ''
(Macmillan, 1893), pp. 48, 70.
“LORD BACON, as a member of Gray’s Inn, lived at No. 1
Coney Court, which was unfortunately burned down in 1678.
The site is occupied by the present [1868] row of buildings at
the west end of Gray’s Inn Square, adjoining the gardens in
which the great philosopher took such delight.” Jesse’s “Lon-
don,” vol. iii., “Gray’s Inn.” “He [Baconj is said to have
designed these gardens, and to have planted the old catalpa tree
still standing there in 1885.” Hutton, “Literary Landmarks
of London,” v. Francis Bacon. See ante Lecture II.
SELDEN (John), the learned legal antiquary and writer, had
lodgings in the Inner Temple, died in 1654, and was buried in
the Temple Church.
“FIELDING became a student of the Middle Temple in 1737,
and was called to the bar three years later, when ‘ chambers
were assigned to him in Pump Court.’” Hutton, “Literary
Landmarks of London,” v. Fielding. I do not know a more
charming autobiography than Gibbon’s. It is a striking proof
96 ZA WS AAWD 70A/SPRUDENCE.
Lecture
III.
Literary
3.SSOCI al-
tions of
the Inns
of Court.
of his genius that he could make so interesting the narrative of
a life so externally uneventful. His vanity and self-satisfac-
tion with his labors, so freely displayed, are fairly justified by
his success, and they give a real human interest in the story of
his life, which is interspersed with reflections and episodes most
felicitously expressed. Take, for example, his reference to “our
immortal Fielding, who was,” he says, “ of the younger branch
of the Earls of Denbigh, who drew their origin from the counts of
Habsburg. Far different have been the fortunes of the English
and German divisions of the house of Habsburg ; the former
have slowly risen to the dignity of a peerage; the latter, the
Emperors of Germany and Kings of Spain, have threatened the
liberty of the Old and invaded the treasures of the New World.
The successors of Charles the Fifth may disdain their brethren of
England; but the romance of Tom Jones, that exquisite picture
of human manners, will outlive the palace of the Escurial and
the imperial eagle of the house of Austria.” Thackeray, in
the “English Humourists,” quoting the above passage, adds:
“There can be no gainsaying the sentence of this great judge.
To have your name mentioned by Gibbon is like having it
written on the dome of St. Peter’s. Pilgrims from all the
world admire and behold it.” Quotation from “Pendennis,”
referring to Fielding, ante Lecture II., p. 40, note.
CowPER “had been entered at the Middle Temple (April 29,
1748) before he left school, and he took chambers there in 1752.
. . . On the 14th of June, 1754, Cowper was called to the
bar. . . . In 1756 he lost his father. . . . Three years after
his father’s death he removed from the Middle to the Inner
Temple, and purchased chambers there (they cost him £250),
in an airy situation.” Southey, “Works of Cowper,” London,
1835, vol. i. chap. ii.
Cowper, “after leaving Westminster School, went into soli-
- tary lodgings in the Middle Temple; but in 1754 or 1755
[Southey fixed a later date, 1759] he took chambers in the
Inner Temple, where for a number of years he devoted much
of his time to composition, and not a little of it to thoughts of
love, –for it was here that he met the first great sorrow of his
life, in the refusal of his family to permit his marriage with
his cousin, - and it was here that his mental derangement led
to his attempt at suicide.” Hutton, “Literary Landmarks of
O UAE Z.A. W. ZAV / TS OZ D HOME. 97
London,” v. William Cowper. It was in 1763 that he attempted
suicide by hanging himself in his chambers in the Temple.
Cowper's narrative thereof is given at large in Southey’s
“Cowper,” ubi supra, chap. v.
“Eventually he was removed to an asylum at St. Albans, and
recovered the use of his faculties; but he never returned to live
in London, and even the place of his residence in the Temple is
unknown.” Loftie, “Inns of Court and Chancery,” 1893, p. 29.
In a poem written years after the melancholy termination of
his residence in the Temple, he touchingly refers to that sad
event, and to the tenderness with which the Saviour’s com-
passion and love had healed his wounds: —
“I was a stricken deer that left the herd
Long since; with many an arrow deep infixt
My panting side was charged, when I withdrew
To seek a tranquil death in distant shades.
There was I found by One who had himself
Been hurt by the archers. In his side he bore,
And in his hands and feet, the cruel scars.
With gentle force soliciting the darts
He drew them forth, and heal’d, and bade me live.”
DR. JoHNSON. “I have this day moved my things, and you
are now to direct to me at Staple Inn [Holbornj, London. I
am going to publish a little story-book [“Rasselas’], which I
will send you when it is out.” Letter of Johnson to Miss
Porter, March 23, 1759, in Boswell’s “Johnson,” Birkbeck
Hill’s Ed., vol. i., pp. 340, 516, art. 50. “He retired to Gray’s
Inn, and soon removed to chambers on the Inner Temple Lane
[No. 1], where he lived in poverty, total idleness, and the
pride of literature.” Murphy, “Essay on Johnson.” He
remained at No. 1 for about five years from 1760. “Johnson’s
house in Inner Temple Lane has since been removed, giving
place to the more imposing, but less interesting, Johnson
Buildings, which stand upon its site.” Hutton, “Literary
Landmarks,” etc., v. Samuel Johnson.
Boswell. “In July, 1763, Boswell removed to ‘the bottom
of Inner Temple Lane, where Johnson was living, in order to
be nearer to the object of his devotion.’” Hutton, “Literary
Landmarks of London,” v. James Boswell. May 24, 1763,
Boswell gives a characteristic account of his first visit to
Note:
A.
Literary
associa-
tions of
the Inns
of Court.
7
98 ZA WS AAWD 702/SPRUDENCE.
Lecture
III.
Literary
associa-
tions of
the Inns
of Court.
Johnson’s Chambers at No. 1 Inner Temple. Boswell entered
his name at the Inner Temple with a view to be called to the
bar. He did not carry out this purpose then, but in 1775 he
again entered his name, and eleven years later was duly called.
Loftie, ubi supra, p. 30.
GOLDSMITH. “In 1764 Johnson found Goldsmith in a
humble set of chambers at No. 2 Garden Court, Middle
Temple, near the New Library and behind Fountain Court.
He then went to Gray’s Inn. The proceeds received for ‘The
Good-Natured Man gave Goldsmith a feeling of unlimited
wealth; and he took chambers, consisting of three rooms, on
the second floor of No. 2 Brick Court, Middle Temple.”
Hutton, “Literary Landmarks,” etc., v. Goldsmith. The
“Vicar ” was written in 2 Garden Court in 1764, “The Good-
Natured Man * brought him £500; whereupon he bought the
chambers, No. 2 Brick Court, Middle Temple, for £400, where
he remained until his death, in 1774, about nine years. “The
T)eserted Village * and “The Traveller '' were written in
2 Brick Court. Thackeray in his “English Humourists”
refers to his own residence in that house in 1855. Loftie,
“Inns of Court and Chancery,” 1893, pp. 42, 43.
Irving (“Life of Goldsmith,” chap. xxiii.) relates Gold-
smith’s extravagance in fitting up these chambers, and adds:
“He gave dinners to Johnson, Percy, Reynolds, Bickerstaff,
and other friends, and supper parties to young folks of both
sexes. . . . Blackstone, whose chambers were immediately below,
and who was studiously occupied on his ‘Commentaries,” used
to complain of the racket made by “his revelling neighbor.’”
Hutton, who quotes the above, adds: “In 1885 No. 2 Brick
Court was precisely as Goldsmith left it when carried to his
grave. The house, erected in 1704, and the little court are the
house and court he knew so well.” Hutton, “Literary Land-
marks,” etc., v. Goldsmith. “Goldsmith died, and was buried,
where the happiest and most peaceful years of his life had been
spent, in the Temple. His funeral took place at five in the
afternoon of the 9th of July, 1774, when his staircase on Brick
Court was crowded with mourners of all ranks and conditions
in life, conspicuous among them being the outcasts of both
sexes, who loved and wept for him because of the goodness he
had done. The exact position of Goldsmith's grave is not
O UAE Z.A. W. ZAV / 7.S. O/C/D HOME. 99
known. The plain monument with the simple inscription,
* Here Lies Oliver Goldsmith,’ was placed, in 1860, on the
north side of the Temple Church, as near as possible to the
spot where his remains are supposed to lie.” Ib.
Speaking of Goldsmith's life in No. 2 Brick Court, Middle
Temple, 1767, when Goldsmith was thirty-nine years of age,
Forster says: “Among his happiest hours were those passed at
his window, looking over into the Temple gardens. Steam and
smoke were not yet so all-prevailing but that, right opposite
where he looked, the stately stream which washes the garden
foot might be seen, as though freshly “weaned from her Twick-
enham Naiads,” flowing gently past. Nor had the benchers
thinned the trees in those days; for they were a race of bench-
ers loved of Charles Lamb, who refused to pass their treasurer’s
account twenty shillings to the gardener for stuff to poison the
sparrows.’ So there Goldsmith sat, with the noisy life of Fleet
Street shut out, and made music for himself out of the noise of
the old Temple rookery. . . . Let us leave him to this happi-
ness for a time, before we pass to the few short years of labor,
enjoyment, and sorrow in which his mortal existence closed.”
Forster’s “Goldsmith,’’ vol. ii., book iii., chap. xix.
“It was,” says Mr. Martin, “but a biscuit toss from Crown
Office Row [where Charles Lamb was bornj to No. 2 Brick Court,
Middle Temple, where Goldsmith died only ten months before
the birth of Lamb; and was buried somewhere in the burying-
ground of the Temple Church. Within it the benchers put up
a tablet to his memory. The inscription on that tablet may have
first been spelled out by Mary to her small and eager brother.
Doubtless the two children knew the exact spot of his grave, –
known exactly to none of us to-day, - as they knew every corner
and cranny of the Temple grounds and buildings.” Martin,
“Footprints of Charles Lamb,” 1890, pp. 13, 14. “No memo-
rial indicates the grave to the pilgrim or the stranger, nor is it
possible any longer to identify the spot in the burial-ground of
the Temple Church which received all that was mortal of this
delightful writer.” Forster, “Life of Goldsmith,” vol. ii., book
iv., chap. xxi. Forster, himself a member of the Inner Temple,
in 1852, accompanied by Sir Frederick Pollock, at that time
treasurer of the Temple, visited “the burial-ground of the Tem-
ple in the hope of identifying the grave, but did not succeed in
:
:
Not,
A.
Literary
associa-
tions of
the Inns
of Court.
IOO ZA WS AAWD jº/R/SPRUDEAVCE.
Lecture
III.
Literary
associa-
tions of
the Inns
of Court.
the object of our search. We examined unavailingly every spot
beneath which interment had taken place, and every stone and
sculpture on the ground.” Ib.
This record is to me inexpressibly sad. Early in life Gold-
smith had written “whatever vicissitudes we experience in life,
however we toil, or wheresoever we wander, our fatigued wishes
still recur to home for tranquillity; we long to die in the spot
which gave us birth.” “Citizen of the World,” letter ciii.
Alas! he had no home in the true sense of the word, and yet
we cannot doubt that the well-known lines closing with the
pathetic image of the hunted hare expressed his heart’s sin-
cerest desire: —
“In all my wand'rings round this world of care,
In all my griefs, – and God has given my share, —
I still had hopes, my latest hours to crown,
Amid these humble bowers to lay me down;
And, as a hare, whom hounds and horns pursue,
Pants to the place from whence at first she flew,
I still had hopes, my long vexations past,
Here to return, – and die at home at last.”
Too RE (John Horne) in 1756 was entered at the Middle
Temple. -
“SHERIDAN was entered a student at Middle Temple in
1772.” Hutton, “Literary Landmarks,” etc.
SouTHEY entered Gray’s Inn in 1797. Hutton, “Literary
Landmarks.”
MOORE (Thomas) entered his name as a student in the Mid-
dle Temple in 1799, but did not live, within it. Ford, the
dramatist, Wycherley, Shadwell, and Congreve had chambers
in the same Temple. Loftie, p. 49.
LAMB. Lamb commences his “Old Benchers of the Inner
Temple,” to a lawyer the most delightful of all his essays,
thus: “I was born, and passed the first seven years of my
life, in the [Inner] Temple.” He was educated at Christ's
Hospital, as everybody knows who has read his two essays on
that famous school. From his birth, in 1775, till 1795, Lamb
lived in Crown Office Row, Temple; then after residing else-
where till 1801, he again removed to the Temple. “And so,”
says Mr. Benjamin Ellis Martin in his late interesting volume
O OVA’ Z.A VV VAW / 7 S O/L/O HO//Z. IOI
(“The Footprints of Charles Lamb,” 1890, p. 55), “on Lady
Day, March 25, 1801, he and Mary moved into the Temple,
there to begin, near their childhood home, that life of ‘dual
loneliness,” never again broken in upon, — consoled by their
mutual affection, cheered by their common tastes, brightened
by the companionship of congenial beings. In the Temple
they remained for seventeen years, living in two sets of cham-
bers during that period,” — eight years at No. 16 Mitre Court
Buildings, and then on the third and fourth floors of No. 4 Inner
Temple Lane, looking back into Hare Court, with its pump and
trees, which trees came into the window. “Do you know it?”
wrote Lamb to Manning. “I was born near it, and used to
drink at that pump when I was a Rechabite of six years old.
Here I hope to set up my rest, and not quit till Mr. Powell, the
undertaker, gives me notice that I may have possession of my
last lodging.” The hope thus expressed was not realized. At
the end of the seventeen years he finally left the beloved Tem-
ple grounds, living chiefly at Enfield and Edmonton, and dying
in his home at the latter place in 1834, in his sixtieth year.
Thus, for more than half his life, his home was within the Tem-
ple Close. His Essay on the “Old Benchers ” appeared in
1821, after he had ceased to live in the Temple, and when he
looked back with fond recollections upon the scenes of his
earlier life. -
I cannot refrain from confessing to a kindly regard for the
memory of Samuel Salt, Esquire, barrister of the Inner Temple
and one of its benchers; and this springs not from anything that
he did in or for his profession, nor indeed from anything that
Lamb says concerning him in the “Old Benchers,” but solely
from the fact that he was the lifelong friend of Lamb’s parents,
and as long as he lived of Charles Lamb and his unfortunate
sister.
I extract the following concerning Lamb’s life in the Temple
and concerning his benefactor from Mr. Martin’s “The Foot-
prints of Charles Lamb,” 1890: ‘‘ ‘Cheerful Crown Office Row
(place of my kindly engendure)” — to use Lamb's own words
– “has been only partly rebuilt; and that end of the block
wherein lived his parents stands (A. D. 1890) almost in the
same state as when it was erected in 1737. . . . Under the
‘Chamber Book of the Inner Temple' I have hunted up its numer-
Not
A.
Literary
associa-
tions of
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of Court.
I O2 ZA WS AAWD 70RISPRUDENCE.
Lecture
III.
Literary
associa-
tions of
the Inns
of Court.
==
ous occupants. By this archive and by the books of accounts I
have been enabled to trace Samuel Salt from his first residence
within the Temple, in 1746, until he settled down in his last
chambers, wherein he died in February, 1793. The record
reads: a “parliament,’ — meaning one of the fixed meetings of
the benchers of the Inner Temple, – “13th May, 1768. At
this parliament: It is ordered that Samuel Salt, Esquire, a bar-
rister of this society, aged about fifty, be and is hereby admitted
for his own life to the benefit of an assignment of Ground Cham-
ber No. 2, Crown Office Row, he having paid for the purchase
thereof into the treasury of this society the sum of £150.’”
“So that it was in No. 2, — the numbers having remained
unchanged, - of Crown Office Row, in one of the rear rooms
of the ground-floor, which then looked out on the Inner Temple
Lane, some of which rooms have been swept away since, and
others have been slightly altered, that Charles Lamb was born,
on the 10th February, 1775. For Samuel Salt, Esquire — one
of ‘The Old Benchers of the Inner Temple,” whose pensive gen-
tility is portrayed in Elia's Essay of that title — had in his
employ as ‘ his clerk, his good servant, his dresser, his friend,
his “flapper,” his guide, stop-watch, auditor, treasurer,’ one
John Lamb [father of Charles], who formed, with his wife and
children, the greater part of the household ‘of Samuelt Salt,
Esquire.' . . . To John Lamb and to his children Salt was a
lifelong benefactor, and never until death had made an end to
the good man’s good deeds did there fall on the family any
shadow of change or penury.”
“HALLAM was a bencher of the Middle Temple.” Hutton,
w. Hallam.
“MACAULAy, between 1829 and 1834, occupied chambers at
No. 8 South Square, Gray’s Inn, in a building that has since
been torn down to make way for the extension of the library.”
Hutton, v. Macaulay.
THACKERAY “loved the Temple and lived for some time, or,
to speak more strictly, occupied chambers which have now dis-
appeared, at 10 Crown Office Row. He had been called to the
bar in 1834, and he shared his apartments with Tom Taylor.
He often speaks of the Temple, in which the scene of so much
of ‘Pendennis' is to be found.” Loftie, p. 27.
DICKENS was not of the Inns, but some of the most delightful
OUR LA W IM /TS O/ID HOME. IO3
gº-
scenes in “Martin Chuzzlewit ’’ are laid in Fountain Court,
Middle Temple; and who does not recall Serjeant Buzfuz 2
With the reflections so well expressed by Mr. Loftie in con-
cluding his account of the “Inns of Court and Chancery,” I
may fitly conclude these scattered notes concerning their literary
associations. “The proud Templars actually did march through
the courts still called after them, and were actually buried in
the church. Here, too, we think of Johnson and Goldsmith, of
Cowper and Lamb, of Thackeray and Dickens, as well as of the
eminent lawyers who were nourished in these old walls. The
Middle Temple contains in its hall almost the only tangible
relic of Shakespeare that exists in London. Some see a similar
association in the hall of Gray’s Inn, but there Bacon is the
most commanding figure. I never pass Lincoln's Inn gate
tower without remembering that it was new when Sir Thomas
More walked through it as chancellor. Memories of this kind
crowd on us among the Inns of Court and Chancery.”
NOTE B.
STUDENTSHIP IN THE INNS OF COURT, AND MODE OF BEING
CALLED TO THE BAR, REFERRED TO IN THE PRECEDING
LECTURE.
Mr. Serjeant Robinson, in his book, “Bench and Bar,” be-
fore mentioned (ante Lecture II., Note B), describes in a clear
and interesting manner the preparation for and the mode of
being called to the bar sixty years ago, and adds that “the
mode of proceeding is much the same now (1889) as it was
formerly.”
“It may not be uninteresting to the general reader to gain an
insight into the process by which certain of the liege subjects
of Her Majesty acquire the right to disguise themselves in the
costume of the wig and gown. I entered as a student at the
Middle Temple in April, 1833, A. D. There are four distinct
establishments that have the exclusive privilege of granting
the degree. A candidate must attach himself to one of them,
Not
A.
Note
B.
Mode of
call to
the bar.
IO4 A WS AAWD jº/R/SPA’UDAEAVCAE.
Lecture
III.
Student-
ship in the
Inns of
Court.
*-
although it is quite immaterial by which of the four portals he
seeks to enter the profession. These Inns of Court, as they are
called, are Lincoln's Inn, the Inner Temple, the Middle Tem-
ple, and Gray’s Inn. There are several other establishments
called Inns, such as Clement’s Inn, Staple Inn, Clifford’s Inn,
New Inn, Barnard’s Inn, etc.; but they are not Inns of Court,
and have nothing to do with the bar, except that some of them
are dependencies of the four superior ones, whilst others, origi-
nally in the same predicament, have now a totally separate
existence. [But see ante Lecture II.]
“They form for the most part communities of attorneys, and
have accumulated considerable wealth. In these confiscatory
times, some of them have thought it expedient to subject them-
selves to deliberate suicide, lest a worst fate might befall them.
Like the French Huguenots of old, they have thought it better
to break up their ancient houses and homes, and disperse, each
with his share of what was for centuries recognized as a joint
title and assured possession, rather than live in constant fear of
an arbitrary statute that might doom them to forfeiture and
annihilation. [See ante Lecture II. as to the sale of Serjeants’
Inn.]
“Any one wishing to become a student at an Inn of Court had
to furnish himself with a certificate of respectability signed by
two barristers, who vouched for his eligibility in that respect.
He had then to go through the formality of what was technically
called an examination, the crucial part of which occupied about
a minute and a half. One or two questions in Latin or in gen-
eral literature were put to him, in the perfunctory style in which
one asks a passing acquaintance after his health, being quite
indifferent as to what answer he might give. The pursuit of
knowledge by the examiner as to a youth’s proficiency was not
very ardent in those days, and the most superficial candidate for
the honors of admission might have come off with great credit to
himself. I believe the examination now is just a trifle nearer
the real thing, but I never yet heard of any man being plucked
in this preliminary ‘little go.” If I had, I should expect the
next intelligence I got of him would date from an idiot asylum.
[But see ante, pp. 82, 83, as to present educational requirements
of persons applying for admission to the Inns as students.]
“The next important step was the payment of one hundred
O OVR LA W //V / 7.S. OZZO HOME. IO5
pounds into the treasury of your selected Inn, while you entered
into a stringent bond with two sureties that you would obey the
rules and regulations of the establishment, attend church (in
my case the Temple) every Sunday with strict regularity, and pay
up your commons and other dues whenever they were demanded.
As to the third of these stipulations, the sureties were mere sub-
stitutions, – if you did not pay your debts they would pay for
you; but it was never understood that they could observe the
rules of the Inn for you, or even that they could go to church
for you when you were profligate enough to stay away.
“These preliminaries satisfactorily got through, no future
penance was required to qualify you for a call to the bar except
a certain display of assiduity in eating and drinking, and it was
prescribed in this wise: It was necessary that you should keep
twelve terms; and as there were four terms in the year, this
stage lasted three years. . A term was of three or four weeks'
duration, and in the middle of each there was what was called a
grand week, and the remainder was divided into periods called
half-weeks. Now, keeping a term meant that you had dined in
the hall at least once in grand week, and also once in each of
two half-weeks. To partake of three dinners was de rigueur,
but they need not be in consecutive terms. You might take
your time about them, spread them over ten years if you liked;
but to render yourself eligible for a call you must have com-
pleted your tally of twelve. Keeping a term then was not so
harrowing a curriculum as many are found to be in these educa-
tional times.
“The dinners took place every day in term time, Sundays
included. Each day at five o’clock the benchers in their gowns
walked in procession up the hall and took their seats on the
dais, where their dinners were served. One long row of tables,
each accommodating twelve persons, ran down the sides of the
hall. The bar was seated at the upper end according to senior-
ity, and below them sat the students. I may mention here that
by an old custom, still kept up at the Middle Temple, a porter
goes round the different courts and avenues, half an hour before
dinner, blowing a bullock’s horn to remind all whom it may
concern that dinner-time is at hand.
“The bar and the students were parcelled off into messes of
four men each, every one being treated to the same bill of fare.
Not
B.
Keeping
terms.
IO6 ZA WS AAWD 50R/SPAUDEAVCE.
Lecture
III.
Tuition.
Ceremony
of being
called to
the bar.
Menus were, therefore, quite unnecessary, even had they been
in ordinary use. We had a bottle of wine (invariably port) to
each mess, soup, a sirloin of beef, a fruit tart, cheese and bread,
with an unlimited supply of small beer, — certainly the best of
the three classes of that beverage, which are described as strong
table, weak table, and lamen-table. After dinner, which lasted
about an hour, the benchers marched out as they had marched in,
and retired to what was called the parliament chamber, to finish
their repast with wine and dessert, whilst we were left to our
own devices. (Chap. ii.)
“Having achieved a right to studentship, the next thing to
do was to look out for a pedagogue, under whose tuition I might
become initiated into the science and subtle mysteries of the
law, of which I was then as profoundly ignorant as an Ojibewa
Indian. This was usually accomplished by paying one hundred
guineas a year, for as many years as were considered expedient
or convenient, to a barrister or special pleader, for the privilege
of what was called having the run of his chambers. (Chap. iii.,
p. 24.) sº
“In Easter Term, 1840, I was called to the bar. As a
preparative for investiture, the aspirant, who has sufficiently
dined, must get himself proposed by one bencher and sec-
onded by another in the parliament chamber, where the official
business of the Inn is conducted; and if his character is unim-
peached, the fiat for his call goes forth. But no one could claim
to be called as a matter of right. The benchers might reject the
candidate’s application, if they pleased, but always subject to an
appeal to the body of judges as visitors of the Inn; and their
decision was final. (Chap. iv., p. 30.)
“The actual ceremony of being called was very short and sim-
ple. On the appointed day, while the benchers and bar were in
the hall prepared to sit down to dinner, I, happening to be the
senior of nineteen infatuated beings, habited for the first time
in the full panoply of gown, wig, and bands, and each brimful
of hope and speedy distinction, walked up the hall and stood in
a row before our venerable superiors. We then took a short
oath that we would do our duty to the Inn, to the public, and to
our clients, – should we ever have any, - and the formal busi-
ness was at an end. We sat down to our repast as usual, and,
as soon as the benchers had returned from the bench table, pri-
OUR Z.A. W. ZAV / 7.S. O/C/D HO/l/A2. Io?
vate friends were allowed to flock in and partake of wine and
dessert at the table assigned their particular host; and the
revels were generally kept up to a late hour. Next day, with
light hearts, but many of us with aching heads, after the severe
trials of the night before, we had to take divers oaths before a
judge in the Bail Court, containing allusions not very compli-
mentary to the Pope, or the Pretender, whoever that might be.”
(Chap. iv., p. 32.)
Not
B.
LECTURE IV.
WESTMINSTER HALL; ITs HISTORY AND THE CHARACTERIS-
TICS OF THE SYSTEM OF LAw DEVELOPED AND PERFECTED
THEREIN; AND HEREIN OF JUDICIAL TENURE AND COM-
PENSATION, TRIAL BY JURy, AND JUDICIAL PRECEDENT.
Lºre WESTMNSTER HALL (that is, the original
† building) had been built by William Rufus
Yº... (A. D. 1087–1100) more than a century before the
... clause in Magna Charta, heretofore considered,
ciations, required the Court of Common Pleas to be held
“in some certain place.” It was originally built
as an annex to the King's palace of Westminster,
and its earlier uses, as I shall presently show, were
for royal ceremonies and festivities. After Magna
Charta (and probably in consequence of it) it is cer-
tain that Westminster Hall became the seat of the
great judicial courts, including, for a long period and
until our own day, the Court of Chancery, after its
establishment as a distinct jurisdiction. It has never
ceased to be used as the place where the ceremo-
nials of the coronation of the English monarchs are
solemnized with the accustomed splendor, and as the
place for the trial of peers and of official personages
charged with great crimes and misdemeanors. But
1 See ante Lecture II.
O UAE Z.A. W. ZAV / 7.S. O/C/D AſOMAE. IOO
its most distinctive character has been acquired by
reason of its having been for centuries the seat of the
great courts of justice of the realm. Hawthorne,
visiting England in 1855, thus records in his “Eng-
lish Note-Books” his impressions of it. “We entered
“Westminster Hall. . . . After the elaborate orna-
“ment of the rooms we had just been viewing, this
“venerable hall looks extremely simple and bare.
“. . . But it is a noble space, and all without the
“support of a single pillar. . . . I love it for its
“simplicity and antique nakedness, and deem it
“worthy to have been the haunt and home of
“History through the six centuries since it was
“built. . . . The whole world cannot show another
“hall such as this, so tapestried with recollections
“of whatever is most striking in human annals.”
Among the most finished pieces of word-painting
in the language is Macaulay's well-known reference
to the main hall as the place for the trial of the
impeachment of Warren Hastings. You recall his
words: “The place,” he says, “was worthy of such a
“trial. It was the great hall of William Rufus; the
“hall which had resounded with acclamations at the
“inauguration of thirty kings; the hall which had
“witnessed the just sentence of Bacon and the just
“absolution of Somers; the hall where the eloquence
“of Strafford had for a moment awed and melted a
“victorious party inflamed with just resentment; the
“hall where Charles had confronted the high court
“of justice with the placid courage which has half
“redeemed his fame.” The great essayist by his
love for dramatic effect and by his immediate sub-
ject, — which was the trial of the extraordinary man
Tlecture
I
Haw-
thorne's
impres-
sions.
Macau-
lay's de-
Scription.
I IO ZA WS AAWD jº/R/SPRUDEAVCE.
Lecture
The chief
glory of
the place.
The Hall
of William
Rufus.
to whose valor and genius Britain’s monarch owes
to-day her title of “Empress of India" and her rule
over the 240,000,000 of her Indian subjects," — over-
looked the less striking but after all the chief glory
of the place as the external or visible source whence
English justice for more than six centuries has gone
forth in its silent but exhaustless flow to the “busi-
ness and bosoms” of men throughout the entire
realm, and whose principles are the rich inheritance
of all English-speaking people in every part of the
globe. When Westminster Hall is mentioned, the
world thinks of it, and above all the lawyer thinks
of it, as the seat of the judicial courts and the foun-
tainhead of English justice. Its permanent glory
is derived, not from coronation ceremonies or the
imposing spectacle of an occasional state trial, but
from its being immemorially associated with the his-
tory and development of the English law, with the
renown of great judges, with the fame of learned
lawyers and eloquent advocates. The history and
associations of a building so illustrious, one which
has given its name to the distinctive system of law
which for ages has been administered in it, may
fitly occupy a few moments of the time of those who
are engaged in studying that system, since this will
serve as an introduction to a view of the nature and
characteristics of the system itself.
Macaulay's statement that Westminster Hall,
where Hastings was tried, “was the great hall of
William Rufus,” if taken literally, is incorrect.
Lord Campbell fell into the same mistake when
he said that “William Rufus built the magnificent
1 Ante Lecture I., p. 26.
OUA’ Z.A VV ZAV / 7.S. O/L/O HOA/A2. III
“hall which is looked upon with such veneration by Lºre
“English lawyers, and which is the scene of so many *
“venerable events in English history. This being
“completed at Whitsuntide, 1099, the Chief-Justiciar,
“Flambard, sat here in the following Trinity Term ;
“and the Superior Courts of Justice have been held
“in it for seven hundred and fifty years.” The pre-
cise facts are these : The first great hall was indeed
built by William Rufus, and was completed in 1099,
when that monarch held therein his court — prob-
ably the Curia Regis — for the first time; so that
it is now nearly eight centuries since “that sacred
“ spot [not the existing building] was first applied
“to legal uses.”
The original hall of William Rufus had to be
renovated, if not rebuilt, within a hundred years.
As a result of floods, fire, and time, it was neces-
sary again to renovate or rebuild the hall in the Rebuild.
time of Edward III.; another fire intervened in *
1386 in the time of Richard II. ; and in the work
of restoration the edifice was altered, enlarged,
strengthened, and beautified. In this re-edification
and improvement it is considered not improbable
that there was brought into requisition the taste
if not the active superintendence of William of
Wykeham,”— of William of Wykeham, the Mag-
nificent; for such may justly be called the accom- The exist.
plished minister and Chancellor of Edward III. *
and Richard II. The hall as it now exists, “in its “ .
“perpendicular Gothic style, its stately roofs, its
1 Campbell, “Lives of the Chief Justices,” vol. i., chap. i.
2 Foss, “Judges of England,” vol. i., William Rufus.
* Foss, iv., p. 20.
II 2 ZA WS AAWD 90/º/SPRUDEAVCE.
Lecture
IV.
Devoted
mainly to
legal uses
“hammer-headed beams and angels' heads,” was
finished under Richard II. in 1399."
From that date it was devoted mainly to legal
uses. It is reasonably clear that it has been thus
used from the time of Henry III., when the Curia
Regis, more than six hundred years ago, came to
an end, and its powers were distributed into the
several benches of Westminster Hall. And it is
probable that it was thus used from a period soon
after Magna Charta. The spot, therefore, has been
consecrated to judicial uses for nearly eight cen-
turies, and the present building was continuously
the seat of the great courts of justice for nearly five
hundred years, until their recent removal to the new
Law Courts Building, known as the Royal Courts
of Justice.”
since 1399.
1 “To the ill-fated Richard II.,” says Jesse (reprinted in “Mem-
ories of Westminster Hall,” vol. i., chap. ii.), “we are indebted for the
magnificent old hall as it now stands. Under his auspices, it was
greatly strengthened and beautified, the present matchless roof hav-
ing been added, and the exterior coated with thick walls of stone. At
its completion, in 1398 [1399], it must have presented nearly the same
appearance which it wears at the present day. As an apartment, it is
said to be the largest in Europe, and its massive timber roof is per-
haps the finest specimen of similar scientific construction in the
world.” “The actual history of Westminster Hall,” says Serjeant
Pulling, who has made a careful study of it, “shows it to have been
originally designed not for a hall of justice, but for a banqueting hall;
that it was so used for ages after it was first erected in the time of
William Rufus ; that Rufus's building was destroyed and an entirely
new hall built before the Courts of Law were fixed there, and that
the existing Westminster Hall dates back, not to the days of William
Rufus, but to Richard II.” Pulling, “The Order of the Coif,” Lon-
don, 1884, p. 79.
* The erection of the new building and the removal thither of the
great courts of the kingdom is so notable an event in the judicial his-
tory of England that I have subjoined an account of the erection and
character of the building, and of the ceremonies attending its inau-
guration, in a note (A) at the end of this lecture.
OUR /A W //V / TS O/CD AſOMAE. II 3
But all things change, even in England. In the
course of time the location of the courts in West-
minster Hall, while the Chancery Courts were held
near the Inns of Court, became inconvenient, and the
rooms in which all of these courts were held insuf.
ficient in size and uncomfortable. This occasioned
a movement, sanctioned by Parliament in 1865, to
concentrate all of the courts and to provide a new
building for their accommodation, resulting in the
completion in 1882 of the Royal Courts of Justice
Building in the vicinity of the Inns of Court. This
vast and imposing pile was inaugurated by the Queen
with impressive ceremonies, December 4, 1882; the
Common Law Courts were thereupon removed from
Westminster Hall, and the Chancery Courts from
Chancery Lane, and courts were on January 11,
1883, regularly opened in their new home. But
Westminster Hall, notwithstanding such removal,
will remain in the lawyer's memory as the Mecca
of English law and justice. Its antiquity, the great
events of which it has been the theatre, above all the
objects to which for so many ages it has been de-
voted, and the splendid and enduring results which
have been attained in the establishment and develop-
ment of the system of English law and English legal
institutions, combine to make it to all men one of the
most interesting of monuments, and to the lawyer a
monument absolutely unique, which he may be par-
doned for regarding with affectionate veneration.
The Lord Chief-Justice, on taking his seat for the
first time in the new building, in a short address to
the bar and the public most appropriately remarked
“that though they had left Westminster Hall, he
Lecture
IV.
The new
Law
Courts
Building.
Removal
thither of
the great
judicial
Courts.
8
II.4. A WS AAWD 3'OR/SPACODAEAVCE.
Lecture
IV.
Wherein
the real
interest in
Westmin-
ster Hall
consists.
“trusted they had not left behind them the tradi-
“tions of that great and illustrious building, and that
“they would follow them in this their new habitation;
“and especially he hoped that the unbroken tradition
“ — unbroken since he had known it — of mutual
“dependence and harmony between bench and bar
“would continue unbroken, – relations without
“which the bar might probably, and the bench cer-
“tainly would, find it impossible to discharge their
“most important functions.” And thus the new Law
Courts Building, as the successor for judicial pur-
poses of Westminster Hall, began its history. If,
like Westminster Hall, it shall stand for centuries
as the seat of English justice, it will surely witness
great events, and important, though I hardly think
structural or revolutionary, changes in the system of
English law. It will in its turn become illustrious
with a history of its own; but the old name of West-
minster Hall, more enduring than the hall itself, will
still be associated in the professional mind with that
distinctive system of law and jurisprudence which
furnishes the rule of conduct to the many millions
of people on both hemispheres who have adopted
the institutions of England, and “who speak the
“ tongue that Shakespeare spake ; the faith and
“morals hold which Milton held.”"
To me, and I think to lawyers generally, the
real, the deepest interest in Westminster Hall,
rich as it is in historic associations, is not so
much in the building itself as it is in the sys-
tem of law which, during so many centuries, has
been therein fashioned and gradually advanced
1 Wordsworth, Sonnet, “English Freedom.”
O OVA’ CA VV /AV / / Sº O/L/O HO/l/A2. II 5
toward its present perfection by the combined learn-
ing, experience, and labors of so many generations
of the lawyers and judges of England. I do not hesi-
tate to say that the system of law taught in the Inns
of Court, and which has been developed, applied,
and enforced in Westminster Hall and the Courts of
Chancery, comprehensively known as the system
of English jurisprudence, while having, it must be
confessed, some grave defects, is upon the whole,
as exemplified in the judicial history of England
since 1688, and of its colonies and of the United
States, the best system of practical justice, adapted
to the needs of the peoples whose conduct it regu-
lates, which the world has ever seen, – the Civil
or Roman law not excepted. Except the peculiar
American doctrine of written constitutional limita-
tions on legislative power, our system of laws is, in
its seminal principles, in its main features and sub-
stance, but a prolongation of the English system,
modified to suit our changed conditions.
Speaking generally, the chief excellences of the
English system are that the rule of law, the rule of
equal law, the same rule applicable to all alike, per-
vades and permeates every part of English institu-
tions and polity, and that such rule is applied in the
great courts of law by judges having an independent
and stable tenure of office; and next to this, the two
most striking characteristics of the system are the
trial by jury, and the doctrine of the authority of
adjudged cases as precedents. Upon each of these
subjects I venture to submit some observations for
your thoughtful consideration now and hereafter.
Lecture
IV.
The chief
excellences
of English
law.
II6 A WS AAWD jº/RISPRUDEAVCE.
The distinguishing feature of English law — that
which makes it unique, which constitutes its crown-
ing glory, which raises it high up over every other
existing or competing system — is that, under Eng-
lish institutions and polity, law, the rule and reign
of law, of equal law, is everywhere predominant
and supreme. In a subsequent lecture I shall recur
to this point, and endeavor to bring out in sharp
relief, with the requisite details and illustrations,
this noblest characteristic of English law." It must
suffice at this time to say that under that law arbi-
trary power is unknown; that all men under its
sway are governed by and are responsible to the
law, and to the law alone; that no man is punish-
able or can be punished except for a violation of
law, - a violation established by public proofs in
open court; that the irresponsible power which is
recognized by the Continental systems and enforced
in administrative or other special tribunals has no
existence in the English law, where but one rule —
one equal rule — applies everywhere and always to
all persons alike, official and non-official; and what
is fully as important is that this rule of equality
before the law is administered and enforced in and
by and through the great law courts, and not, as
on the Continent, by any mere administrative or
exceptional tribunals.”
Lecture
IV.
Its rule
of legal
equality.
1 Post Lecture VIII.
2 English liberty, as it is described in the text, has constitutionally
existed since Magna Charta; but it has not been at all times actually
and securely enjoyed by the subject in its full measure except since
the Revolution of 1688. Fortescue, who wrote A. D. 1461–1470 (see
ante Lecture II.), compares the legal rights of Englishmen in his day
with those of the people of France, and the outlines of the picture, as
O UVA’ ZA VV //V /TS O/L/D HO/A2. II 7
It is well known that in England by virtue of
various acts of Parliament, and in this country
by legislative enactment, a great variety of petty
offences, mostly of a police character, may be prose-
he drew it more than four hundred years ago, still remain true, with
this difference that what was then theory is now fact as well. “Eng-
lishmen,” he says, “are not sued at law, but before the Ordinary judge,
where they are treated with mercy and justice, according to the laws
of the land; neither are they impleaded in point of property, or
arraigned for any capital crime, how heinous soever, but before the
King’s judges, and according to the laws of the land.” “De Laudibus,”
Amos's Ed., chap. xxxvi., p. 137; and see Mr. Amos's excellent and
learned notes; also his Note B to chap. viii. Since Magna Charta, these
have been among the fundamental rights of Englishmen. Prior to 1688,
however, these rights were sometimes flagrantly denied or violated;
but they were never permanently overthrown or destroyed. In times
of high prerogative, these rights were often nipped at the top, but
they died not at the roots. Bacon praised the Star. Chamber Court as
“one of the sagest and noblest institutions in this kingdom.” And
among its merits he declares, borrowing his language from the Civil
law, that this court “discerneth principally of four kinds of causes,
forces, frauds, crimes various of stellionate, and the inchoations or
middle acts towards crimes capital or heinous, not actually committed
or perpetrated.” Bacon, “History of King Henry VII.,” Am. Edition
of Montagu's Works of Bacon, vol. i., p. 333. In summing up his
view of the reign of Henry VII., Bacon (Ib., pp. 381, 382) says: “He
did much to maintain and countenance the laws, which nevertheless
was no impediment to him to work his will; for it was so handled
that neither prerogative nor profit went to diminution. . . . Jus-
tice was well administered in his time, save when the King was a
party; Save also that the Council-table intermeddled too much with
‘meum ' and ‘tuum.’” Very large and important exceptions, it
must be admitted. Entertaining such notions as Bacon did concern-
ing the Star Chamber and the prerogative, we need not be surprised
at his attempt by means of the old writ, De non procedendo Rege incon-
sulto, to prevent the courts or judges from adjudging causes in which
the interests of the Crown were concerned. Had Bacon succeeded,
administrative law in the Continental sense would, as Professor Dicey
well observes, have been established in England. Dicey, “Law of
the Constitution,” 2d ed., London, 1886, lectures v., iv.; see post Lec-
ture VIII. That the full and secure enjoyment of the constitutional
guarantees of English liberty belong, however, to the later periods of
Lecture
IV.
I 18 LA WS AAWD 70A/SPA’UDENCE.
Lecture
IV.
Summary
procedure
for petty
offences.
*
cuted by summary proceedings before justices of
the peace and inferior municipal officers, without the
intervention of a grand or petit jury. M. Boutmy
has sharply criticised the extent of the powers of
the local magistracy in England in this respect, and
the manner in which their powers are exercised. He
admits that, “with regard to such civil and criminal
“ proceedings as come before the Superior Courts,
“England has been for a long period in advance of
“all other European nations; ” but he contends
that, “with regard to administrative matters and
“minor offences, a single phrase describes accurately
“ the powers of the county magistracy, — ‘absolut-
“ism shielded by impunity.’” There may be some
ground for the criticism in England; but even there
his picture is perhaps overcolored, since the powers
of the magistrates are conferred, limited, and regu-
lated by acts of Parliament.” I am familiar with
English history, is nowhere more strikingly shown than by refer-
ring to the solemn representations and request of the judges of both
benches and of the Exchequer, in June, 1591, addressed to Lord Chan-
cellor Hatton and Lord Treasurer Burghley, that measures be taken
to the end that Her Majesty’s subjects “maie, not be committed or
deteyned in Preson by commaundemente of any noble man or Coun-
sellor against the lawes of the Realme.” Sir Henry Ellis reprints
“this very curious and honest document levelled at some arbitrary
proceedings of the Privy Council.” Ellis, “Original Letters Illustra-
tive of English History, 3d Series,” Letter 433, p. 87. I should insert
it here if space there were. Such specific and realistic examples show,
as it seems to me, more forcibly than any general statement can do,
the immense progress which has since been made in the security
and enjoyment of individual liberty and rights.
1 Emile Boutmy, “The English Constitution,” Eaden's transla-
tion, London, 1891, p. 167.
* Stephen, “History of the Criminal Law of England,” London,
1883, vol. i., chap. iv., pp. 122–126, under the head of “Courts of a
Summary Jurisdiction.”
O UVR Z.A. W. WAV / 7 S O/C/D AEMOMAE. I IQ
the matter in this country, and I have considered it
fully elsewhere.' I content myself with saying in
this place that the power of summary procedure
within the limits to which it is confined by our con-
stitutions and the decisions of the courts is not, as
I think, incompatible with the essential rights and
liberties of the citizen, and does not detract from
the praise — for its freedom from arbitrary power
— to which I have said the system of English
law is justly entitled.
The deserved confidence which the whole world
feels in the justice which is distributed by the Eng-
lish courts is almost wholly due to the character of
the English judges. They are selected from the
most eminent of the profession. They hold their
office during good behavior. Ample salaries enable
them to give without distraction or anxiety their
time and energies to the duties of their high place.
A stable and permanent tenure secures that inde-
pendence, both of popular and royal power, which
is essential to a good judicial system and to the
fearless administration of justice.”
Let me here, as I pass along, inculcate and enforce
a great lesson. It is not too much to say that a
stable and independent judiciary is the strongest
hope of our own country.” That was the system
our fathers gave us, and it is the one that still
obtains in the selection of Federal judges, and
1 Dillon, “Commentaries on the Law of Municipal Corporations,”
4th ed., vol. i., §§ 432–439, and the cases cited.
* See ante Lecture I.
& See post Lecture VII.
Lecture
IV.
Character
of English
judges;
tenure and
compensa-
tion.
I2O M.A WS AAWD 5°C/R/SPRUDENCE.
Lecture
IV.
American
departure.
Trial by
jury.
of State judges in seven or eight of the States.
But forgetting the nature of judicial power, we
have unfortunately discarded this vital principle
in the other States of the Union. The best in-
terests of the country are concerned in retrieving
this mistake. The mode of selection is not so
important perhaps as the tenure and compensa-
tion; the one should be during good behavior,
and the other adequate and beyond legislative
diminution. It is with pleasure that I see in the
comparatively recent action of several of the States
the first steps of a return, in the lengthened term
and more ample salaries, to the principles which the
founders of our government borrowed from England
and embodied in the Federal and early State con-
stitutions. I shall only add that whenever we depart
from these sound notions, whenever we weaken the
independence or degrade the dignity of the judicial
office, either by the mode of selection, or by a
restricted tenure, or by the inadequate compensa-
tion of the judges, or in any other way, we
make a most serious mistake."
I am not able to state how the trial by jury is
regarded in its practical workings at the present
1 “Everything which compromises or lessens the independence of
the judicial power compromises the good administration of justice.
The judiciary should be the organ of the law, and not an instrument
of government [or party]; it renders judgments not services.” M.
Glasson, “Elements du Droit Français,” p. 212; 11 Am. Law Rev.,
677. Mr. Merrill (11 Am. Law Rev., 677) says, “It is difficult to
know whether, in popular estimation, the judges are always, in point
of fact, entirely independent of the executive.” M. Glasson pays a
high compliment to the “traditional integrity, great enlightenment,
and the gravity of morals” of the French judges.
OC/A2 / A VV //V /7'S OLD AIOM/A2. I2 I
time by the lawyers, the judges, and the public, in
England, or whether it there maintains its ancient
popularity. Probably it does; for there judges of
ability and experience preside in the courts and
have not been shorn of their power so to control
the course of trials as to prevent unjust verdicts or
the miscarriage of justice." But in this country, I
think it is not too much to say that its favor in civil
causes has much declined. Many of our best law-
yers, of the largest experience, in their lighter moods
openly ridicule it, and in their more serious moods
openly denounce it. This state of opinion is deeply
to be regretted; for no institution can long survive
its usefulness, or flourish, when it ceases to cling
about the popular heart and to draw life from the
popular favor.” I have given some thought and
reflection to this subject, but have only time, on the
present occasion, to state shortly the conclusions
reached : —
I. I consider the trial by jury an essential part
of our judicial system. It is a cherished tradition.
It is more. Its roots strike down deep into the
experience, the life, and the nature of the people
who have developed and perfected it.” It gives an
individuality to our legal system. It is a vital part
* A vigorous defence of the trial by jury in England is made by
Mr. Best, 1859, published in vol. ii., “Juridical Society Papers,” p. 183.
* “No political institution can endure which does not rivet itself
to the hearts of men by ancient prejudice or acknowledged interest.”
Hallam, “Middle Ages,” vol. i., chap. ii., part ii.
* The historical development of the jury, from its germ in certain .
practices in public administration adopted by the Normans from the
Frankish law, and by the Normans carried into England at the Con-
quest, through its various enlargements, changes, and transmutations,
until it finally shaped itself into the institution of the jury as it now
Tuecture
IV.
An essen-
tial part of
our judi-
cial sys-
tem.
I 22 M.A WS AAWD 707/8/SPAC/DEAVCE.
Lecture
IV.
Mr. Jus-
tice Mil-
ler's views
of the jury
System.
of it. Its shortcomings are not inherent. If judges
will do their full duty, jurors will do theirs. I have
tried literally thousands of cases with juries, and
the instances are few where I had reason to be dis-
satisfied with their verdicts.
I recall with interest the views of the late Mr.
Justice Miller and the change of opinion on his part
on the subject of trial by jury. His opinions are
of value, for by general consent he ranks among
the ablest judges who have ever held a seat on
the bench in this or in any country. He said
to me at one time that his notion of an ideal trial
court was a court composed of three judges to
try all civil issues of law or fact. Some years
afterwards, as the result of more observation and
experience, he told me he had changed his views,
and that he thought juries better judges of fact than
exists, I have seen nowhere presented in such succinct, compact,
and satisfactory a manner as in the articles of Professor Thayer,
of Cambridge, the “Jury and its Development,” published in the
Harvard Law Review, 1892, vol. v., pp. 249, 295, 357. Many points in
this interesting history, formerly obscure, have been illuminated and
made clear by the recent researches of careful students and inquirers
in Europe and Great Britain ; and the results of the old knowledge
and the new are embodied with learning and diligent care in these
articles. Nor is this subject of antiquarian interest only. Many
questions arise in connection with the functions of the jury, and the
relation of the court to the jury and its powers over them, in which a
judge is likely to slip if he is not familiar with the story of the origin
and evolution of the jury itself. Besides, it is obviously true, as Pro-
fessor Thayer points out, that the unique English Law of Evidence is
“the child of the jury;” is, indeed, its “greatest and most charac-
teristic offshoot,” without which it would never have grown up, and
without which it cannot be understood. Control over Juries by the
Courts, Ib., 312, and by New Trials, Ib., 384. As to Trial by Jury
in England, 2 Juridical Society Papers, 183 (Best), Ib., 236 (Sir Fitz
James Stephen); Unanimity of Jury, Ib., 7; Report of American Bar
Association, 1891, pp. 32, 281.
OOA’ Z.A. W. ZAV / TS O/L/O ATO/A2. I23
judges. We have to lament the recent death of this
great magistrate; but not long before that event he
wrote a paper on “The System of Trial by Jury,”
in which he expressed his deliberate and final appre-
ciation of the worth and value of trial by jury." It
is a cherished right. It is protected from legislative
overthrow by the National and by all of our State
constitutions. It is a historical and essential part
of the free institutions of England. It equally
belongs to our own free institutions. It springs out
of them, and tends to support and perpetuate them.
1 “I must confess,” says Mr. Justice Miller, “that my practice in
the courts, before I came to the bench, had left upon my mind the
impression that as regards contests in the courts in civil suits, the
jury system was one of doubtful utility; and if I had then been called
upon, as a legislator, to provide for a system of trial in that class of
actions, I should have preferred a court constituted of three or more
judges, so selected from different parts of the district or circuit in
which they presided as to prevent, so far as possible, any preconcerted
action or agreement of interest or opinion, to decide all the questions
of law and fact in the case, rather than the present jury system. . .
An experience of twenty-five years on the bench, and an observation
during that time of cases which come from all the courts of the United
States to the Supreme Court for review, as well as of cases tried before
me at nisi privs, have satisfied me that when the principles above
stated are faithfully applied by the court in a jury trial, and the jury
is a fair one, as a method of ascertaining the truth in regard to dis-
puted questions of fact, a jury is in the main as valuable as an equal
number of judges would be, or any less number. And I must say that
in my experience in the conference room of the Supreme Court of the
United States, which consists of nine judges, I have been surprised to
find how readily those judges come to an agreement upon questions
of law, and how often they disagree in regard to questions of fact,
which apparently are as clear as the law. I have noticed this so often
and so much, that I am willing to give the benefit of my observation
on this subject to the public, that judges are not pre-eminently fitted
over other men of good judgment in business affairs to decide upon
mere questions of disputed fact.” Mr. Justice Miller in an article on
“The System of Trial by Jury,” Am. Law Review, vol. xxi., pp. 861,
863.
Lecture
IV.
The jury
is part of
our free
institu-
tions.
I24. ZA WS AAWD 70A:/SPA’UDAEAVCE.
Lecture
IV.
No accept-
able sub-
stitute for
jury in
criminal
CàSeS,
It is my firm conviction that the love of liberty, -
of liberty regulated by law, - and a general and
habitual reverence for and obedience to the Con-
stitution and the laws, are the only ties which can
surely hold together our vast republic. These are
the sources of our greatness and the foundation of
our hopes. Let us never forget the truth so nobly
expressed by Burke : “Justice is itself the great
“standing policy of civil society; and any eminent
“departure from it, under any circumstances, lies
“under the suspicion of being no policy at all.”
In criminal cases there is no substitute for the
jury that would be acceptable to the profession or
endured by the people. In the solemn act of pass-
ing upon the guilt of those charged with offences
against the public, the jury represent the majesty
of the people as a whole;' and when acting under
the guidance of a capable judge, their verdicts are
almost always right. In the occasional cases where
the offender has been almost more sinned against
than sinning, but which cannot be anticipated or
excepted from the criminal code, and where the
offender is consequently technically guilty and a
judge would feel bound so to decide, the jury
administer an irregular equity, not capable of
being defined and formulated, nor of a nature to
be expressly sanctioned by the lawgiver, but which
satisfies the judgment and conscience of the com-
munity without overturning the criminal statute,
which still stands intact.
II. But civil controversies, especially in modern
times, are much more complicated than criminal
* Professor Amos, “Science of Law,” chap. x., Am. Ed., p. 267.
OOA’ CA. W. ZAV / 7.S. O/C/D AXOMAE. I25
trials, and the verdicts of juries are much less satis-
factory. This is largely owing to obvious causes:
1. Juries ought always to be, but too fre-
quently are not, composed of the better class of
citizens in respect of intelligence, moral character,
and business experience."
2. Judges have been deprived in many of the
States of some of the powers necessary to secure
a true verdict, and they fail to exercise there and
elsewhere the power to correct the mistakes of
juries by an adequate exercise of the right to
grant new trials. In some of the States, more-
over, statutes have been passed which degrade
1 In “De Laudibus ” (chap. xxix.), Fortescue discusses the ques-
tion “why there is not a jury of twelve men in other countries.”
After adverting to the fact that jurors were required to be “good and
lawful men of the neighborhood to the vill where the fact was done
... who have lands and revenues to the value of 100 shillings,” says
that “England is so thick-spread and filled with rich and landed
men’’ that it is everywhere practicable to obtain “a substantial jury
within the description before observed.” “Other countries, my Prince,
are not in such a happy situation, —- are not so well stored with inhab-
itants. . . . Wherefore, in those countries they must make up a jury
... of people of inferior rank, who have no proper notion of shame
or infamy, who have no estates or characters to lose; so prejudiced
and incapable in point of education as not to be able clearly to dis-
cern on which side the truth lies . . . ; other parts of the world cannot
furnish juries of so great sufficiency or equally qualified.” This was
written four centuries ago. The whole chapter goes to show that
character and intelligence in jurymen were from the first considered
indispensable. In this country we have rejected rank and property
qualification as conditions of eligibility, — necessarily and rightly so
under the fundamental principles of our political institutions. But
there never was a time and never a country where it was so impor-
tant, as now and here, to require juries to be composed of substantial
citizens, men of intelligence, moral character, and varied experience
in the affairs of life. If the trial by jury is to regain its former
popularity the reform must begin here; and to secure it, the legis-
latures and the courts must work hand in hand.
Lecture
Causes of
dissatisfac-
tion with
jury trials.
Curtail-
ment of
the powers
of the
judges.
I26 JA WS AAWD 90R/SPRUDEAVCE.
Lecture
IV.
Curtail-
ment of
the powers
of the
judges
(con-
tinued).
the judge as the presiding and guiding intelli-
gence at the trial, into an officer whose functions
rather resemble those of a mere moderator. He
is forbidden to charge upon the facts, forbidden
to sum up the case upon the evidence, forbidden to
express any opinion upon the value of the testi-
mony, and is expressly required to confine his
charge or instructions to a barren, and to the jury
often unintelligible, statement of the law of the
case; and is sometimes required to give or refuse
instructions in the precise form in which they
are adroitly framed by counsel.”
1 Missouri. — When the evidence is concluded, and before the case
is argued or submitted to the jury, “either party may move the court
to give instructions on any point of law arising in the cause, which
shall be in writing, and shall be given or refused ; the court may, of
its own motion, give like instructions.” 2 Wagner, Mo. Sts., p. 1046,
§ 47; 1 Rev. Sts., Mo., 1889, p. 566, § 2188. The construction of the
statute, or at all events the settled practice in Missouri, is, that if
there is any testimony, however slight, relative to the issue, such
evidence must be submitted to the jury. Hays v. Bell, 16 Mo., 496.
Houghlating v. Ball, 19 Mo., 84; McKoun v. Craig, 39 Mo., 156.
Wisconsin. — The statute of Wisconsin, after requiring that the
charge shall, in all cases, unless waived by counsel, be in writing, and
providing that if any judge shall “make any comments upon the law
or facts to the jury on the trial of any cause, without the same being
reduced to writing before it is given, any judgment which shall be
rendered upon the verdict shall be reversed,” adds, “Each instruction
asked by counsel to be given the jury shall be given without change or
modification, the same as asked, or refused in full.” 2 Rev. Sts. Wis.
—Taylor's — p. 1496, § 15; Sanborn & Berryman, Anno. Sts. Wis.,
§ 2853 (1889).
Illinois. – “Section 52. Hereafter no judge shall instruct the petit
jury in any case, civil or criminal, unless such instructions are re-
duced to writing.” Rev. Sts. Ill., Hurd, 1891, p. 1049; Starr & Curtis,
Anno. Sts., p. 1814. “Instructions asked, and not given, must be
marked ‘refused,’ those allowed must be marked ‘given,” and there
shall be no modification, or qualification, or explanation thereof,
except in writing.” Rev. Sts. Ill., Hurd's Ed., 1877, p. 740, §§ 52, 53,
O OVA2 ZA W //V ATS O/L/O ATO//E. 127 -
I repeat that if the judges will do their full
duty, the jurors will do theirs. If we are to expect
satisfactory verdicts, the presiding judge must in his
charge make the way of the jury plain and clear,
and he must have the legal power, as well as the
ability, to do this. To do this well is one of the
54. And “juries in all criminal cases shall be the judges of the law
and the fact.” Ib., p. 405, § 431; Rev. Sts., Hurd, 1891, p. 1049; Starr
& Curtis, Anno. Sts., p. 1814.
Mississippi. — All instructions must be in writing, and no judge
in any case, civil or criminal, shall sum up or comment on the testi-
mony; but it shall be lawful for the judge to charge the jury upon the
principles of law applicable to the case, at the request of either party.
Rev. Code, 1871, § 643; Anno. Code, 1892, § 732.
Arkansas. – “The reading of law books to the jury shall be allowed
in all cases, and after the argument or submission of a cause to the
jury, the court shall then charge and expound the law to the jury.”
Act of Jan. 19, 1861, Laws of Arkansas, 1861, p. 325. Since re-
pealed. The present practice is as follows: “Section 5131. Fifth,
When the evidence is concluded, either party may request instruc-
tions to the jury on points of law, which shall be given or refused
by the court; which instructions shall be reduced to writing if either
party require it.” Digest of the Statutes of Arkansas, 1884, p. 997.
Iowa. – Either party may request instructions to the jury on points
of law, which shall be given or refused, or given as modified by the
court in writing. The court may also, of its own motion, charge the
jury in Writing, and no oral explanation thereof shall be allowed.
Code of Iowa, 1873, §§ 2784, 2788; Rev. Code, 1888, p. 958. And so
in criminal cases. Code, 1873, §§ 4440, 4441; Rev. Code, 1888, p. 1392.
North Carolina. — “No judge, in giving a charge, shall give an
Opinion whether a fact is fully or sufficiently proven, such matter
being the true office and province of a jury; but he shall state, in
a plain and direct manner, the evidence in the case, and declare and
explain the law arising thereon.” Battle's Revisal of 1873, p. 197,
§ 237. This law has been replaced by the following: “Section 414
(1885, c. 137). Every judge at the request of any party to an action on
trial, made at or before the close of the evidence, before instructing the
jury on the law, shall put his instructions in writing, and read them
to the jury; he shall then sign and file them with the clerk as a part
of the record of the action.” Anno. Code, Civ. Pro., Clark, 1892,
p. 396. Similar statutes exist in some of the other States.
Lecture
IV.
Province
and duty
of the
judge.
I 28 LA WS AAWD 520/RISPRUDEAVCE.
Lecture
IV
Province
and duty
of the
judge
(con-
tinued).
supreme tests of judicial capacity. But it is possible
for the judge to show the jury their duty plainly,
and yet not infringe upon their 'domain. Lord
Chief-Justice Cockburn's charge in the Tichborne
case, though admitted to be one of the most remark-
able intellectual performances from the bench ever
witnessed, is thought by some who have examined
it to have trespassed upon the legitimate prov-
ince of the jury. Mr. Justice Stephen's charge
in the Maybrick case, which I read carefully at
the time, is justly open, as it seems to me, to this
criticism, - at least as we in this country view the
respective functions of the judge and jury."
1 Referring to Lord Chief-Justice Cockburn and his mode of charging
a jury, the author of a late volume, “A Generation of Judges, by their
Reporter,” London, 1888, says: “His summing up [in the Tichborne
case], which all agree to be a marvel of lucidity, has been criticised,
especially across the Atlantic, -whence our cousins canvass legal pro-
ceedings in England with keen interest and intelligence, — as too unfa-
vorable to the defendant.” The writer adds these sagacious and just
general observations in respect of the judge's functions and duties in
jury trials : “There are, in fact, two distinct courses for a judge to
take in summing up to a jury. He may either recapitulate the facts
and leave all the responsibility to them; or, having formed an opinion
on the various issues in the case, he may point out to the jury the
considerations tending to that conclusion, giving them, at the same
time, all the considerations which have an opposite tendency. The
first plan is that of a weak judge, and the other is the one adopted by
Cockburn. By the first view of the judge's duty, juries are deprived
of the best part of the experience, training, and intellectual superiority
of the judge; while, in the plan adopted by Cockburn, they have the
full benefit of the judge's assistance. There can be no question of
the superior advantages of Cockburn’s system in the hands of a man
like him; the only danger is that it may be adopted by weaker judges
who cannot do justice to the facts in all their bearings.” t
I had the pleasure in 1875 to hear Lord Chief-Justice Cockburn
charge a jury at the Queen's Bench in London, and I must say I
never heard anything more admirable. It was the work of a master.
OO//e Z.A. W. ZAV / 7.S. O/C/D AEMOMAE. I29
The implications from such legislation as I have
referred to above, although not pleasant to contem-
plate, may be useful to weigh and consider. Such
legislation implies the existence of a judicial system
that works in an imperfect and unsatisfactory man-
mer. Soften or disguise the fact as best one may,
Lecture
IV.
such legislation implies a distrust either of the capa-
city or of the integrity of the judges. Doubtless it is
the former; for integrity in the benches of our courts
is a common and almost universal possession. Such
legislation, therefore, implies a distrust of the capa-
city of the judge to deal with the evidence in sum-
ming up so as not to be likely to do more harm
than good, and it overlooks the need on the part
of the jury for intelligent judicial instruction and
guidance.
The remedy is not in the line of these stat-
utes which are based upon the assumed continued
existence of the cause of such statutes, but the
true remedy is to remove the cause by securing
judges who are competent to the full discharge of
the high and delicate duties of the judicial office.
Taking the judges as they run, I very much doubt
whether such legislation has the approval of the
body of the bar of the States which have adopted
it. It has, doubtless, often originated, not in a pub-
lic demand, or in any demand on the part of the
bar at large, but with some lawyer in the legislature
who likes to control juries by declamatory rhetoric,
and who has been disappointed by the conscientious
discharge on the part of some independent judge of
his whole duty. Under the practice required by
these statutes, mistaken verdicts are greatly multi-
Remedies
Suggested.
9
I3O LA WS AAWD 70A/SPA’UDAEAVCE.
Lecture
IV.
Granting
new trials.
The Scim-
tilla doc-
trine.
plied. At the same time, as an indirect although
unintended consequence of other legislation, judges
have been led to pay too much respect to erroneous
and eccentric verdicts. I have known judges who
boasted that they had never exercised their power
to set aside verdicts. This is a useful power in the
court, and one which it is sometimes necessary to
use to prevent a miscarriage of justice, and when
thus necessary should be unhesitatingly exercised.
The evil is increased by the prevalence in some
of the States of the false principle known as the
Scintilla doctrine, – namely, if there is a scintilla
of evidence the case must go to the jury; whereas
the true doctrine is that approved by the Supreme
Court of the United States, – namely, that no
case ought to be submitted to a jury where the
evidence in favor of the party who asks the sub-
mission is so weak that a verdict in his favor
ought to be set aside by the court.” The injustice
often produced by the scintilla doctrine and by the
1 The Supreme Court of the United States, after some apparent
fluctuation of opinion, has rejected the scintilla doctrine, and adopted
for the Federal courts the English rule on the subject, namely,– “that
in every case, before the evidence is left to the jury, there is a prelimi-
nary question for the judge, not whether there is literally no evidence,
but whether there is any (including all the inferences which the jury
can justifiably draw therefrom) upon which the jury can properly
find a verdict for the party producing it.” Per Mr. Justice Miller
in Pleasant v. Fant, 22 Wallace, 116. The same principle has been
often reaffirmed. The following are some of the later cases: Bowditch
v. Boston, 101 U. S., 16; Schofield v. Chicago, etc., R. R. Co., 114 Ib.,
615; Marshall v. Hubbard, 117 Ib., 415; Louisville & N. R. R. Co. v.
Woodson, 134 Ib., 614.
Judges and Juries. – Some years ago in a public address before one
of the State Bar Associations I gave expression to views similar to
those expressed in the text. The numerous letters I received con.
O OVA’ ZA W WAV / 7.S. O/L/D AEMOMA’. I3 I
refusal of the trial-court to interfere with unsound
verdicts, is made final by the refusal of the appellate
court, except in cases of the most flagrant wrong, to
interfere with the discretion of the trial-court refus-
ing a new trial. If the courts will clearly instruct
juries, and will exercise when they ought to do so
the power to set aside verdicts and grant new trials,
there will be less complaints about trial by jury, and
cerning them showed the deep interest of the profession in the subject.
The general tenor of the views expressed are indicated in the extracts
below given.
A judge of the Supreme Court of Missouri, who had been eminent
for more than a quarter of a century, wrote: “I agree with you so
heartily in your suggestions about judges and juries that I cannot
refrain from so saying. I have, as you know, no personal interest in
the tenure of the judges; but the changes made every few years, from
political considerations alone, tend to destroy the boasted independ-
ence of the judiciary, and to make the courts the organs of popular
opinion. The abandonment of the good behavior tenure is a mis-
take; the limit of our recent constitution to a small salary is a
greater one.”
A very able judge, of large experience on the bench of the Supreme
Court of another State, wrote: “I fully approve of your remarks upon
jury trials and the scintilla doctrine. It seems to me that one great
difficulty juries have to contend with is the mass of instructions given
in particular cases. They not unfrequently are lost in a maze of
instructions. Brief, pointed instructions, calling attention to the
points at issue, will generally, so far as I have observed, be followed
by satisfactory verdicts.” -
A distinguished lawyer in Illinois, speaking of the trial by jury,
said: “After much experience, reading, and cautious consideration,
I have come to the conclusion that the jury is a costly, cumbrous,
and uncertain tribunal for the trial of civil cases, and dangerous
where the judges dare not, or cannot, or will not restrain them. It
cannot last. In civil cases jury trial in England nominally exists;
but it is practically abolished by the judges in many cases, as every
advocate knows and feels. In a large portion of the cases, the pre-
siding judge on the circuit intimates to the barrister that he does not
need a jury, and the barrister knows that it is damaging to his cause
if after that he insists on a iury.”
Lecture
IV.
Defects in
the jury
system
remedi-
able.
I 32 M.A WS AAWD 90/º/SPACUDAEAVCAE.
Lecture
V.
Doctrine
of judicial
precedent.
less agitation for a change in the law whereby ver-
dicts may be rendered by a less number than the
whole of the jury, - a change which I believe to
be based upon no necessity and in the highest
degree unwise.
It is mainly to the causes above mentioned, some
of which are produced by unwise legislation, but all
of which, happily, are remediable, that the trial by
jury has declined to such an extent that it has come
in many cases to be an avowed maxim of profes-
sional action, — a good case is for the court; a bad
or doubtful case is for the jury.
Another distinctive feature of the system of law
which we have derived from England and the Courts
of Westminster Hall is the doctrine of judicial prece-
dent. In the Continental systems of jurisprudence
the decision of a cause is of no authoritative force, in
the sense in which we use the word “authoritative,”
in any other court, or even in the same court; hence
reports of decisions have comparatively little prac-
tical effect, and are relatively few. But not so in
England and in this country, and the result is that
the doctrine of judicial precedent has already pro-
duced a mountainous mass of law reports, and the
number, notwithstanding all efforts to . check pro-
duction, is increasing with undiminished rapidity.
The reports are extant in a regular series from the
reign of Edward II." They embody the wisdom of
the bar and the bench for many generations. They
contain the record of the development of the com-
mon and the equity law of the realm. “English
* See ante Lecture I., p. 29.
OOWA’ Z.A. W. ZAV / 7 S O/C/D ATO//Z. I33
jurisprudence,” says Burke in a passage before
quoted, “has not any other sure foundation, nor,
“consequently, the lives and property of the sub-
“ject any sure hold, but in the maxims, rules,
“principles, and juridical traditionary line of deci-
“sions contained in notes taken from time to time,
“ and published mostly under the sanction of the
“judges, called Reports.”
The growth of legal literature and the multiplica-
tion of the reports are marvellous, and perhaps it is
not too much to add, alarming. Lord Coke, after
enumerating the legal treatises of his time, says:
“Thus have you fifteen books or treatises, and as
“many volumes of reports, besides the abridge-
“ments of the common law and divers great volumes
“of the statutes and acts of Parliament.” Since
that time, however, these fifteen treatises have mul-
tiplied into as many hundreds; and of English,
Colonial, and American reports we have an un-
numbered multitude. In twenty-seven years, since
1865, the council of law reporting in England have
issued a large number of volumes, and I estimate
that more than sixty volumes of reports are annually
published in this country. We stand appalled at
this amazing and continuing growth. The lawyer
finds the reports to be indispensable. The law-
yer who reads and uses them is more than a match
for the lawyer who does not. We complain of
the number of reports and of the conflicting judg-
ments to be found in them, but this is only one
side of the account; on the other side, no lawyer
1 Ante Lecture T., p. 31, note.
* Preface to the third part of his Reports.
Lecture
IV
The enor-
IQOllS Iſla SS
of our legal
literature.
I34. IA WS AAWD 207P/SPRUDENCE.
Lecture
IV.
The
growth
and excel-
lence of
our legal
system.
or judge can estimate how much he is indebted to
them, and how much he is dependent on them, until
he reflects how much legal doctrine has been set-
tled, and how utterly lost he would feel if by some
great calamity all the law treatises and reports were
suddenly destroyed. Where this multiplication
of law reports is to end, what is to be its final
issue, what the form and shape which our law will
in the future assume, no one is wise enough to
foresee. Some affirm that this is either no evil,
or a necessary evil. Others assert that it is not
only an evil, but one which is even now almost
insupportable ; that it is bound to break down
under its own weight; and that we must in this
respect assimilate our jurisprudence to the civil
law or the Continental models. Others propound
what goes under the vague name of codification
as the only panacea. Certain it is that we have
here presented one of the gravest problems con-
nected with our law. I only advert to it at this
time in passing, but I shall hereafter offer thereon
some more extended observations.
I have now finished all that the limits of this
course allow me to say concerning the develop-
ment, general nature, and essential characteristics
of the system of English law. The basis of our
American law is the system thus outlined, and with
which the Inns of Court and Westminster Hall are
indissolubly associated. It is not a perfect system.
The common law was, indeed, crude ; and its im-
perfections have not been wholly removed and its
deficiencies supplied by legislation, by the courts
O OVA2 WCA VV ZAV ZZTS O/L/O AEWOA/A2. I 35
of law, and by the splendid system of equity juris-
prudence with which the common law has been sup-
plemented. Our legal system still exhibits but too
many touches and traces of its origin; it is doubt-
less capable of amendment in many respects; but
point me, who can, to any system worthier of higher
admiration for its substantive principles, or which
has accomplished better results, or which day by
day distributes better justice to those subject to its
sway. To the building up of this system many
generations of judges and lawyers have brought
their wisdom, learning, and experience. The work-
men have died, but the work, like the building of the
cathedral of Milan or of Cologne, has gone steadily
on. Those glorious edifices are, we are told, at
length finished, and already begin to show decay;
but the law, being a living growth whose roots aré
in the life of the people, ever advances toward an
unattainable completion. The majestic intellectual
structure of our jurisprudence, massive, grand, and
venerable, standing unmoved in the tide of his-
tory, has witnessed the rise and fall of dynasties;
but amidst all these changes its peaceful workmen,
“carrying a trowel to build but no torch to burn,”
have kept on with their labors, now strengthening
its foundations, now removing some unsightly
angle, anon lighting up or clearing out some dark
passage, now adding to its size and improving its
symmetry and usefulness, and at all times carry-
ing its walls still higher toward the skies; thus
preserving and adapting it, albeit at times tardily,
to the ever-changing and multiplying wants of
Society.
Lecture
IV.
The law a
living
growth.
I 36 A WS AAWD 90/º/SPRUDENCE.
Lecture For this system with its popular institutions, the
* grand and petit jury; for its regard for individual
Justly en- rights which raises it above and distinguishes it from
titled to º
our ad every other; for Magna Charta; for the writ of
*. Habeas Corpus; for the Petition of Rights and Bill
of Rights; for its grand historic associations; for
Hampden and ship money; for Burke's lofty accu-
sation of Hastings; for the verdict of the honest
and independent jury which acquitted the seven
bishops; for the illustrious names which have adorned
it, — Hale, Holt, Somers, Hardwicke, Mansfield,
Kent, Story, Marshall; for the social order it has
given and the liberty it has propagated and secured;
for the even-handed and enlightened justice it has
dispensed; for the light which for many years it
supplied to my dim vision as a judge, – I must be
pardoned if I feel something of the admiration of
an enthusiast, the veneration of a worshipper, the
homage of a disciple, and the gratitude of a cit-
The great izen. I would inspire you with the same love! It
... is worthy of it. What a marvellous growth it has
had It has followed the flag of England wher-
ever it has been planted throughout the globe.
If a member of one of the Inns of Court or
a lawyer from Westminster Hall or the new
English Law Courts buildings shall visit to-day
the august judicial tribunal of the nation which
sits at Washington, or any court on the Atlantic
sea-board, or on the Lakes, or on the Mississippi,
or at the base of the Rocky Mountains (where
Pike's Peak stands in stately grandeur like a
monarch of the Middle Ages, with his lesser
barons grouped around him), or on the shores
OOA’ ZA VV //V /TS O/LO HO//E. I37
of the Pacific Ocean, or beneath Indian skies, or
“By the long wash of Australasian Seas
Far off,”
or in our schools of law, he will find lawyers and
teachers quoting from, and judges guided by, the
decisions of Westminster Hall. Such and so vast is
the intellectual empire of our law Such and so
glorious are its peaceful and beneficent conquests |
Our lines have fallen upon a wonderful period in
the history of the world and of civilization. Not
only all the past but all contemporary experience is
at our service, and it is literally true that we “stand
“at the confluence of the greatest number of streams
“of knowledge flowing from the most distant sources
“that ever met at one point.” The law, “like all
“human systems, will ever advance nearer to per-
“fection, and ever fall short of it.””
Your special duty in your day and generation
* Mackintosh’s “Lectures on the Law of Nature and of Nations,”
given in the Inns of Court, June, 1799. These lectures filled the hall
of Lineoln's Inn “with an auditory such as never before was seen
on a similar occasion.” “All classes were there represented ; law-
yers, members of Parliament, men of letters, and country gentlemen
crowded to hear him.” “Life of Sir James Mackintosh,” by his son
(Boston: Little, Brown & Co., 1853), vol. i., p. 107.
2 Sir William Jones’s Preface to the Speeches of Isaeus. The law,
“like all human systems, will ever advance nearer to perfection, and
ever fall short of it. In the course of his inquiries he [the student of
the law] will constantly observe a striking uniformity among all
nations, whatever seas or mountains may separate them, or how
many ages soever may have elapsed between the periods of their
existence, in those great and fundamental principles, which, being
clearly deduced from natural reason, are equally diffused over all
mankind, and are not subject to alteration by any change of place
or time ; nor will he fail to mark as striking a diversity in those
laws, which, proceeding merely from positive institution, are, conse-
quently, as various as the wills and fancies of those who enact them.”
Lecture
Its vast
empire and
beneficial
conquests.
I38 LA WS AAWD 70A/SPAC/DENCE.
Lecture
IV.
The duty
of amend-
ing and
improving
our law.
will be to carry forward the work of improving the
law, so that you may leave it in a better condition
than you found it. This can only be done by an
adequate conception of the sources, the nature, and
the end of law. Our law is a complex system of
conventional and positive rules, and of fundamental
principles of natural justice based upon the reason,
the experience, and the conscience of mankind. The
cultivated lawyer does not undervalue positive reg-
ulations, or forms, or precedents, but his vision is
not bounded by them, and he delights to ascend
to higher altitudes, which offer to him a broader
horizon and a more glorious prospect. He is thus
enabled to perceive that the law in its great living
and essential principles may be and often is some-
thing more than the “command” of the sovereign
or of a legislative body, -is something deeper than
these ; that it has innermost and invisible springs
in the realms of an elevated morality, hard by the
throne of God; * and that its waters, – which are
meant, like the leaves of the tree of life, for the
healing of the nations, – although they may be
colored or tinctured by “the soils through which
they run,” never lose the sweetness and purity
derived from their original source, however far they
may flow, or to whatever uses they may be applied.
| Ante Lecture I, ; post Lecture VII.
* The fine sentence of Lord Bacon from which the quotation is
made is in these words : “For there are in nature certain fountains
of justice whence all civil laws are derived, but as streams; and like
as waters do take tinctures and tastes from the soils through which
they run, so do civil laws vary according to the regions and govern-
ments where they are planted, though they proceed from the same
fountains.” Bacon, “Advancement of Learning,” Book II.
OUR Z.A. W. YAV / TS O/LD AEMOMAE. I39
NOTE. A.
THE NIEW ROYAL COURTS OF JUSTICE.
The removal in 1882—1883 of the Common Law courts from
Westminster Hall and of the Chancery courts from various
buildings in Chancery Lane and rooms in Lincoln’s Inn, in
which they had long been held, to the new building known as
the Royal Courts of Justice, marks so important an event in the
history of the English courts of justice that it seems fitting to
make a more detailed reference to it. The following account
is abridged from a contemporary publication relating thereto.
The inadequacy and inconvenience of the court rooms adjoining
Westminster Hall having long been felt, the Incorporated Law
Society set on foot a movement to secure a new site and new
building in the vicinity of the Inns of Court. Steps had been
previously taken by the officials of the Chancery Division for
better courts and offices than the inconvenient, ancient, and
dingy rooms situate in various parts of Chancery Lane and
Lincoln's Inn. After much discussion, the scheme ripened in
successive acts: “The Courts of Justice Building Act, 1865.”
(28 Vic, chap. 48); “The Courts of Justice Concentration (Site)
Act, 1865?’ (28 Vic.., chap. 49); and “The Courts of Justice
Act, 1868’’ (28 & 29 Vic.., chap. 63). The competition between
the site on the Thames Embankment and on the Strand and
Carey Street, in the vicinity of the Inns of Court, was settled
in favor of the latter location. This involved the acquisition
of between seven and eight acres of land and the demolition of
about four hundred and fifty old buildings and rookeries. The
designs of Mr. Street for the new building were accepted, and
in 1874 the work of construction was commenced. The build-
ing occupies an area of four hundred and seventy by four hundred
and sixty feet, the central hall being two hundred and thirty
feet long, forty-eight feet wide, and eighty-two feet high. There
are over seven hundred rooms and offices in addition to the nine-
Note
A.
History of
the new
COurtS
building.
I4O LA WS AAWD 70A/SPRUDENCE.
Lecture
IV.
Inaugura-
tion cere-
IłłOIllèS.
The
Queen’s
speech.
The Lord
Chancel-
lor's
speech.
-a ºr
teen courts. The work of construction occupied about eight
years. The last case tried in the old courts at Westminster
was the celebrated case of Belt v. Lawes, in which judgment was
given December 28, 1882. The new building was inaugurated by
the Queen with imposing ceremonies, December 4, 1882. The
Lord Mayor and Aldermen of London, the Lord Chancellor, the
Lord Chief-Justice, and the entire body of the judges from
Westminster Hall received the Queen on her arrival at the
grand entrance, and the First Commissioner of Works, on her
Majesty’s taking her position on the dais, presented a silver
key to the Queen, saying: “May it please your Majesty, -
Your Commissioners of Works and Public Buildings have
been charged with the erection of this building during the
last eight years. It is now complete. It has fallen upon
me to announce to your Majesty that it is ready to be con-
stituted by your royal command as the central place in which,
in accordance with the ancient laws of your kingdom, justice
shall be administered in the future by your Majesty’s courts.”
Her Majesty, handing the key to the Lord Chancellor, said:
“My Lord Chancellor, – I deliver into your charge with this
key the care of these courts of law. I trust that the uniting
together in one place of the various branches of judicature in
this my Supreme Court will conduce to the more efficient and
speedy administration of justice to my subjects; and I have
all confidence that the independence and learning of the judges,
supported by the integrity and ability of the other members of
the profession of the law, will prove in the future, as they have
In times past, a chief security for the rights of my crown and
the liberties of my subjects.”
The Lord Chancellor replied with the following eloquent
speech, which was received with deep attention, and made a
profound impression, particularly the reference to the architect
[Mr. Street], who had untimely passed away, and the glories of
her Majesty’s happy reign: “May it please your Majesty, -
In the name and on behalf of the assembled judges of your
Majesty’s Supreme Court of Judicature, I accept the charge
which your Majesty has been pleased to lay upon me ; and I
ask permission to offer to your Majesty the humble expression
of our loyal devotion to your Majesty's person and throne, and
of our gratitude for the part which your Majesty has been
O OVA’ Z24 W //V WZTS O/C/D AſOA/A2. I4 I
graciously pleased to take in the solemnity of this day. This
building, now complete, was authorized by your Majesty,
with the concurrence of Parliament, in the year 1865, and
it has been in progress for more than eight years under the
hands of a great architect, to whom it has not been permitted
to see this day. Your Majesty, whose strength of sympathy
is so well known to us all, will, I am sure, share the feelings
of your subjects when they think of those who are no longer
with us, – of the architect whom we have lost, and of that
great prelate, venerable as much for his wisdom and virtue as
for his great office, from whose lips we might have hoped, not
many months since, to hear the Divine blessing invoked upon
us to-day. Man passes away, but his works remain. This
building will remain, as we trust, to a remote posterity, one of
the most magnificent public works of the time in which we
live. These Royal Courts of Justice, stately enough to satisfy
even those who are most accustomed to Westminster Hall,
will not, like Westminster Hall, recall the memories of Nor-
man or Plantagenet, of Tudor or Stuart kings; but they will
be forever associated with the name of your Majesty, and with
the glories of a reign happy beyond all which have preceded
it in those qualities of the sovereign which have caused your
Majesty to be so universally beloved and revered, in the ad-
vancement of all the arts of civilization, and in the general
peace and prosperity of the British people. Among the legis-
lative improvements which have distinguished your Majesty’s
reign, not the least has been the consolidation and union of
the several branches of the Supreme Judicature, which for-
merly exercised divided jurisdiction. To give full effect to
that great change it was necessary that the different courts
and offices should be brought together in one edifice fit for
the duties which they have to perform. This has at last been
done; and your Majesty, by your gracious presence here to-day,
has given a signal proof of your care for that justice which
will here be administered in your name. It was, indeed, fit-
ting and worthy of your Majesty that these Royal Courts
should be dedicated to their future use by the Sovereign of
these realms, whose noblest prerogatives are justice and mercy,
and from whom all jurisdiction within the British dominions is
derived.”
Not,
A.
The Lord
Chancel-
lor's
speech
(con-
tinued).
I42 LA WS AAWD 7UR/SPRUDENCE.
Lecture
IV.
The Lord
Chief-Jus-
tice's
Speech.
The new Courts of Justice, though inaugurated on December
4, 1882, were not actually opened for business until January 11,
1883; and the case of Belt v. Lawes served to connect the old
and new courts, since it was the last case adjudged in the old,
and an application for a rule for a new trial therein was the first
business transacted in the new building.
The Lord Chief-Justice, when taking his seat with Baron
IPollock and Mr. Justice Manisty in the Lord Chief-Justice of
Bngland’s Court, addressing an audience (composed of a large
number of members of the bar and professional gentlemen, as
well as many ladies) which crowded every part of the court,
said: “In taking their seats for the first time he did not pro-
pose to make any general observations; all such observations
had been made, in a manner which it would be vain for him to
attempt to imitate, by his noble friend, the Lord Chancellor,
upon the occasion when her Majesty was graciously pleased to de-
clare these courts open. He wished to say only two things before
beginning the business of the day. First of all, he would say
that, though they had left Westminster Hall, he trusted they
had not left behind them the traditions of that great and illus-
trious building, and that they would follow them in this their
new habitation; and especially he hoped that the unbroken tra-
dition — unbroken since he had known it — of mutual depend-
ence and harmony between the bench and the bar would continue
unbroken, – relations without which the bar might probably,
and the bench certainly would, find it impossible to discharge
their most important functions.”
LECTURE W.
OUR LAW IN IT.s NEW Homſ E — AMERICA : ITS ExPANSION,
DEVELOPMENT, AND CHARACTERISTICS IN THE POLITICAL
AND JUDICIAL SYSTEMS OF THE UNITED STATES.
IN the preceding lectures I discussed the subject
of Our Law in its Old Home, – England, - and
some of its essential and distinguishing features. In
the present lecture and the next I shall consider Our
Law in its New Home, – America, – and its ex-
pansion and development in the institutions of the
United States. In this I have a distinct purpose.
I am concerned that you, as persons destined to the
profession of the law, shall have an adequate and
just appreciation of the real character of our laws,
of their excellences and their defects. It is my
deliberate opinion that our laws as they exist are
deserving of high regard and admiration. It is, in
my judgment, a great error to assign (as I fear some
are inclined to do) to our laws a place inferior to
the Roman law, or its Continental adaptations.
Professor Pollock, in his excellent lectures, lately
published (1890)," speaking of the United States,
says:
“We find a marked tendency in American authors
“to take a Continental rather than an English view
1 Oxford Studies, lecture i.
Lecture
V.
Excel-
lences of
our laws.
I 44 ZA WS AAWD # UAE/SPRUDEAVCE.
Lecture
V.
Our laws
founded
on the
English
model.
Popular
foundation
of our
political
Systems.
“of the general theory of jurisprudence. Not only
“our positive and analytical method finds little favor
“with them, and their theoretical work is mostly
“akin to that of the German philosophical and his-
“torical schools, but they treat the common law
“itself as an ideal system to be worked out with
“great freedom of speculation and comparatively
“little regard to positive authority. Decided cases
“are treated by them not as settling questions, but
“as offering new problems for criticism. There
“are even one or two American writers of great
“ability, for whom, as for the German expounders
“ of Naturrecht, legal science appears to consist in a
“perpetual flux of speculative ideas.” "
I confess that I do not know to whom the learned
professor in the last sentence refers; and I think he
is mistaken in the general statement that American
authors display a tendency to take a Continental
rather than an English view of our jurisprudence,
and to adopt German and Continental rather than
English methods in the study and prosecution of
legal science or the decision of legal problems.
But if Professor Pollock is not mistaken, then the
observations in this lecture and the next are all the
more timely.
Our government, state and national, embodies
and rests upon the fundamental principle of the
absolute and essential civil and political equality
of all its citizens, whose collective will, expressed
by majorities, is the rightful and only source of
all political power. By this principle we must
stand or fall. In adopting it, we reversed the
* See ante Lecture I., p. 7, and note.
OUR LA W IM /ZS AVEW HOME. I 45
doctrines of the governments of continental Europe,
which doctrines were “that all popular and consti-
“tutional rights, all useful and necessary changes in
“legislation and administration, can only emanate
“from the free will and concession of the monarch
“or instituted government.” You may recall the
discussion of this subject by Mr. Webster in the
celebrated Hülsemann correspondence." The polit-
ical doctrine he asserted, so familiar to us, and
the elevated style and sustained dignity, force,
and logic of this remarkable state paper, combined
to fix upon it the attention of the contemporary
world. Is this fundamental principle sound 3 As
applied to our government, it has now stood the
test of more than a century, overcoming our fears,
strengthening and establishing our faith. I do not
purpose to discuss its soundness; the stage of dis-
cussion ended more than a century ago. We then
adopted it; we staked everything upon it. Our
institutions to-day have no other foundation; and
with it “we must sink or swim, live or die, survive
or perish.”
President Lincoln's celebrated phrase in his Get-
tysburg oration, wherein he described ours as the
“government of the people, by the people, for the
people,” is not a mere flourish of rhetoric, but a
definition historically and legally exact. It is a
government of the people, because it was ordained
by their sovereignty; by the people, because it is
carried on by their representatives and servants;
1 Letter of Daniel Webster as Secretary of State to Chevalier
J. G. Hülsemann, Sept. 30, 1850. Webster's Works (Little & Brown,
Boston, 1851), vol. vi., p. 488.
Lecture
V.
Lincoln's
famous
descrip-
tion
legally
exact.
I0
I46 LA WS AAWD # CVR/SAA’UDAEA CE.
Lecture
Our gov-
ernment
rests upon
the con-
sent and
interest
of all the
people.
Boutmy's
“Studies
in Consti-
tutional
Law.”
for the people, because it is maintained and con-
ducted solely for their benefit and behoof. Well
might the martyr President utter the fervent and
effectual prayer that it might not “perish from the
earth.” We believe and maintain, indeed, that our
government rests upon the broadest, deepest, and
most secure of all possible foundations, since it rests
upon the consent and interest of all ; in a word,
upon the sovereignty of society at large, which
possesses all the powers necessary to preserve and
secure the general welfare and safety, - “powers
which,” even Blackstone admits, “no climate, no
“time, no constitution, no contract, can ever destroy
“or diminish.” It would seem to result that our
self-governed nation is fitted to live, that it ought
to live, and that it will live so long as it promotes
the interest of the people, protects their rights and
liberties, and safeguards the common weal.
Professor Émile Boutmy, member of the Institute
of France, has recently written a work, entitled
“Studies in Constitutional Law — France — Eng-
land — United States.” I have found it an in-
teresting and suggestive book. He treats of the
differences, not only in the structure and form, but
also in the genius, of the constitutions of England
and the United States on the one hand, and of
France on the other. In the preface to the second
edition he states that though tempted to do so,
he has refrained from entering upon certain extra-
constitutional questions in the United States which
he says have lately arisen and will certainly be
some of the problems of the future. These he thus
enumerates :
OUR LA W //V M7'S AVAE W AMOMAE. I47
sº-
“The rapidity with which the growth of landed
“estates has begun and progresses; the immense
“extent of the latifundia ; the approaching exhaus-
“tion of the available soil, - that seemingly inex-
“haustible treasure; the increase of tenant farmers
“(a class hitherto almost unknown, and now by
“degrees replacing the yeomen who work their
“own estates); the appearance of the agrarian
“question ; the radical and socialistic character of
“the remedies proposed, - these things all show an
“alteration of the ancient basis on which the polit-
“ical fabric was erected. But if it is certain
“that the United States will tend to enlarge and
“strengthen the action of the central government
“in proportion to their advance in population and
“material civilization, one cannot say as yet whether
“this centralization will be for the benefit of a sin-
“gle federation or of several. The question of
“secession is not yet closed. Will the government
“of Washington alone profit by the powers taken
“from the thirty-eight States, or will these powers
“be divided among three or four governments at
“the head of federations fixed by natural geo-
“graphical divisions 2 These are serious questions,
“which I could not have entered upon without giv-
“ing more space to speculative conjectures than was
“compatible with my original plan.” "
Professor Boutmy is not only an intelligent but
a candid observer and careful student of our
history; nevertheless, I must say that I certainly
* “Studies in Constitutional Law — France — England — United
States.” By Émile Boutmy. Dicey's translation (Macmillan), Lon-
don, 1891.
Lecture
V.
Boutmy's
specula-
tions and
fears.
Not jus-
tified by
existing
condi-
tions.
I48 ZA WS AAWD 520/R/SPRUDENCE.
Lecture
V.
The future
of the in-
stitutions
of the
United
States.
fail to see anything in existing conditions that jus-
tifies his fears. I do not observe any alarming
growth of landed estates threatening a monopoly
of this source of wealth. The vast increase of per-
sonal property effectually renders anything like a
monopoly of wealth in this country impossible.
Happily every industrious man may readily accu-
mulate money and property; and so far as we can
foresee, that will be the condition for many genera-
tions to come. There may remain some existing
tendency as the result of the Civil War, or from
other causes, to enlarge and strengthen the central
government; but if so, it is comparatively slight,
and not in any degree alarming. In my judgment
there is no such tendency whatever at this time.
Professor Boutmy asserts that the question of seces-
sion is not yet closed, and expresses a fear that such
centralized power may finally inure to, and be
divided among, three or four federal governments
fixed by natural geographical divisions. He is mis-
taken. If anything in our history can be said to be
settled, it is the question of secession. Other ques-
tions may be open; but that question is closed, and
is so regarded universally, South as well as North.
And I shall point out presently that the natural
geographical situation under existing conditions is
that of one entire nation extending, as now, from
the Atlantic to the Pacific, and from Canada to
Mexico.
Let us rise, if we may, to adequate conceptions.
We have already a population of 65,000,000, − a
number greater than all the other peoples who speak
the English language, – inhabiting forty-four States
OUR LA WZ //V /TS AWAE W HOME. I49
and four Territories, reaching in unbroken continuity
from ocean to ocean, and from the Lakes to the Gulf
of Mexico. Behold the map of our country ! How
fortunate that the great mountain-ranges and the in-
tervening rivers run from north to south, – nature's
eternal ligaments. If the Rocky Mountains or the
Mississippi River had been co-incident with what
was erewhile known as Mason and Dixon's Line,
the nation might not have come out of the Civil
War undivided. Since then we have spanned these
mountain-ranges not only with telegraph lines but
with five transcontinental railways, whereby our
Atlantic and Pacific possessions are brought within
a week of each other, and the mountains themselves
have ceased to be physical barriers or lines of ter-
ritorial division. Consider not only our territorial
extent, but the variety of climate, soil, productions,
and resources, – territory suited to the most varied
agriculture; vast plains adapted to grazing; coal and
iron lying side by side; long stretches of mountain-
ranges rich with deposits of the precious metals.
If we apply to the future the law of our past growth
(and why may we not?), there are those present who
will live to see our country with a population of
100,000,000 of people.
Shall we, the lawyers and law students of Amer-
ica, be insensible to the responsibilities growing out
of our twofold relations and duties, – duties as
citizens toward our country, and duties as lawyers
toward its laws and jurisprudence 2 I offer no
apology for this line of remark, since it is impos-
sible properly to estimate the merits and value of
any system of laws, dissociated from the political
Lecture
Duties and
respon-
sibilities of
the legal
profession
in the
United
States.
I 50 ZA WS AAWD # CVRISPRODEAVCE.
Lecture
V.
Success of
American
popular in-
stitutions.
institutions out of which those laws spring or to
which they relate, and since also it ought never to
be forgotten that our primary and fundamental rela-
tion is that of citizens. It is not uncommon to hear
it said that although our government has not as yet
gone to pieces, it is liable to do so; at any rate, that
the practical workings of our institutions are unsatis-
factory, and have failed of real success. As more than
any other class the lawyers of a century ago shaped
and moulded our institutions," so it is especially the
duty of the legal profession of to-day to show, in
their lives and conversation, that they appreciate at
their undiminished value the free and popular insti-
tutions of their country.
Our institutions failed of success I deny it; a
thousand times I deny it ! In the name of every
man who, like myself, has come through the ter-
rible ordeal of poverty and knows what it is, - in
the name of the unnumbered thousands of generous
youth who must yet walk barefoot upon the heated
ploughshares of this ordeal, I deny it; for the genius
of our institutions will attend them, unseen, through-
out the fiery trial, and give them a safe deliverance.
What, let me ask, is the cause of our unexampled
growth, our matchless prosperity 3 Not alone, or
1 In one of the greatest of all his speeches, “For Conciliation with
America,” March 22, 1775, Burke observes concerning the American
Colonies: “In no country, perhaps, in the world, is the law so general a
study. The profession itself is numerous and powerful, and in most
provinces it takes the lead. The greater number of the deputies sent
to Congress were lawyers. I hear that they have sold nearly as many
of Blackstone’s ‘Commentaries’ [then recently published] in America
as in England.” “The Works of Edmund Burke,” 4th American Ed.,
Little, Brown, & Co., Boston, 1871, Vol. ii., pp. 124, 125; see post Lec-
tures XI., XIII.
O OVA’ ZA VV ZAV / 7.S AVAE JAV AZOA/A2. I 5 I
chiefly, a favored climate and a fertile soil, but the
magnetic force and marvellous power of our free
Lecture
V.
institutions, whose chief glory is that all men are
equal before the law, whose priceless benefaction is
that all men have equal opportunities.” A teacher
of law who fails to inculcate a rational but hearty
and sincere love of country fails in the discharge of
a high and peremptory duty.
It is with the laws and the legal institutions of
such a nation, — founded upon the sovereignty of
the public will ; with the cherished traditions and
rich heritage of its past history and achievements;
with its present greatness and grandeur; with the
bright visions of the future which it opens to our
view, and which, expanding illimitably as we gaze,
swell our hopes and exalt our pride; a homoge-
neous people, widely distributed over a territory of
more than imperial extent, with a common language,
with common interests, with common aspirations and
hopes, – it is with the laws and legal institutions of
such a country that we have to do, and which are
placed under the special guardianship of the bar of
America.
The lawyers and students of law of America ought
especially to remember that the strength of the
nation largely depends upon its laws, and the man-
ner in which they are administered. Are the laws
just, and are they justly administered 2 The inquiry
must be answered by the divine test: “By their
“fruits ye shall know them. Do men gather grapes
“of thorns, or figs of thistles?” Justice is the fruit
* Ante Lecture IV. ; post Lecture VII.
The laws
and legal
institu-
tions of a
great
lmation.
The na-
tion’s
strength
largely
depends
upon the
just ad-
ministra-
tion of
its laws.
I52 LA WS AAWD 7URISPRUDENCE.
Lecture
of good laws well executed; and “justice,” says Sir
James Mackintosh, in one of his famous lectures
delivered in Lincoln's Inn Hall, “is the permanent
Why good
laws well
adminis-
tered are
of supreme
impor-
tance to
the com-
mon weal.
interest of all men and of all commonwealths.” "
Conscious of its general truth, we give a ready
assent to this sentiment, without pausing to inquire
why it is that justice is of such supreme importance
to the nation as well as to the individual. It is
the justice of good laws well enforced that restrains
and punishes the criminal; that erects the only
effectual barrier against the uncurbed and multitu-
dinous passions of men as they come surging on
with the power of the ocean, and proclaims, “Thus
far and no farther; ” that protects with absolute
impartiality every right recognized by the law,
whether of natural persons or corporate, of the
weak or the strong, against any who menaces or
invades it; that stands as the impersonation of the
highest attribute of God, not passively with her
scales in equipoise, but with flaming sword, to
guard the injured and the innocent, and to strike
down the high-handed or the fraudulent wrong-
doer. The most satisfactory ideal I have ever
been able to form of justice is embodied in the
picture of a judge courageous enough “to give
the devil his due,” whether he be in the right or in
the wrong.
It is to protect and enforce public and private
rights that courts, with their judges and officers,
their jurisdiction and machinery, are established
and maintained. Their usual function, their most
obvious use, is to decide civil and criminal causes.
1 Ante Lecture IV.
O OVA’ Z.A. W. ZAV ZZTS AWAE VV HO/l/A2. I53
But this is far from the measure of their usefulness.
We readily see how important the administration of
justice is to the individual; but why is it of impor-
tance to the nation ? What, let it be asked, is the
nation but the aggregate of individual citizens ! In
our time, certainly in our country, no government
is secure that does not rest upon the interest and
affection of the governed. Ordinarily, when things
are moving on in the even, accustomed tenor of
their way, we lose sight of the vital dependence
of national life upon national justice. But let the
safety of the nation be threatened from within or
without, in the pressure and stress of such an exi-
gency, which comes sooner or later to all nations,
then is instantly perceived and felt the vital relation
between the national justice and the national exist-
ence. If all interests in the State, those of labor and
those of capital, which are always closely allied and
rarely antagonistic except as the result of laws which
operate unjustly upon the one or the other; if all
persons within the State, regardless of birth, race,
religion, or condition, feel that the State is the high-
est embodiment of practical beneficence, and surely
to be relied on to do equal justice to all men and all
interests, – then in the moment of public peril all
persons rise and rally, dilated and transfigured by a
sublime and irresistible patriotism, bringing as free-
will offerings their treasure and their lives to defend
and preserve the laws and institutions which they
have found to be so dear. Then especially it is that
the strength of popular institutions such as ours is
revealed and demonstrated.
If these observations be well founded, can the
Lecture
V.
Depend-
ence of
national
life upon
national
justice.
I54 M.A WS AAWD # UAE/SAA’UDAEAVCAE.
Tuecture
V.
General
survey of
our legal
system
and its
workings.
lawyer, the statesman, or the citizen conceive any
inquiry more important than one involving an
examination into the character and condition of
the laws and jurisprudence of his country 3 I
therefore purpose to attempt in this and the two
following lectures a survey, necessarily brief, of the
general nature of our system of laws and its prac-
tical workings, with a view to see how far it is con-
sonant with our political institutions and adapted to
the temper and wants of our people, and with the
further view to see how far it deserves, on the one
hand, the eulogies so often pronounced upon it, or
on the other, the complaints so frequently made
against it. Such a survey will, moreover, tend to
define the extent to which the “choice and tender
business” (as Sir Matthew Hale expresses it) of
introducing changes therein seems to be practicable
and expedient. §
It is observed in respect of the constitution of the
human mind that it “continually oscillates between
an inclination to complain without sufficient cause,
and to be too easily satisfied.”” Either extreme is
injurious. If we erroneously conceive an institution
or system to be perfect, it induces self-satisfaction
and inactivity. If we magnify its defects, it may
discourage the needful attempt to remedy them.
Let us come, then, to this inquiry, not as partisans,
nor with the zeal and bias of the advocate, but with
the “cold neutrality of impartial judges.” “Paint
me as I am ” was the command of Oliver Cromwell
to Lely “If you leave out the wart, the scars, or
the wrinkles, I will not pay you a shilling.”
1 Guizot, “History of Civilization in Europe,” lecture i.
O OVA’ CA VV AZW ZZTS AWA W H O//Z. I 55
Now the great fact, which, as we approach this
subject, meets our view, is that the common law
(including in the phrase “common law,” as here
used, the supplemental equity system of the Court
of Chancery which grew out of the common law
and constitutes a part of it) underlies the whole
system of American law and jurisprudence. The
expression, “the common law,” is used in various
senses: (a) sometimes in distinction from statute
law; (b) sometimes in distinction from equity law;
and (c) sometimes in distinction from the Roman or
civil law. I use it in this lecture in the latter sense.
I do not stop to inquire how the common law came to
be introduced here and adopted by us. I deal with
the fact as it exists, which is that the common law
is the basis of the laws of every State and Territory
of the Union, with comparatively unimportant and
gradually waning exceptions. And a most fortunate
circumstance it is, that, divided as our territory is
into so many States, each supreme within the limits
of its power, a common and uniform general system
of jurisprudence underlies and pervades them all;
and this quite aside from the excellences of that sys-
tem, concerning which I shall presently speak. My
present point is this: That the mere fact that one
and the same system of jurisprudence exists in all of
the States, is of itself of vast importance, since it is
a most powerful agency in promoting commercial,
social, and intellectual intercourse, and in cement-
ing the national unity. This view is so important
that I must take leave to dwell upon it for a
moment.
Lecture
V.
The com-
mon law
underlies
the whole
system of
American
laws and
jurispru-
dence.
Wast im-
portance
of this fact
pointed
Out.
I 56 ZA WS AAWD jº/R/SPAC/DEAVCE.
Lecture
V.
The com-
mon law
gives to
the legal
systems
of the
States a
homo-
geneous
character.
—m
Jurisprudence, as I have heretofore pointed out,"
is not something in the air — something lifted up
above and abstracted from the life of men — but
an eminently practical science, which has to do
directly with the conduct and relations of men,
and with their conduct and relations as members
of a particular State. It therefore necessarily par-
takes of a national character, — as, for example,
Roman jurisprudence, German jurisprudence, Eng-
lish jurisprudence, etc., referring thereby to the
principles and character of the distinctive legal
systems of these several peoples. The Roman law
affiliates the legal systems of continental Europe
and gives them a common, an organic character.
So the common law affiliates the legal systems of
England and the United States, and also the legal
system of each of the American States with the
legal system of all of the other States of the Union.
It makes them all akin. It gives them an organic
character. It is a living bond of union, since it is
the cause and medium of a constant and active
intercommunication and intercourse, making the
people of the whole country neighbors. The legal
systems of our forty-four States have not only the
same general character, but they are substantially
uniform and identical. So completely is this the
case that I speak from my observation and expe-
rience when I state that a thoroughly educated and
trained lawyer of any one State, having access
1 See ante Lecture T., pp. 21, 22. Accordingly, Burke says: “The
science of jurisprudence is the pride of the human intellect. A Science
which, with all its defects, redundancies, and errors, is the collected
reason of ages, combining the principles of eternal justice with the
infinite variety of human concerns.”
OOA’ CA VV /AV / 7.S AWAEW AſOMA. I 57
to the statutes and reports, is competent to deal
with, and in fact our lawyers daily do deal with,
questions and cases arising in and governed by the
laws of any of the other States. Undoubtedly there
are frequent inconveniences, and occasional mis-
chiefs, growing out of diversities in local legislation,
and undoubtedly these could be materially reduced,
and ought to be ; but after much experience and
reflection I am of opinion that these inconveniences
and mischiefs are somewhat exaggerated, for, after
all, the common law gives to our legal system in all
of the States not only a distinctive but essentially a
homogeneous character.
And now the inquiry presents itself: What is the
general character of the common law Ż what its
adaptation to our people and our situation ? what
its merits 3 what its defects 3 -
The first observation I would make is that the
common law, as well as the institutions which it
developed or in the midst of which it grew up, is
pervaded by a spirit of freedom, which distinguishes it
from all other systems, and peculiarly adapts it to the
ânstitutions of a self-governed people." It is clearly
established by the learned researches which have
been more recently made that the elements of this
law and of English polity are of Germanic origin.”
The Saxon conquerors of Great Britain were not
mere bodies of armed invaders. They went to
England, during two or more centuries, in families
* See ante Lecture IV.
* Stubbs’s “Constitutional History,” chap. i. et seq.; Freeman,
“Growth of the English Constitution,” passim.
Lecture
V.
General
character
of the
COIll IIlOIl
law.
158 IA WS AAWD 3'ORISPRUDEAVCE.
Lecture
V.
Its spirit
of free-
dom.
Its indig-
€Il OllS
character.
and communities. What manner of men were they
Guizot, certainly no partial witness, dwells upon the
fact that the distinguishing character of the Ger-
mans was “their powerful sentiment of personal
liberty, personal independence, and individuality.”
He affirms and repeatedly reiterates that they it was
who “introduced this sentiment of personal inde-
“pendence, this love of individual liberty, into
“European civilization; that this was unknown
“among the Romans, unknown in the Christian
“Church, and unknown in nearly all the civili-
“zations of antiquity. The liberty which we
“meet with in ancient civilizations is political
“liberty, - the liberty of the citizen, not the per-
“sonal liberty of the man himself.”
Conquering and colonizing England in this man-
ner, our Saxon ancestors carried with them “from
“lands where the Roman eagle had never been
“seen, or seen only during the momentary incur-
“sions of Drusus and Germanicus,” their language,
their religion, their customs, their laws, and their
organizations. These were indigenous — homebred,
without trace or tincture of the Roman law and in-
stitutions.” They borrowed nothing from antiquity
or from surrounding peoples. They founded, and in
the course of centuries their successors and descend-
ants — the people of England — built up, their
institutions on their own model. Macaulay speaks
of this with his accustomed vividness: “The foun-
“ dations of our Constitution,” he says, “were laid
1 History of Civilization in Europe, lecture ii.
* Freeman, “Norman Conquest,” chap. i.
& Digby, “History of Real Property,” 11, 12.
O &//ø I.A. W. ZAV / 7.S AWAE VV AZOA/A2. I59
“by men who knew nothing of the Greeks but
“that they had denied the orthodox procession and
“cheated the Crusaders, and nothing of Rome but
“ that the Pope lived there. Those who followed
“contented themselves with improving on the origi-
“nal plan. They found models at home, and there-
“fore they did not look for them abroad.” In
words well known the author of the “Spirit of the
Laws,” referring to the English Constitution, says,
“This beautiful system has been found in the for-
ests of Germany ” (Ce beau système a eté trouvé dans
les bois).”
This love of personal freedom and independence
was impressed upon the institutions they founded,
or adopted or modified. Learned investigators differ
concerning the extent to which Roman law existed
and prevailed in England at the time of the Saxon
conquest, and the extent to which its principles
have been incorporated into English laws, usages,
and institutions. As a system, it was, as I have
already pointed out, early and sturdily rejected.”
But there is a universal assent to these proposi-
tions, namely, that the Saxon spirit of freedom
was embodied in the various local courts; that it
was in these popular tribunals that the principles
of law and local government were cultivated and
disseminated; that the Saxons breathed into the
English government and institutions “a spirit of
“equity and freedom which has never entirely de-
“ parted from them,” “ and that in the course of time
* Essay on History. * Montesquieu, book xi., chap. vi.
* See ante Lecture I., pp. 22–26.
* Mackintosh, “History of England,” vol. v., chap. i.; Reeves,
“History of the Common Law,” Introduction by Finlason.
Lecture
V.
Local
' courts and
local gov-
ernment.
I6O LA WS AAWD #0RISPRUDEAVCE.
Lecture
V.
The exact
opposite of
the conti-
nental sys-
tems.
Local gov-
ernment in
the United
States.
the common law intertwined its roots inseparably
into the constitution, polity, local and municipal
institutions, the civil and criminal jurisprudence,
the family relation, and the rights of person and of
property. So from an immemorial or early period
the local territorial subdivisions of England, such as
towns and parishes, enjoyed a considerable degree
of freedom, and were permitted to assess upon
themselves their local taxes and to manage their
local affairs. The rate-payers were thus dignified
by being an integral part of the communal life;
the foundations of municipal liberty were laid;
political power was decentralized ; knowledge of
the laws and reverence for and obedience to them
were constantly taught by a participation in their
administration and enforcement. This is exactly
the opposite of the systems prevailing on the Con-
and regulates everything, thereby destroying muni-
cipal freedom and the capacity to enjoy and exercise
it, as well as the power to defend and preserve it."
In this country the system of decentralizing poli-
tical power, and of intrusting the direction of local
affairs to the local constituencies, has from the ear-
liest colonial periods been carried to a much greater
extent than in England. As you pass from one
end of this country to the other, alike in the older
regions and in the newest organized settlements,
you will see the affairs of each road-district, school-
district, township, county, village, and city locally
self-managed, including the administration of local
justice. Every township in the United States has
* Hearn, “Government of England,” chap. i., § 8.
O OVA’ ZAZ VV ZAV ZZTS AWAE W AMOA/A2. I6 I
a local court, with power to summon a jury of the
vicinage, thereby bringing justice home to the busi-
ness and bosoms of the people, and making it their
own affair. We are somewhat apt to look with dis-
dain upon the courts held by justices of the peace;
but in reality we have few more useful institutions.
The eyes of the ordinary justice have not, indeed,
been couched to the “gladsome light of jurispru-
dence.” He may be prone to make technical mis-
takes; but in general he manages, by himself or the
jury, to work out substantial justice in the decision
of the disputes arising out of the every-day affairs
of the people. It is in no slight degree instructive
to trace the institutions of this new country back to
the germs of the Saxon or Anglo-Saxon polity; for
when we touch to-day, not only in the towns of New
England but even in our frontier settlements, the
electric chain where with Providence hath bound the
ages and the generations of men together, we dis-
cover that we are in historic communion with rude
and remote ancestors, although separated from us
by seas, mountains, and centuries.
Whoever among you may have read the graphic
picture which Freeman in the opening of his work
on the “Growth of the English Constitution ” draws
of democratic institutions in the Swiss Cantons of
Uri and Appenzell, will never forget it. These, he
says, have existed from the earliest times They
are, he insists, a continued survival of the earliest
notions and usages of old, Teutonic freedom,- “an
“immemorial freedom, a freedom only less eternal
“ than the rocks that guard it, that puts to shame
“the antiquity of kingly dynasties, which, by its
Lecture
V.
Freeman's
descrip-
tion of
Swiss free-
dom in
Uri and
Appenzell.
T 1
I62 LA WS AAWD 90A/SPRUDENCE.
Lecture
V.
New Eng-
land town-
meetings.
“side, seem but as innovations of yesterday. There
“year by year, on some bright morning of the
“spring-tide, the sovereign people, not intrusting
“its rights to a few of its own number, but dis-
“charging them itself in the majesty of its cor-
“porate person, meets in the open market-place or
“in the green meadow at the mountain's foot, to
“frame the laws to which it yields obedience as
“its own work, to choose the rulers whom it can
“afford to greet with reverence as drawing their
“commission from itself. Such a sight there are
“but few Englishmen who have seen; to be among
“ those few I reckon among the highest privileges
“of my life. This is a sight such as no other cor-
“ner of the earth can set before the traveller. . . .
“The men of Appenzell have kept one ancient
“rite, which surpasses all that I have ever seen or
“heard of in its heart-stirring solemnity. When
“the newly-chosen landammann enters s on his
“office, his first duty is to bind himself by an oath
“to obey the laws of the Commonwealth over
“which he is called to rule. His second duty is
“ to administer to the multitude before him the
“same oath by which he has just bound himself.
“To hear the voice of thousands of freemen pledg-
“ing themselves to obey the laws they themselves
“ have made is a moment in one's life which can
“never be forgotten, – a moment for whose sake
“it would be worth while to take a far longer and
“harder journey than that which leads us to Uri or
“Appenzell.”
The assembly of citizens here described are mere
local assemblies, not assemblies of a nation, but of a
OOA’ CA. W. ZAV / 7.S AWAE W AſOA/AE. I63
*–
district; and it seems not a little remarkable that this
learned writer should have said that such meetings of
the whole body of citizens in their primary capacity
as men could be seen in no other part of the world.
For more than two hundred years before that pas-
sage was written, New England town-meetings had
been continuously held, where every citizen was
entitled to meet and vote, – to determine and set-
tle their local affairs, and to elect the public officers
by which those affairs were to be administered for
the coming year. And in essence the same powers
are now exercised by the whole body of the citizens
of the thousands of municipal and public corpora-
tions in the American States."
The States of this country bind together the
congeries of local institutions, which they create,
or recognize and regulate, independent of Federal
control, thus happily preventing a concentration at
the national centre of the governmental power and
duty of legislating for and regulating the affairs
of local communities throughout the country, - a
country of such extent that it would be impos-
sible for Congress to become accurately acquainted
with their exact situation, wants, and interests.
So, in the ascending scale, the Federal Consti-
tution constitutes the States and the people of all
the States into a national government. It defines
the relations of the States to each other and to the
general government, and limits, as amended, the
1 As to local self-government in England, see Dillon, “ Municipal
Corporations,” 4th ed., Little, Brown, & Co., 1890, vol. i., § 8 et seq.; in
the United States, §§ 8 a, et seq., 19 b, et seq.; as to the legal character
of the New England town, Ib., § 28.
Lecture
American
municipal
freedom.
The States
of the
Union.
I64 ZA WS AAWD #UR/SPA’UDENCE.
power of the States under any pretext to deprive
any citizen, however humble, of the great primor-
dial rights of freedom and equality before the law."
Magna Charta remains to-day one of the main
foundations of English liberty.” Its chief glory is
the provision “that no freeman shall be imprisoned
“ or disseized of his freehold but by the lawful judg-
“ment of his peers or the law of the land.” This
memorable provision, long ago embodied in the
State constitutions, has been carried into the Four-
teenth Amendment of the Federal Constitution,
thereby placing the rights of life, liberty, and prop-
erty, as against invasion by the States, under the
protection of the national authority. The ancient
lawgivers, to induce the highest possible veneration
and esteem for the laws, taught that they came from
heaven and were sacred. If any human work ought
to be regarded with sanctity by us, it is the Constitu-
tion of the United States. Unmatched and match-
less instrument; bulwark and guaranty of national
life, of general prosperity, and of countless bless-
Lecture
V.
Magna
Charta
made part
of our fun-
damental
law.
1 Post Lecture VII.
* “The whole of the constitutional history of England is little
more than a commentary on Magna Charta.” Stubbs’s “Constitu-
tional History,” vol. i., chap. xii. Magna Charta “is the keystone
of English liberty.” Hallam, “Middle Ages,” vol. ii., chap. viii.
M. Boutmy gives an interesting account of the causes which led to
Magna Charta and the nature of that great document. I can only
give a few sentences. “The resistance [to the King] had to be polit-
ical if the victory when gained was not to prove barren ; it had to be,
of necessity, general, national, -nay, even democratic, - if the vic-
tory was to be gained at all. . . . This is what imparts grandeur and
originality to the mighty drama, of which the first act ended with
the great charter, and which reached its climax with the constitution
of Parliament about 1340.” Boutmy, “English Constitution,” Eaden's
translation, 1891, chap. i., pp. 28, 29. See post Lecture VII.
O UAE ZA W ZAV / 7.S AWAEW HOME. I65
ings, – making the States and the people thereof
one great, free, happy, united nation
If the Supreme Court during the period of active
national development covered by the long official
career of Chief-Justice Marshall had put a narrow
and inelastic construction upon the Federal Con-
Lecture
V.
The Fed-
eral Con-
stitution.
stitution, so that it could not have expanded with
the growth and answered the necessities of a
great people, it would have been calamitous to
an extent no words can portray, and no imagi-
nation conceive. His views left it possible for
the national growth to take place in accordance
with the natural process of evolution. Marshall’s
judgments upon the national Constitution are
among the most original and massive works of
the human reason. They are almost as important
as the texts of the Constitution which they expound.
Some of them were, indeed, criticised at the time;
but they have immovably established themselves as
right in the general judgment of lawyers, public
men, and the people. Although changes in politi-
cal parties have been reflected in the personnel of the
bench ; although unforeseen crises in the national
life have been reached and passed, it is remarka-
ble that on not one of his many judgments has
been written the word “over-ruled,” and equally re-
markable that no political party proclaims or holds
tenets or doctrines inconsistent with the princi-
ples on which those judgments rest. They have
become primal lights, shining with the steadfast
fidelity of the North Star or the Southern Cross,
for the guidance of the inquirer after American con-
Marshall’s
great judg-
ments coln-
struing the
constitu-
tion.
I66 A WS AAWD 320R/SPACODEAVCE.
Lecture
V.
Statue
to the
memory of
the Great
Chief-Jus-
tice.
-
stitutional law. For nearly fifty years after his
death the nation failed to show in any overt man-
ner an adequate appreciation of the simplicity,
worth, and dignity of his character, and of his un-
equalled judicial fitness and qualities; at all events,
it failed to display any public memorial of gratitude
for those labors which not only so greatly contrib-
uted to make the Supreme Bench illustrious, but
which enabled the country to attain unto its present
stature without any strain upon the Constitution.
The bar and the nation have, though tardily, shown
themselves worthy of the inheritance of such a
name and of such labors, by erecting a statue to
his memory, executed by the gifted son of his
loved and eminent associate, to the end that the
chief executive, the legislator, the suitor, the law-
yer, the judge, and the citizen, may in all coming
time, as they go to or return from the Capitol, be
reminded of the thoughtful though severely plain
features, the calm majesty, the placid courage, the
lofty character, the inestimable public services of
him whose uncontested and unenvied title is that
of the Great Chief-Justice. The most satisfactory
estimate of Marshall and of his labors which exists
will be found in the address of your distinguished
Kent professor, delivered in 1879, before the Amer-
ican Bar Association."
Consonant with the popular character of our in-
stitutions are the grand and petit jury. They are
The grand
and petit
jury.
1 Annual address of Edward J. Phelps before the American Bar
Association, at Saratoga Springs, N. Y., 1879, reported in the trans-
actions of the Association for that year at pp. 173–192.
O OVA’ Z.A. W. ZAV / 7.S AVAE W AſOA/A2. 167
expressions of the free and practical spirit of the
common law. They have a value, a deep value,
too often overlooked, beyond the specific functions
they exercise. The jurors acquire and disseminate
a knowledge of the laws among the local commu-
nities from which they come, and to which they
return. We ought, doubtless, to reform the abuses
of administration in the jury system ; but the com-
plaints against the system, so far as well grounded,
arise largely from inexperienced or incapable judges,
or from unwise statutes curtailing the powers of the
judge in jury trials to those of a mere moderator.
I have made the jury the subject of much observa-
tion and reflection, some of the results whereof I
expressed in my last lecture. I will not here repeat
them, further than to reaffirm that in my judgment
the jury is both a valuable and an essential part of
our judicial and political system. It is not simply
to be venerated as a reminiscence, but to be prized
for its usefulness. Its roots strike deep into the
soil, and cling to the very foundation stones of our
jurisprudence. The system belongs to free institu-
tions, and tends to fortify and perpetuate them. I
quite agree with Chief-Justice Taney, than whom
few judges have had wider experience, and none,
perhaps, more capable of forming a sound and unim-
passioned judgment. He has left on record his
deliberate opinion that our liberties are closely
bound up with the preservation “in full vigor and
“usefulness of the great principles of the common
“law and trial by jury.” I protest against the
1 Tyler, “Memoir of Roger Brooke Taney, LL.D., Chief-Justice of
the Supreme Court of the United States,” Baltimore, 1872, p. 328.
Lecture
V.
Chief-Jus-
tice
Taney's
opinion of
the trial
by jury.
I68 LA WS AAWD #URISPRUDEAVCE.
continentalization of our law. I invoke the conser-
vative judgment of the profession against the icono-
clast who in the name of reform comes to destroy
the jury; against the rash surgery which holds not
a cautery to cure, but a knife to amputate. Twelve
good and lawful men are better judges of disputed
facts than twelve learned judges.”
Lecture
V.
1 See ante Lecture IV
-LECTURE WI.
OUR LAW IN ITS NEW How E — AMERICA : ITS EXPANSION,
DEVELOPMENT, AND CHARACTERISTICS IN THE POLITICAL
AND JUDICIAL SYSTEMS OF THE UNITED STATES (CON-
TINUED).
RESUMING the subject of the last lecture, I
commence by saying that it is no part of
my purpose to institute a comparison between the
civil and the common law, the one or the other of
which constitutes the foundation of the jurispru-
dence of every civilized Christian state." It is true
that, abstractly considered in its entirety as a sys-
tem of jurisprudence, the civil law, elaborated during
many centuries and matured by Rome in the height
of her civilization, was at one time superior to the
common law, whose foundations were laid in the
twilight of the nation, and which had not in many
points kept pace with the progress of the English
people. The feudal system in its day made serfs
of masses of men. It was a system in its nature at
war with commerce. It was inimical to peaceful
pursuits. Out of its logic sprang the most baleful
doctrine that has blighted the English law, - the
* See ante Lectures I., W.; post Lecture VIII.
Lecture
VI.
The civil
and com-
mon law.
General
effects of
feudalism.
17o JA WS AAWD 20R/SPRUDENCE,
Lecture
VI.
Effect on
domestic
life and
Iſla llllel'S.
doctrine of tenure." To gratify ancestral pride and
maintain family splendor, the feudal aristocracy
tied up landed property in the iron fetters of ten-
ure; and although it constituted the chief wealth
of the nation, it was withdrawn from commerce and
could not serve as a basis of credit. The feudal
system is the principal source of the land-laws of
Great Britain, which still press with such weight
upon the agricultural and industrial classes. What
singular phenomena we frequently witness as the
results of opposing forces. For example, feudal-
ism as a military system was by its very nature
compelled to ignore the rights of woman. She
could not render military service. Upon marriage
her legal identity was lost, — merged in that of her
husband; and the old common law pressed this
fiction inexorably to all its logical consequences,
— consequences which often so shocked the moral
sense as to lead the Court of Chancery timidly to
take the wife partially under its benign protection.
At the same time it is curious to observe that it was
feudalism, in its effects upon the domestic life and
manners in the castle, that gave to woman, to the
wife and mother, an importance they never before
had, and have never since lost. Having done its
work, feudalism is happily gone; but its choicest
flower — the elevation, companionship, and recog-
nized dignity of woman — still lives, and its fra-
grance fills the air. Nevertheless, her legal re-
habiliment — perhaps it were better to say her
new birth — is the work of our own times.”
* See post Lecture VIII. * More at large, post Lecture XIII.
O UAE Z.A. W. YZW WTS AWAE W HOME. 171
But with the growth of commerce, the world's
great civilizer; with the advancement and elevation
of the people and their constant progress toward lib-
erty; with the establishment and growth of the prin-
ciples of equity under the great Hardwicke and a long
succession of illustrious equity judges; with the dis-
appearance from the law courts of the refinements,
subtilities, and artificial logic of the schoolmen,
which so long poisoned the common law, - and tak-
ing law and equity as together constituting one
connected system of laws and jurisprudence, as that
system exists at this time in Great Britain and in
America, it is, I think, with all of its defects, the
best system of enlightened and practical justice that
the world has ever witnessed.
The Roman law conquered the nations of conti-
mental Europe; but the English people, as I have
already pointed out, resisted it, and as a system it
obtained no foothold on English soil.’ Many of its
principles have been introduced one by one into,
and have thereby enriched, the English law, notably
commercial and equity law; but the common law
has always maintained itself intact as a competing,
distinctive system. It must be confessed that it
lacks the artistic symmetry of its great rival; but
it was better adapted than the civil law to the
institutions and character of the English people,
and is for them at least, as it is for us, the better
system.”
1 See ante Lecture T.
* Wherefore Sir Matthew Hale well says: “Of its common muni-
cipal law this great kingdom has been always tender, and there is
great reason for it. For it is not only a very just and excellent law
Lecture
VI.
The un-
equalled
excellence
of the
existing
legal sys-
tenus of
England
and
America.
172 M.A WS AAWD 3'URISP/CUDEAVCE.
Lecture
I.
The
sources of
this excel-
Hence.
It is not a speculative system. It has not been
wrought out by doctrinaires and built up from with-
out as a work of conscious art. Its merit is that
it is based upon the experience of mankind; has
grown out of real transactions, actually litigated
and recorded. The foundation, or at least the dis-
tinguishing feature, of our legal system is the con-
viction that the only knowledge which can be relied
on in framing statutes or rules of conduct must come
from experience and not speculation. The princi-
ples of a judicial judgment, settled and announced
after the argument of counsel, limited to the precise
state of facts which the particular case presented,
added that much, but only that much, to the exist-
ing mass of legal doctrine. The chief value of our
system of law as we now have it is that it embodies
the lessons of time and long experience. “Every-
body is wiser than anybody,” said Talleyrand, and
truly; and it is this general, accumulated wisdom
that has been carried into our law. Lord Hale in
his short tract on the “Amendment and Alteration
of Laws,” every word of which is golden, three
times declares that “time is the wisest thing under
heaven,” and that “time and long experience is
“much more ingenious, subtile, and judicious, than
in itself, but it is singularly accommodated to the frame of the Eng-
lish government and to the disposition of the English nation; and
such as by a long experience and use is, as it were, incorporated into
their very temperament, and in a manner become the complexion
and constitution of the English Commonwealth.” Sir Matthew Hale,
“The History of the Common Law " (4th ed., Runnington, 1779),
chap. iii., p. 51. And much more to the same effect will be found in
Fortescue’s “De Laudibus,” written two centuries before. See par-
ticularly chaps. xxviii., xxx., xxxiii., xlv., xlvii., liv.
O UAE ZA W. ZAV / TS AWE W AſO/l/A2. I73
“all the wisest and acutest wits, coexisting in the
“world, can be.”"
The most distinctive feature of the common law
of England and America is the rule of judicial pre-
cedent, or the authoritative force of adjudged cases
as rules of decision for like causes subsequently
arising. In no other system of jurisprudence is
such force given to judicial judgments.” The result
is that elsewhere than in Great Britain and America
the judicial reports are comparatively few, since
judicial judgments have no authority, and no higher,
rank, theoretically at least, than the expositions or
commentaries of private writers. The correspond-
* “It is most certain,” says Lord Chief-Justice Hale, “that time
and long experience is much more ingenious, subtile, and judicious,
than all the wisest and acutest wits, coexisting in the world, can be.
It discovers such varieties of emergencies and cases, and such inconve-
nience in things, that no man would otherwise have imagined. And
on the other side, in everything that is new, at least in most things,
especially relating to laws, there are thousands of new occurrences
and entanglements, and coincidences, and complications, that would
not possibly be at first foreseen. And the reason is apparent; because
laws concern such multitudes, and those of various dispositions, pas-
sions, wits, interests, concerns, that it is not possible for any human
foresight to discover at once, or to provide expedients against, in the
first constitution of a law, . . . So that in truth ancient laws, espe-
cially that have a common concern, are not the issues of the prudence
of this or that council or senate, but they are the productions of the
various experiences of the wisest thing in the inferior world, - to wit,
time, which as it discovers day after day new inconveniences, so it doth
successively apply new remedies; and, indeed, is a kind of aggrega-
tion of the discoveries, results, and applications of ages and events;
so that it is a great adventure to go about to alter it, without very
great necessity, and under the greatest demonstration of safety and
convenience imaginable.” Hargrave's Law Tracts, “Amendment
and Alterations of Laws.” •
* See more fully, post Lectures VIII., IX., X., XIII.
Lecture
VI.
Doctrine
of judicial
precedent
and its
effects.
I74 A WS AAWD 520/R/SPRUDENCE.
Lecture
VI.
Bentham's
admission
as to the
value of
the law
reports.
ing result is that the judicial reports in England
now number more than three thousand volumes,
and in this country not less than the same num-
ber, and they are increasing in both countries at the
rate of over one hundred and fifty volumes a year."
Where is this multiplication of reports to end ?
Is it to go on unchecked, indefinitely? Is it desir-
able or practicable to check it 3 How far is it an
evil, and what is the remedy ? These are inquiries
of such serious moment that they may well engage
our attention.
I suppose it to be undisputed up to this time that
the law reports cannot be regarded otherwise than
as an inestimable possession. At all events, it is
not disputable. Even Bentham, the bitter opponent
of what he derisively styled “judge-made law,” and
advocate of that to which he gave the name of
“codification,” declared of the “report books ''
(which in “Benthamese ’’ stands for law reports)
that the “greatest quantity of wealth possessed in
“this shape by any other nation is penury in com-
“parison of that which has been furnished by the
“English common law. In this point of view (as a
“rich storehouse of materials for legislation; such a
“storehouse, that without it no tolerably adequate
“system of laws could be made) it is a blessing even
“now. As a light to the legislator, to assist him in
“making real law (that is statute law), it is a match-
“less blessing; but this sham law (that is, judge-
“made law) as a substitute to real law, is a curse.
“Time was when for want of recorded experience,
* See ante Lectures III., IV. ; post Lecture X.
OO//e Z.A VV //W / 7.S AWAE VV AZO//E. I75
“the pen of the legislator could find no tolerably
“adequate indications for guidance. Time was —
“but that time is now, at least, at an end.”"
To the subject of codification I shall presently
make a brief reference ; but since it is clear that
down to the present time the law reports are such
invaluable repositories of legal principles, the in-
quiry I wish now to make is whether the publication
of law reports has lived out the period of its usefulness ;
that is, whether their continued publication is a
benefit or an evil. Undoubtedly it were better that
many of the volumes of reports of inferior or over-
worked courts had never appeared. Undoubtedly
the weighty advice of old Bulstrode, so quaintly ex-
pressed in the dedication of his second volume, in
the time of the Commonwealth, over two hundred
years ago, has been too often disregarded: “That
“as the laws are the anchor of the Republic, so the
“Judicial Reports are as anchors of the laws, and
“ therefore ought to be well weighed before put out.”
Undoubtedly, it is to be regretted, that so many
cases have been, and that so many cases continue
to be, reported containing nothing new or valuable.
But the inquiry is, Have we reached a stage in
the history and development of our law when it is
desirable that the doctrine of judicial precedent, as
above defined, shall cease; that no more law reports
shall be put out, and that the reports be superseded
* Letter IV. of “Jeremy Bentham, an Englishman, to the Citizens
of the Several American United States,” on the Codification of the
law, 1817; Bentham's Works, vol. iv., p. 460; post Lectures VIII., IX,
X., XI., XII., XIII.
Lecture
VI.
The pub-
lication
of law
reports a
continuing
necessity.
176 ZA WS AAWD 3'UR/SPA’UDEAVCE.
Lecture
WI.
The issue
of the
existing
situation,
— what ?
Defects in
our law
which call
for rem-
edy.
by extracting from them all that is valuable and
transmuting it into statutable form # It does not
appear to me that the general answer to these
inquiries is difficult. The law as a result of the
ever occurring changes in the condition of society
and in legislation is constantly changing. How are
these changes authoritatively to be authenticated ?
The old is to a great extent so well settled and
known as to have become elementary and indis-
putable. It is the new that is unknown, and needs
interpretation and definition. And as between the
old reports and the new, the experience of every
lawyer and judge is, I think, to the effect that the
new are the most useful because the most needed;
and while this is felt to be so, the publication of
Reports of Adjudged Cases will of course continue."
The inquiry, however, recurs, Is this to go on
forever? . If not, when and how is it to end ? Will
it break down under its own ever-increasing and
insupportable weight, and end in eliminating the
doctrine of judicial precedent from our law, and
substituting the Continental system; or will it have
its end in superseding the law reports by codifica-
tion ; or will it have some other issue } -
I shall refer to certain features of this great
subject in this lecture, reserving other aspects of it
for future consideration. The matter is too vast
and complicated to admit of short and summary
disposition.
We have two great divisions of law, - statute-
law and case-law. The statutes are frequently frag-
mentary, - in Bacon's phrase, “cross and intricate,”
1 See post Lecture X.
OUR LA W IM ITS AWAEW HOME. I77
superimposed one upon another. Case-law has to
be sought in almost numberless reports and often
among conflicting decisions. Our law is thus fairly
open to the threefold objection of want of certainty,
want of publicity, and want of convenience." Its
Lecture
VI.
existing condition urgently calls for some remedy, if ...”
any practicable and expedient remedy can be found.
The lawyer in an important case does not feel that
he has discharged his full duty if he has not made a
thorough examination of the multitudinous decisions
and put the result upon his brief. The community,
* Amos (“Science of Law,” chap. xiii.), classifies “the exact evils”
to be provided against under four headings : —
1. Actual uncertainty, owing to the multiplicity and conflict of
deoisions.
2. Waste of labor in the process of ascertaining the state of the
law.
3. Want of publicity, preventing knowledge of the law by the
community or laity.
4. Want of knowledge, or the difficulty of acquiring such knowl-
edge, on the part of the legislator, thus hampering him in his efforts
to amend it.
It seems to me that the mischiefs which call for remedy are the
three I have mentioned in the text, namely: —
1. Want of certainty, -that is, the existence of unnecessary uncer-
tainty, arising mainly out of the partial and irregular development of
case-law and conflicting decisions and piecemeal and desultory legisla-
tion. See post Lectures VIII., IX., X. -
2. Want of publicity, arising out of having to acquire a knowledge
of the law by a resort to so many volumes of reports, thus necessarily
confining a knowledge of even its leading principles to the profession
of the law. See post Lectures IX., X.
3. Want of convenience (or voluminousness), caused by the vast num-
ber and multiplication of reports and statutes. See post Lectures IX,
X., XIII. e
Of these, the first and third are the more serious; but the second is
by no means unimportant, especially in a nation where suffrage is uni-
Versal. I have known more than one instance of the results of the toil
of years being swept away because men in business did not know the
elementary principles of the law of negotiable paper.
‘UII) CéI'-
tainty of
our laws.
12
178 LA WS AAWD 70A/SPRUDEAVCE.
Lecture
VI.
Probable
remedies
suggested ;
expanded
legislative
action.
which is conclusively supposed to know the law and
required to obey it, does not attempt to acquire or
affect to possess such knowledge.” Our condition is
worse than the condition in England, since we have
forty-four State courts of last resort, and no superior
tribunal to harmonize conflicting decisions, except in
the comparatively small number of cases involving
Federal law. Still the inquiry comes back, What
is the remedy ? “Is there no balm in Gilead 3 Is
there no physician there * * Still the question
presses, Where or in what is all this to end ?
When we consider how purblind are the wisest
and most sagacious in dealing with the future, I
venture a forecast, and the reasons therefor, with
unaffected distrust.
1. Our laws will, I believe, even if codification
be not adopted, become relatively more and more
embodied in legislative form. The greater certainty
and convenience of a carefully considered enactment
which covers the entire subject with which it deals,
Over the chaotic and unmethodized condition of the
law when it has to be sought through volumes of
reports and a variety of detached statutes, will con-
stantly operate with no inconsiderable force in ex-
panding the scope of legislative action ; and this
although codification, in the sense often or usually
* Tennyson's well-known picture borrows nothing from poetic
coloring, but is severely drawn with the sober pencil of a judge.
“The lawless science of our law,
The codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.”
OUR LAW Zw ZZ's AWEW A/OMAE. I79
attached to the term, be not undertaken. This ten-
dency is specially observable in recent English legis-
lation, and one cannot fail to perceive in the later
English reports how much greater than formerly is
the proportion of causes that turn upon statutory
enactments. Every statute carefully thought out
and fully covering an important subject (as, for
example, the English act codifying the law of bills
of exchange) is, in one sense, codification, – codi-
fication pro tanto ; at all events, it is pro tanțo a
remedy for the unsatisfactory condition of the law
on that subject existing when the statute was en-
acted. In this silent, unperceived way, the English
bar and people are being educated up to and grad-
ually prepared for codification in some practicable,
expedient form.
But ought the legislative action to be so expanded
as to embrace codification within its remedial en-
deavors ? Well, what is codification ? The term
is used in such a variety of senses that it must be
defined before the question, whether codification is an
eapedient remedy ? can be answered.
By one class of code advocates it is insisted that
the essential idea of a code is a complete statement
of the whole law of the land including both statute-
law and case-law. In their view, the principles of
true codification must assume that the law in its lead-
ing departments has practically attained its growth;
that its fundamental principles are settled; that these
can be and ought to be expressed in precise and
logical form, without any necessary reference to old
language, conceptions, or titles; that it is feasible to
do this so as to cover the whole field of general law,
Lecture
VI.
Codifica-
tion as a
remedy
considered,
I8O M.A WS AAWD # CVA/SPA’UDAEAVCAE.
Lecture
VI.
Bentham
as a law
reformer,
and his
idea of a
code.
and then to classify and arrange the result scientif-
ically to the end of superseding the prior statutes and
the law reports; and that any lesser attempt argues
an inadequate appreciation of the mischief and of
the needful remedy. To me, it has always seemed
inexpedient, even if it were possible (which it is
not), to attempt a scheme so ambitious as the em-
bodying into a code or statutory form rules appli-
cable to all the complicated transactions of modern
business and society, with a view to supersede the
reports.
The comprehensive scheme above outlined was
Bentham's idea of a code. What is more visionary
than the legal millennium he pictured to his fancy Ż
“Every man his own lawyer | Behold in this,” he
exclaimed, “the point to aim at.” Bentham never
argued or tried a cause. His independent and vigor-
ous intellect lacked the true legal wisdom that can
only come from living contact with the law at the
bar or on the bench. He had all the traits of a
reformer, — enthusiastic, fierce, destructive. He is
an unique, statuesque, eccentric figure in the Eng-
lish law. His sensitive nature personally unfitted
him for the practice of his profession. But as we
read his bitter, bold, sweeping denunciations of the
evils in government and the law as he saw them, we
fancy that we behold in him an ancient prophet with
flowing robe and beard, coming with a new mes-
sage to an unheeding world. His assaults were not
wholly without effect, and they brought about at
length some useful emendations in the law. They
did much more. They set the lawyers thinking ;
they initiated the notion of legal reform. They
O OVA’ ZA MV /AW / 7.S AVAE V AZOA/A2. I8 I
originated and communicated an impulse in our law
which is still felt and which has produced lasting
consequences. The world is yet troubled over his
ideas as to the rationale and true purpose of codi-
fication ; and it is not impossible that a future age
may accept as sound some of the ideas and notions,
which we still regard as extravagant or chimerical."
He believed it was possible to extract from the
reports all that was valuable in them — nay, that
this ought to be done, and done speedily — and to
embody it in a code; whereupon he would have
been willing, I fancy, to have burned the law
reports, and himself to have applied the torch.
Unfortunately there is no alchemy by which the
value of the law reports can all be extracted and
transmuted into statutory coin.
There are, I think, few advocates of codification
who share in Bentham's extreme views; but there
are many who believe, myself among them, that a far
less radical scheme — one more suited “to human
nature's daily food”—is not only feasible but desir-
able ; namely, a thorough revision and systematic
statement by experienced and master hands not of
the whole law, but as far as it can be expediently
done, of the law on the great subjects which relate
to the ordinary business and life of the people;
deducing and stating what is clear; removing what
is archaic and obsolete; settling what is doubtful or
obscure; never losing sight of the old landmarks;
sailing ever close to the shore; using whenever they
will best answer the purpose, old conceptions, lan-
guage, and methods of classification, and making no
* See post Lectures IX, XI., XIII.
Tlecture
VI.
Bentham
and law
reform.
Within
what
limits codi-
fication is
practicable
and expe-
dient.
I 82 A WS AAWD 520/R/SPA’UDEAVCE.
Lecture
VI.
Objections
to codi-
fication
noticed.
changes except where it is demonstrably clear that
change is improvement. Codification (if this is codi-
fication), within these conservative limits, has many
advocates in England and in this country among
lawyers and judges of ability and wide experience.
Of the opponents of codification of case-law in
any form, some deny its practicability and some
its expediency. Its practicability proceeds, in part,
upon the truth so clearly expressed by Lord Mans-
field, that “the law does not consist of particular
“cases, but of general principles, which are illus-
“trated and explained by these cases.” "
The number of the cases is legion; but the prin-
ciples they establish are comparatively few, capable,
of course, of being thoroughly mastered, and capable
also of direct and intelligible statement. The objec-
tion to the expediency of such a performance, as-
suming the work to be thoroughly done by the fittest
men in the profession, is that the freedom of growth
of case-law will thereby be arrested, and the inelas-
ticity and imperativeness of the codified rule will
work injustice, since the courts will be required to
apply it in cases in which the facts and circum-
stances would take it out of the rule if the rule had
not been cast in an inflexible statutory mould.
There is some plausibility, but on the assumption
that the work of codification is kept within the limits
and performed in the spirit and manner I have indi-
cated, there is little real force in the objection. In my
view, the codifier ought not to generalize any prin-
ciple so that it could fairly apply to any other than
the class of cases specially defined, and for which it
1 Rex v. Bembridge, 3 Doug., 332, 1783.
O OVA' Z.A. W. ZAV / 7.S. AZAZ VV HOA/AE. 183
was intended, to the end that the codified rule shall,
unless purposely changed, be simply co-extensive
with the uncodified rule, which the courts have no
more power to change or to refuse to apply in the
Lecture
VI.
uncodified, than in the codified, state. If cases
shall arise not within the rule, and not expressly
provided for, they will be determined in the same
manner as if no code existed. If mistakes be made,
they can be speedily remedied by the legislature,
which meets annually or biennially in all the States;
and by a standing provision for periodical legislative
revision. A rule could also be enacted that the code
should be construed as a code of the common law
of the State, and not strictly, like statutes in dero-
gation of the common law.
In the law of procedure, America has heretofore
led the way, under an able and eminent lawyer (Mr.
David Dudley Field), in a reform which has spread
not only over our own land, but has crossed the two
Oceans, and lies at the basis of the existing Judica-
ture Acts of Great Britain. Fortunate man to have
had his life graciously prolonged so much beyond
the common span, that he might witness the almost
ecumenical triumph of the ideas of his earlier, but
not more enthusiastic, days."
* Lord Chancellor Cairns, perhaps the ablest English judge of this
generation, in a speech in the House of Lords in 1876, said : “The
great change effected by the Judicature Acts came into operation on
the first of November last, and I am bound to say that every day
which has passed has satisfied me of the wisdom of Parliament in
introducing that great scheme. So far as I can observe the working
of the Judicature Acts, they have been in the highest degree satisfac-
tory. There has been found in their working a degree of flexibility,
of simplicity, of uniformity, and of economy of judicial time, which
has secured the best results.” Other eminent men hold like views:
Codifica-
tion of
the law of
procedure;
David
Dudley
Field’s
labors.
I84 LA WS AAWD #UR/SPA’UDENCE.
Lecture
VI.
It ought to gratify a laudable national and pro-
fessional pride if we could, in like manner, lead the
Thus, the late Right Hon. Sir Alexander James Edmund Cockburn,
Lord Chief-Justice of England, speaking of the Judicature Acts on
the occasion of being presented with the freedom of the city of Lon-
don, said: “I am happy to have this opportunity of saying it thus
publicly, as the result of my own experience during the past few
months, that this legislation has effected very great and salutary
improvements in the condition of English law. It has in many
respects brought the old maxims of the common law into harmony
with the larger and more liberal principles of equity. It has im-
proved our procedure, — simplified and improved it.”
Referring to the general condition of the English law, he added:
“There are still imperfections, numerous indeed, and serious too,
which have to be removed, and the greatest work of all has yet to
be accomplished. Your law is scattered over an area which makes it
difficult to find what you want at the moment you want it. A Ro-
man legislator complained ‘that the works on Roman law had become
the load of many camels.” How truly may that be said of the law of
this land, with this exception, that for camels I could, if you would
allow me, substitute cartloads. [He might have said carloads.] The
truth is, that the unwritten law, in the reports and decided cases, and
in the innumerable treatises which spring up like grass under our
feet, has become at last a chaotic mass, a labyrinth in which no man
can find his way, unless he has got a lawyer to go along with him
and support him. Now, that is a state of things which I think is
not creditable to us as a great nation. You have brought justice
to every man's door; you must bring a knowledge of the law, at
all events of its elementary principles, and, as far as you can, a
knowledge of its principles to every man. Our law is to be found
in thousands of volumes and in acts of Parliament without end,
in acts of Parliament more or less unintelligible by reason of the
uncouth, barbarous phraseology in which they are framed. . . . It
is time that all that was removed. It is time that your laws should
be reduced into intelligent phraseology; it is time that your laws
should be digested. . . . No one but a lawyer knows what is
law except as to the most elementary principles. This is not a
state of things creditable to this country; and as a great poli-
tician once said, ‘Register, register, register,’ my advice, and I am
very glad to have the opportunity to express it publicly here, to the
legislator, lawyer, and the layman, is, ‘Digest, digest, digest; codify,
codify, codify.' I will not listen to the man who tells me that the
thing is not capable of being done. Other nations have done it. . . .
O OVA' AA W ZAV / 7.S. AVAZ W H OA/A2. I85
v-
way to a reform equally needed, and within the
limits I have above indicated, equally practicable,
It is not only France that has done this, for other Continental nations
have done the same ; Prussia, Austria, and Italy have all admirable
codes. . . . There are some people who run away with the strange
motion that the law is made only for lawyers and judges to interpret.
They do not seem to see the fact that the law is made for the com-
munity, and not merely for the body of lawyers. . . . Depend upon
it, the time will come when the pressure of public opinion on this sub-
ject will not allow our law to remain in the state of chaotic uncertainty
in which to a certain extent it is.”
The present Chief-Justice of England, Lord Coleridge, at the pub-
lic reception tendered to him by the Bar Association of New York
City in 1883, in reply to the address of welcome, took occasion to
Say : —
“You are probably aware that we in England have been engaged
for the last ten years, beginning in 1873, when as attorney-general I
was responsible for passing the Judicature Act through the House of
Commons, in endeavoring to cheapen and simplify and expedite our
procedure upon the lines of those salutary statutes which the wisdom
of Parliament enacted about thirty years ago (in 1852 to 1854). It
was high time that something was done to expedite and amend and
simplify the common law. It had become associated in the minds of
many men with narrow technicality and substantial injustice. That
was not the fault of the common law, but it was the fault, if fault it
were, of the system of pleading, which looked at practically was a
small part of the common law, but very powerful men had contrived
to make it appear that it was almost the whole of it, — that the
science of statement was far more important than the substance of
the right, and that rights of litigants themselves were comparatively
unimportant unless they illustrated some obscure, interesting, and
subtle point of the science of stating those rights. It is a comfort to
think that those subtleties, if there was any merit in them, have not
entirely been banished from the earth, and I am told that there is a
State in this progressive Union in which they are, at this moment, as
alive as ever; and Iventure upon this subject to make you a practical
suggestion. You have lately procured, - may I say most wisely 7 — a
great National Park, in which the beauties and glories of Nature and the
strange and eccentric forms which natural objects sometimes assume,
may be preserved forever for the instruction and delight of the citizens
of this great republic. Could it not be arranged, that with the Sane-
tion of the State, some corner in that one State should be preserved,
as a kind of pleading park, in which the glories of the negative preg-
Lecture
VI.
I86 ZA WS AAWD # CVR/SPA’UDEAVCE.
Lecture
VI.
Progress of
American
jurispru-
dence ;
extract,
from
Webster's
eulogy on
Justice
Story.
in the substantive law common to both nations.
I recall here Webster's remarks in his finished
eulogy on Mr. Justice Story: “There is no purer
“pride of country than that in which we may in-
“dulge when we see America paying back the
“great debt of civilization, learning, and science
“to Europe; and in the august reckoning and
“accounting between nations, returning light for
“light, and mind for mind. Acknowledging, as
“we all acknowledge, our obligations to the orig-
“inal sources of English law, as well as of civil
“liberty, we have seen in our generation copious
“ and salutary streams turning and running back-
“ward, replenishing their original fountains, and
“giving a fresher and brighter green to the fields
“of English jurisprudence.””
To show that the bar and judges of England cor-
dially acknowledge that the debt which we owe is
being paid, may I be pardoned for giving an extract
nant, absgue hoc, replication de injuria, rebutter and sur-rebutter, and all
the other weird and fanciful creations of the pleader's brain, might be
preserved for future ages to gratify the respectful curiosity of your
descendants, and that our good old English judges, if ever they re-visit
the glimpses of the moon, might have some place where their weary
souls might still find the form preferred to the substance, the state-
ment to the thing stated. I cannot help thinking that that would
be a matter worthy of the liberality, of the genius and conservative
instincts of the great American public. But it is really, to speak
seriously, a great pleasure for me to find that slowly, and if I may
say so, with wise hesitancy, you are gradually admitting into your
system those changes which we have lately made, as and when they
Satisfy the needs, the temper, and the genius of your people.”
The learned chief-justice seemed for the moment to forget that
America had led, the way in this reform.
1 Webster's Works (Little & Brown), vol. ii., p. 297, 1845; post
Lecture XIII.
O OVA’ Z.A. W. ZAV ZZTS AWAE W AſOA/A. 187
from an autograph letter now before me, dated
December 30, 1876, which I had the honor to
receive from the late Lord Chief-Justice Cockburn.
He says: “I pray you to believe that the respect
“paid by the jurists of the United States to the
“authorities of the Old Country, in regard to the
“law which both nations have derived from a com-
“mon source, is most cordially reciprocated. There
“is scarcely a discussion of any importance in
“which American decisions and American authors
“are not cited, and the judgments and dicta of a
“Marshall or a Story are as familiar to us as those
“of a Mansfield or an Ellenborough. May this
“ever be so ! While as an Englishman I desire
“that a community of origin and a community of
“interests (when the latter are properly understood)
“should draw the two nations closer, as a lawyer I
“could wish that a common jurisprudence should
“assist to cement the bonds of international
& 4 amity.” 1
2. In course of time, each State will have, as the
result of permanent statutes and the lengthened line
of its own judicial decisions, a jurisprudence of its
own so ample that the necessity for going beyond
1 Lord Selborne, under date of October 26, 1892, writing to me in
a similar strain of generous candor, in acknowledgment of the receipt
of the medal awarded to him by the American Bar Association “for
meritorious and distinguished services in advancing the science of
jurisprudence and the administration of justice,” says. “Whatever I
may have been able to do, or endeavored to do, to advance the Science,
in the common pursuit of which your association and the bar of Eng-
land are engaged (and I certainly cannot myself estimate it as Worthy
of so high an honor), it is to be attributed entirely to those masters
of the principles of law, at whose feet I have been a learner; among
whom not the least are the great American jurists.”
Lecture
VI.
Lord
Chief-Jus-
tice Cock-
burn's
acknowl-
edgment.
Future
condition
of the law
in the seve
eral States
of the
Union.
I88 ZA WS AAWD 207A/SPA’UDEAVCE.
Lecture
VI.
it will arise only in novel and exceptional cases,
which will justify and reward the labor.
3. As the common law, happily, underlies sub-
stantially our whole jurisprudence, thereby giving
it a general uniformity of character; as the labor of
examining the multitude of reports becomes more
and more onerous to the busy practitioner or the
equally busy judge; and as the character for learn-
ing and ability of many of the benches of shifting
judges is not such as to invest their judgments and
decisions with special value, the combined result
will be a tendency more and more to diminish the
importance of the “case lawyer” and to make felt
the importance of a knowledge of the great, living,
fundamental principles of our law and equity sys-
tems, and to argue and decide causes with greater
reliance upon these principles. We have happily at
length reached, in law as in literature, the salutary
stage, when, in the language of Dr. Johnson, “no
precedents can justify absurdity.” When recently
crossing the bay of New York, the Statue of Liberty
with its uplifted torch enlightening the world sug-
gested to me that the true ideal of a modern judge
was no longer a figure with bandaged eyes, but
rather the figure of one who carries in his upraised
hand the torch of truth lighted from on high, and
who throughout the arguments of counsel and in
the maze and labyrinth of adjudged cases walks
ever with firm step in the illumination of its con-
stant and steady flame.
Impor-
tance of
the study
of prin-
ciples in-
creasingly
recog-
nized.
Ideal of a
modern
judge.
1 Life of Milton.
O OVAE Z.A. W. ZAV ZZTS AWAE VV AZOA/A2. 189
As, therefore, we must expect that adjudged cases
will continue to be reported, and continue as here-
tofore to be used as authority and to serve as sources
or evidence of legal principles, we are deeply con-
cerned in whatever favorably or injuriously affects
the value of the reports."
The character of many recent American reports
has deteriorated from several causes. To two of
these I shall now allude because they arise from
mistaken views and practices of the judges them-
selves, and are, therefore, readily remediable.
Most of our appellate courts are crowded with
causes, and the effect upon the judges is that they
too often feel it to be an ever-pressing, paramount,
all-absorbing duty to clear the docket. This mis-
takenly becomes the chief object to be attained, -
the primary, instead of a quite subordinate, consid-
eration. In the accomplishment of this end, the
judges are as impatient of delay as was the wedding-
guest in the Rime of the Ancient Mariner. Added to
this, a majority of the appellate judges generally
reside elsewhere than at the capital or place where
the courts are held, and the desire is constantly felt
to bring a laborious session to an end as speedily as
possible, in order that they may rejoin their families
and do their work in the fatigue-dress of their libra-
ries, rather than under the necessary restraints of
the term. They begrudge the time necessary for
full argument at the bar. They dislike to hear
counsel at length. They prefer to receive briefs.
As a result, two practices have grown up too gen-
1 See post Lecture X.
Lecture
VI.
Deteriora-
tion of
modern
law reports
and the
C8 UIS6S
thereof.
I90 M.A WS AAWD #UR/SPACUDENCE.
Lecture
VI.
Superior
value of
oral over
printed
argu-
mentS.
-a-r
erally throughout the country, which have, as I
think, done more to impair the value of judicial
judgments and opinions than perhaps all other
causes combined.
The first is that the submission of causes upon
printed briefs is favored, and oral arguments at the
bar are discouraged, and the time allowed therefor is
wsually inadequate.
On this subject, I hold very strong opinions; but
also hold that no opinion can be too strong. As a
means of enabling the court to understand the exact
case brought thither for its judgment; as a means
of eliciting the very truth of the matter both of law
and fact, there is no substitute for oral argument.
None ! I distrust the soundness of the decision
of any court, of any novel or complex case, which
has been submitted wholly upon briefs. Speaking,
if I may be allowed, from my own experience, I
always felt a reasonable assurance in my own judg-
ment when I had patiently heard all that opposing
counsel could say to aid me; and a very diminished
faith in any judgment given in a difficult cause
not orally argued. Mistakes, errors, fallacies, and
flaws elude us, in spite of ourselves, unless the case is
pounded and hammered at the bar. This mischiev-
ous substitute of printer's ink for face-to-face argu-
ment impoverishes our case-law at its very source,
since it tends to prevent the growth of able lawyers,
who are developed only in the conflicts of the bar,
and of great judges, who can become great only by
the aid of the bar that surrounds them. What law-
yer will prepare for a thorough argument at the bar
when he knows that he will not have the time to
O UAE ZA W //V M7TS AWAE W HO//Z. I9 I
present it 3 It was not thus until a recent period.
Nor are these views at all novel. Lord Coke refers to
the benefits of oral arguments in language the most
solemn and impressive. In cases of difficulty, he
says: “No man alone with all his uttermost labors,
“nor all the actors in them, themselves by them-
“selves out of a court of justice, can attain unto a
“right decision; nor in court without Solemn argument
“where I am persuaded Almighty God openeth and en-
“largeth the understanding of those desirous of justice
“ and right.” This, I declare unto you, I do verily
believe. * -
Formerly, whenever a new or difficult question
arose, the judges of England invited argument and
reargument, always in open court ; and in the earlier
days of the law, the matter was not only debated at
the bar by the counsel for the parties, but was
afterwards discussed by the judges openly at a time
prefixed in the presence of the barristers and ap-
prentices: “a reverend and honorable proceeding
“in law, a grateful satisfaction to the parties, and a
“great instruction to the studious hearers.” Truth
* “Whereunto (in those cases that be tortuosi and of great diffi-
culty, adjudged upon demurrer or resolved in open court), no one man
alone with all his true and uttermost labors, nor all the actors in them,
themselves by themselves out of a court of justice, nor in court with-
out Solemn argument, where (I am persuaded, Almighty God openeth
and enlargeth the understanding of those desirous of justice and right)
could ever have attained unto. For it is one, amongst others, of the
great honors of the common laws, that cases of great difficulty are
never adjudged or resolved in tenebris or sub silentio supressis rationibus,
but in Open court, and there upon solemn and elaborate arguments, –
first at the bar by the counsel learned of either party a (and if the
case depend in the Court of Common Pleas, then by serjeants-at-law
only"); and after by the bench by the judges, where they argue (the
* See ante Lecture I. * See ante Lecture III.
Lecture
TVI.
Lord
Coke's
opinion.
Former
English
practice.
I92 JA WS AAWD 520/RISPRUDENCE.
Lecture
V
Full con-
Sultation
by the
judges
should
always
precede
the writ-
ing of the
opinion of
—-ºr
is not apt to enter where she is not received with
welcome and hospitality.
If our case-law is not to go on deteriorating, we
must revive the former appreciation of the value of
Oral arguments. It is these that must be favored,
and it is the submission wholly on briefs that ought
to be discouraged.
The other practice among some, I fear many, of
our appellate courts which injuriously affects our
case-law is the practice of assigning the record of
causes submitted on printed arguments to one of the
judges to look into and write an opinion, without a pre-
oious ea'amination of the record and arguments by the
** judges in consultation.
This course ought to be forbidden, peremptorily
forbidden, by statute. What is the most difficult func-
tion of an appellate court 2 It is, as I think, after
the record is fully opened and the argument under-
stood, to determine precisely upon what point or
points the judgment of the case ought to rest. This
most delicate and important of all judicial duties
ought always to be performed by the judges in full
conference before the record is delivered to one of
their number to write the opinion of the court;
which, when written, should be confined to the
precise grounds thus predetermined. In respect to
oral arguments, the time allowed therefor, the will-
puisne judge beginning and so ascending) seriatim upon certain days
openly and purposely prefixed, declaring at large the authorities, rea-
sons, and causes of their judgments and resolutions, in every particular
case (habet enim nescio quid energiae viva vow) a reverend and honorable
proceeding in law, a grateful satisfaction to the parties, and a great
instruction and direction to the attentive and studious hearers.” Sir
Edward Coke's Preface to 9th Coke's Reports, p. xiv.
O OVA' /A W ZAV / 7.S. AVE W HOME. I93
ingness to hear counsel and full conferences among
the judges in the presence of each other prior to
decision or assigning the record to a judge to write
the opinion, the Supreme Court of the United
States is a model for every appellate tribunal in
the country.
When the ideal of legal education shall be the
mastery of principles, so that the first impulse of
the lawyer in cases not depending upon local legis-
lation will be to find the “principle * and not the
“case ’’ that governs the matter in hand; when
arguments at the bar shall be mainly directed, first
to an ascertainment of the peculiar and controlling
facts of the case under consideration, and then to
pointing out the principles of law which apply to
this precise state of facts, each of which operations
requires the disciplined exercise of intellectual
qualities of a high order; when the bench shall be
constituted of the flower of the bar, and appellate
judgments shall not be given without a previous
conference of the judges at which the grounds of
the judgment shall be agreed upon before the record
is allotted for the opinion to be written; when opin-
ions shall be rigidly restricted, without unnecessary
disquisition and essay-writing, to the precise points
needful to the decision, we shall have an abler bar,
better judgments, and an improved jurisprudence,
in which erroneous and conflicting decisions will be
few, and reduced to the minimum.
And here I must close. My purpose in this and
, the preceding lecture has been to show that our sys-
tem of laws and jurisprudence is consonant with the
Lecture
VI.
The Su-
preme
Court of
the United
States a
model of
cxcellence.
How our
jurispru-
dence may
be im-
proved.
13
I94. LA WS AAWD 207P/SPRUDENCE.
Lecture
VI.
Advan-
tages
springing
from the
substan-
tial iden-
tity of the
English
and Amer-
ican sys-
tems of
law.
genius of our people and with our civil and political
institutions; that it is an outgrowth of them, and
powerfully supports and sustains them. It is, in its
ground-work, the system that prevails wherever, on
either continent, our language is spoken. In our law
libraries we find the learning and labors of judges
administering this system in law reports from India,
South Africa, Australia, New Zealand, the Dominion
of Canada, the Sandwich Islands, and the West In-
dies. All this is the heritage, by what I may call a
species of tenancy in common, of the English and
American lawyer, who wherever, within this wide
horizon, he finds his language spoken, finds also
individual and civil liberty, popular institutions, the
grand and petit jury, legislative assemblies, Magna
Charta, Habeas Corpus, equality before the law, the
same sacred regard for individual rights, the same
reverential affection for, and instinctive obedience
to law. What incalculable advantages ! We have
the same legal literature. We have the same legal
firmament, in which we behold Hale and Marshall,
Hardwicke and Story, Blackstone and Kent, Erskine
and Webster. We partake freely of the benefits of
the labors of each other. Whoever achieves any-
thing for the advancement or improvement of the
law, achieves it not for his own country alone, but
for all English-speaking and English-governed peo-
ples. My further purpose has been to show that
although this system is not without serious defects,
mostly, however, of form rather than of substance,
the remedy is not to substitute an alien system, but
to engraft the needed amendments and changes on
our own hardy, native stock.
- O Ú/ú Z.A VV ZAV / 7.S AVAE W AſOMAE. I95
The special duty of the American lawyer is, of
course, to improve and promote the laws and juris-
prudence of his own country. What great and
complex problems confront the American lawyer,
growing out of our vast territorial extent and our
distinct Federal and State systems of government
and jurisprudence; out of the changes wrought by
iron, steam, and electricity in business and all the
modes of communication and transportation ; out of
the combinations of capital almost without limit in
corporate form, affecting interests vital to individuals
and to society. The law has to be adapted to these
new situations and circumstances. What a weighty
work Truly it demands the most attentive study,
the most penetrating observation, the most sedate
consideration, the ripest judgment. Here will be
found work for all. We have laid, as I have at-
tempted to show, the foundations of a noble juris-
prudence, and during the two centuries of our
colonial and national life, the structure has been
carried along so as to meet contemporary wants
and needs. The work must, however, go forward
with the progress of the States and the nation.
What more generous ambition can inspire, what
higher duty can engage, the American lawyer than
to assist, in his day, in advancing this structure, and
adapting it, by alteration and enlargement, to the
changed and changing conditions of society; a work
which must ever go on, yet never be completed.
“Some unfinished window
In Aladdin’s tower
Unfinished must remain.”
Lecture
VI.
Duty of
the Amer-
ican bar to
improve
our laws:
its scope
and diffi-
culty.
Lecture
WII.
Written
constitu-
tions the
unique
feature of
American
legal insti-
tutions.
LECTURE VII.
OUR LAW IN ITS NEW Howe, – AMERICA; ITS ExPANSION,
DEVELOPMENT, AND CHARACTERISTICS IN THE POLITI-
CAL AND JUDICIAL SYSTEMs of THE UNITED STATEs,
AND HEREIN OF OUR WRITTEN Constitutions, THEIR
RATIONALE, LIMITATIONS, AND GUARANTEEs (CONCLUDED).
THE absolutely unique feature of the political
and legal institutions of the American repub-
lic is its written constitutions, which are organic
limitations whereby the people by an act of unpre-
cedented wisdom have, “in order to establish jus-
“tice, to promote the general welfare and secure
“the blessings of liberty to themselves and their
“ posterity,” protected themselves against themselves.
What renders this the more extraordinary is that
these constitutions are self-imposed restraints. The
spectacle is that of the acknowledged possessors of
all political power voluntarily circumscribing and
limiting the plenary and unrestrained use of it.
History affords many examples where the holders
of political power have been forced to surrender or
to curtail it for the general good; but the example
of the people constituting the American political
communities in limiting, by their own free will,
the exercise of their own power, stood alone when
this sublime sacrifice was made, and it has not been
OUR /A W //V /TS AWAE W HOME. I97
followed in any country in Europe, nor success-
fully put in operation elsewhere than in the United
States.' I said that in this way the people had pro-
tected themselves against themselves; and this they
have done by making the Constitution in reality
what, in its sixth article, it expressly declares itself
to be, namely, “the supreme law of the land, bind-
“ing the judges in every State, anything in the
“constitution or laws of any State to the contrary
“notwithstanding.” This latter purpose they accom-
plished by providing that the Constitution should be
interpreted and enforced by the judiciary as one of
the departments of the government established by
the Constitution, and that the judgment of the courts
thereon should be, if necessary, carried into execu-
1 Political and speculative writers there are in Europe who still
maintain that it is idle, unwise, or at any rate self-contradictory, for
the sovereign or supreme power in a State to put limits upon itself;
but more than a century ago the people of this country did restrain
the exercise of their own power by organic limitations upon all of the
organs of the State. The wisdom and general efficiency of this polit-
ical invention, for such it was, have been vindicated and established
by our long experience. The device — the idea — the political concep-
tion, if I may so term it — of written constitutions, belongs to the
statesmen who founded our political institutions. It is true, as the
late Professor Dwight has pointed out (“Political Science Quarterly,”
vol. ii., no. 1, March, 1887), that in Harrington’s “Oceana’’ appears
“the first sketch in English political science of a written constitution
limiting sovereign power; ” that he declared that government should
be an “empire of laws and not of men ; ” “ that the exercise of all
just authority over a free people ought (under God) to arise from
their own consent,” which is Jefferson’s exact phrase in the Declara-
tion of Independence; and doubtless true, also, it is, that Harrington's
writings were familiar to our statesmen a hundred years after Harring-
ton's death. At the very utmost, his speculations are but adumbra-
tions of the work which was conceived, put into form, and made an
actual, living, working reality by the great men who established
the political and legal institutions of the United States.
Lecture
VII.
The su-
preme law
of the
land.
I98 ZA WS AAWD 5'0E/SPAUDENCE.
Tuecture
WII.
Rationale
and pur-
poses of
written
constitu-
tions.
tion by the executive by the whole power of the
State."
The devices which our constitutions provide to
prevent precipitate action of the popular will are
single and simple in principle, but elaborate, though
not complex, in arrangement. They may thus be
grouped and shortly stated : (a) Three co-ordinate
departments, and the separation and distribution of
all of the powers of the government into these de-
partments, – each checking the other; (b) A system
of representation with a double chamber, — each a
check on the other; (c) The insertion of guarantees
of primordial and fundamental rights, – Magna
Charta enlarged and perfected, - into the Consti-
tution ; (d) Distribution of powers between the
States and the Federal Union ; and (e) An inde-
pendent judiciary, made the guardian of the Con-
stitution, with the crowning power and duty to
declare unconstitutional statutes to be void, - all
to the end that there may be secured “a govern-
ment of laws and not of men.””
1 United States v. Lee, 106 U. S. Rep., 196, 220, 1882.
* In the address of Rufus Choate, referred to below, the scheme of
our written constitutions, and the manner in which they protect and
secure all persons and all interests against the haste and passions of
the hour, are presented with surpassing force and eloquence. “Ad-
dresses and Orations of Rufus Choate ’’ (5th ed., Little, Brown, & Co.,
1877), p. 133. I refer to this subject more fully throughout this lec-
ture. I only add here that this system of checks and balances which
the framers of our government contrived, and which in its totality
constitutes our constitutions, has but the single ultimate purpose of
curbing the unfettered exercise of the popular will, and it demon-
strates how thoroughly they realized the dangerous and destructive
force of that will if it were not put under effective restraints. Unre-
strained, it would be (to borrow an illustration from Schiller) like
the path of the lightning or of the cannon ball : —
O OVA’ Z.A. W. ZAV / ZXS AVA, VV HO//Z. I99
Whatever rights and duties are enforced by the
State in its judicial tribunals are legal rights and
duties in the full sense of the term; these are truly
law." To have constructed our constitutions so as
to provide legal sanctions for their provisions was
the great, illustrious, beneficent, immortal, work of
the statesmen and lawyers who were their authors.
“I do not know,” said Rufus Choate, “that I can
“ point to one achievement in American statesman-
“ship which can take rank for its consequences of
“good above that single decision of the Supreme
“Court, which adjudged that an act of the legisla-
“ture contrary to the Constitution is void, and that
“the judicial department is clothed with the power”
— and he might have added, charged with the duty
– “to ascertain the repugnancy, and pronounce
“ the legal conclusion. That the framers of the
“Constitution intended this to be so is certain ;
“but to have asserted it against Congress and the
“executive, to have vindicated it by that easy
“yet adamantine demonstration than which the
“reasonings of mathematics show nothing surer,
to have inscribed this vast truth of conservatism
“Direct it flies and rapid;
Shattering that it may reach, and shattering what it reaches.”
If restrained, however, blessings attend its course, and it answers the
description that follows : — -
“But, my son, the road human beings travel,
That, on which BLESSING comes and goes, doth follow
The river's course, the valley’s playful windings;
Curves round the corn-field and the hill of vines,
Honoring the holy bounds of property
And thus secure, though late, leads to its end.”
“The Piccolomini,” Coleridge's translation, act i., scene iv.
1 See ante Lecture I.
Lecture
VII.
The legal
sanctions
of our con-
stitutions.
2OO ZA WS AAWD 5:07/ē/SPRUDENCE.
Lecture
VII.
Choate's
eulogium
thereon.
“upon the public mind, so that no demagogue, not
“in the last stage of intoxication, denies it, — this
“is an achievement of statesmanship [of the judi-
“ciary] of which a thousand years may not exhaust
“ or reveal all the good.”"
* Address, July 3, 1845, before the Harvard Law School in Cam-
bridge, Mass., on “The Position and Functions of the American Bar,
as an Element of Conservatism in the State.” “Addresses and
Orations of Rufus Choate ’’ (5th ed., Little, Brown, & Co., 1887),
p. 133. This is a notable production, not only for its literary excel-
lence, but as embodying the matured views of one of the most
eminent lawyers who have adorned the profession in this country.
The distinctive character as well as the importance of the doctrine
that the courts not only have the power but that it is their duty to
declare statutes in plain conflict with the Constitution to be void,
a doctrine no longer questioned, daily acted on, and now laid up
among the fundamentals of American jurisprudence, — justifies a his-
torical reference to the origin and development of this great principle.
The earliest case is Holmes v. Walton, referred to in State v. Park-
hurst, 4 Halstead (N.J.), 444, decided by the Supreme Court of New
Jersey in 1780. Virginia decided the same way in 1782 and 1788, -
Commonwealth v. Caton, 4 Call (Va.), 5, 1782; “Case of the Judges,”
Ib., 135, 1788, - and again in 1793 in Kamper v. Hawkins, 1 Va.
Cas. 20. So in principle in South Carolina in 1792, in Bowman v.
Middleton, 1 Bay (S. C.), 252. So in Rhode Island in 1786, in
Trevett v. Weeden, often though erroneously referred to as the
earliest case. See Cooley, “Constitutional Limitations” (4th ed.),
196; Bryce, “American Commonwealth,” vol. i., 532; Arnold, “His-
tory of Rhode Island,” vol. ii., c. 24. So in North Carolina in 1787,
Bayard v. Singleton, 1 Martin, 48; see Ogden v. Witherspoon, 2
Haywood, 227, 1802. So in Massachusetts in 1788, Bancroft, “His-
tory of the Constitution,” vol. ii., 473.
The views of contemporary statesmen and the early decisions,
State and Federal, are fully given by Judge Elliott in his valuable
article on “The Legislatures and the Courts : The Power to Declare
Statutes Unconstitutional,” “Political Science Quarterly,” vol. v.,
232–246. The question was put to rest in the Federal courts and
in effect in the State courts by the decision of the Supreme Court
of the United States in Marbury v. Madison, 1 Cranch, 137, 1803,
in which the opinion was given by Chief-Justice Marshall. This
is the “adamantine demonstration ” referred to by Mr. Choate in
the text. Of Marbury v. Madison, Chancellor Kent had previously
OOA L4 W IM /TS AWAE W HOME. 2O I
Other nations have what they call constitu-
tions or fundamental laws; England, for example.
But no provision is beyond the transcendent and
omnipotent power of Parliament. And therefore
De Tocqueville denied that England had in reality
a constitution. His striking passage on this subject
is : “The Parliament has an acknowledged right to
“modify the Constitution; as, therefore, the Con-
“stitution may undergo perpetual changes, it does
“not in reality eatist ; the Parliament is at once a
“legislative and a constituent assembly.” In the
American conception of the office and effect of a
constitution, De Tocqueville's criticism is formally
just. Belgium and France have written constitu-
tions, but since they practically have no legal
sanction, they are mere glittering declarations of
abstract principles of political morality or action,
said that it “approaches to the precision and certainty of a mathe-
matical demonstration.” 1 Com., 453. It deserves the high praise,
for this doctrine established in Marshall’s language, that ours was
“a government of laws and not of men.” “It lies,” as Mr. Hitchcock
well says, “at the very root of our system of government.” “Consti-
tutional History of the United States " (Putnam, 1890), p. 77. The
following is Mr. Justice Miller’s weighty comment thereon : “The
immense importance of this decision [Marbury v. Madison], though
in some respects obiter, since the court declared in the end that it had
no jurisdiction of the case, may be appreciated when it is understood
that the principles declared, which have never since been controverted,
subjected the ministerial and executive officers of the government, all
over the country, to the control of the courts, in regard to the execu-
tion of a large part of their duties. Its application to the very highest
officers of the government, except perhaps the President himself, has
been illustrated in numerous cases in the courts of the United States,
and in the reports of the Supreme Court. Perhaps one of the latest
and most instructive of these is the case of United States v. Schurz,
102 U. S Rep., 378.”. Ann Arbor Address, 1887; Miller on the Con-
stitution, p. 386. Carson, “Hist. Sup. Court U. S.,” chap. xiii.
Lecture
VII.
American
constitu-
tions dis-
criminated
from Eu-
ropean.
2O2 ZA WS AAWD # URISPRUDEAVCE.
Lecture
VII.
American
constitu-
tions
praised by
foreign
critics.
having no force except such as public opinion may
give them. They are not laws, since their restric-
tions and directions will not be enforced by the
courts.' We are told on good authority “ that
“during a period of more than fifty years no Bel-
“gian judge ever pronounced a parliamentary
“enactment unconstitutional,” and that “no French
“tribunal would hold itself at liberty to disregard
“an enactment, however unconstitutional, passed
“by the National Assembly, inserted in the ‘Bul-
“letin des Lois' and supported by the force of the
“government.”
Foreign statesmen and lawyers, after observing
the workings of our constitutions in this regard
for more than a century, at length join in praising
the wisdom of the American device. Thus, Pro-
fessor Dicey in his Oxford Lectures” on the “Law
of the Constitution,” says: —
“This system [the American system], which
“makes the judges the guardians of the Constitu-
“tion, provides the only adequate safeguard which
“has hitherto been invented against unconstitu-
“tional legislation.” “ “The glory of the founders
“of the United States is to have devised or adopted
“arrangements under which the Constitution be-
“came in reality as well as in name the Supreme
“law of the land.”"
1 See ante Lecture I.
2 Dicey, “The Law of the Constitution,” 2d ed. London, 1886,
lecture iv., p. 144.
8 1886.
* Lecture iii., p. 125.
5 Lecture iv., p. 145. “The distinguishing feature of our institu-
tions,” says Judge Sharswood, “is what we term Constitutional Law.
ovK ZAW Zw 17s wºn HOME. 2O3
us-
The great fundamental rights guaranteed by the
constitutions are life, liberty, contracts, and prop-
erty. The two former are everywhere respected
and protected by the legislatures and the courts. I
recall only one notable exception to this statement,
and that is found in the decision of the Supreme
Court of Pennsylvania, affirmed by the Supreme
Court of the United States, that the legislature
could constitutionally prevent a man from pursuing
what was, in fact, a lawful business, namely, the
manufacture and sale of Oleomargarine. I have
commented on this elsewhere.' But we cannot close
There are and have been constitutions, written and unwritten, organic
or fundamental laws. But in all of them, so far as I know, the fun-
damental laws thus established have no sanction beyond the oath of
those intrusted with the administration of them, the force of public
opinion, and the responsibility of the representative to his constituent.
With us the fundamental laws are, in the strictest sense of the words,
leges legum. The vital principle of our system is that the act of the
legislative body, contrary to the power confided to it by the constitu-
tion, is a nullity and absolutely void. The courts must so pronounce,
and the executive must enforce their judgments with the whole force
of the State. The judiciary is thus necessarily an important branch
of the government. Our Bills of Rights are, therefore, not mere
enunciations of abstract principles, but solemn enactments by the
people themselves, guarded by a sufficient sanction.” Sharswood,
“Law Lectures,” lecture i., p. 23.
1 Dillon, “Municipal Corporations,” 4th ed., vol. i., p. 211, note. I
there said: “We cannot but express our regret that the constitution of
any of the States, or that of the United States, admits of a construc-
tion that it is competent for a State legislature to suppress (instead
of regulating) under fine and imprisonment the business of manufac-
turing and Selling a harmless, and even wholesome, article, if the
legislature chooses to affirm, contrary to the fact, that the public
health or public policy requires such suppression. The record of the
conviction of Powell for selling without any deception a healthful and
nutritious article of food makes one’s blood tingle.” I appreciate, of
course, the difficulties in the way of the courts when asked to disregard
the false recital in the legislative act, and I recognize the further fact
Tuecture
VII.
Funda-
mental
guaran-
teeS.
2O4. A WS AAWD 520/R/SPA’UDEAVCAE.
– rºs
our eyes to the fact that to some extent the invio-
lability of contracts, and especially of private prop-
erty, is menaced both by open and covert attacks.
Property is attacked openly by the advocates of the
various heresies that go under the general name
of socialism or communism, who seek to array the
body of the community against individual right to
exclusive property, and in favor of the right of the
community in some form to deprive the owner of it
or of its full and equal possession and enjoyment.
Property, or the full measure of its rightful enjoy-
ment, is also covertly invaded, not by the socialist,
but at the instance of a supposed popular demand ;
in which case the attack is directed against particu-
lar owners or particular forms of ownership, and
generally takes the insidious, more specious, and
dangerous shape of an attempt to deprive the own-
ers — usually corporate owners — of their property
by unjust or discriminating legislation in the exercise
of the power of taxation, or of eminent domain, or
of that elastic power known as the police power, —
such legislation resulting, and intended to result, in
“clipping” the property, or “regulating” the owner
out of its full and equal enjoyment and use. Among
the people of our race the era of the despotism of
the monarch or of an oligarchy has passed away.
If we are not struck with judicial blindness we can-
not fail to see that what is now to be feared and
Lecture
VII.
Attacks on
private
property.
that the courts cannot supply a panacea for legislative misdoings;
but still I think that invasions of fundamental rights, such as the
right to pursue what is in fact a lawful business, ought not to be
dependent upon the epithets with which a legislative majority may
see fit to characterize it.
OOWA’ CA VV ZAZ / 7.S AWAE Wº HO//Z. 2O5
guarded against is the despotism of the many, -
of the majority. Speaking of Great Britain, Sir
Frederick Pollock recently said that “at no time
“has it been fitter for us to be put in mind that the
“effective power of law is not only the work but the test
Lecture
VII.
“of a civilized commonwealth, and that law, as a great
“English writer has said, is in its nature contrary
“to such forces and operations as are ‘violent and
“casual.’” "
The statesmen who founded and shaped our
democratic, or more accurately speaking repub-
lican, institutions, were fully alive to these great
truths. They were neither visionaries nor social-
ists.” It is among the eternal lessons of history,
1 Oxford Lectures and Other Discourses, London, 1890, lecture
iv., p. 100. So, before the kingly office was separated from the judi-
cial office, David prayed ; “Give the King thy judgments, O God, that
they may come down like rain into a fleece of wool, even as the drops
that water the earth; ” that is to say, gently like the fertilizing rain,
and not violently like the destructive deluge. Psalm bºxii., version of
the English Prayer-Book.
* They were really English Whigs of the Chatham and Burke
school. The contest with England did not originate in any senti-
mental or speculative notions of the rights of man, or in any
hostility to monarchy or the form of the English government. The
Colonies made but a single issue, – namely, that they ought not
to be taxed by a Parliament in which they were not represented.
This contest began and was settled years before the French Revo-
lution, and had nothing in common with it. The colonists claimed
nothing but English liberties, and wanted nothing beyond Magna
Charta. It was a contest for English liberties. So they regarded
it, and so it was regarded by their friends and supporters in Eng-
land. Thus, in Burke's address to the King occurs the passage on
the subject, which Lord Grenville said “was the finest that Burke
ever wrote, – perhaps the finest in the English language, –- begin-
ning, ‘What, Gracious Sovereign, is the empire of America to us, or
the empire of the world, if we lose our own liberties?’” “Life of Sir
James Mackintosh ’’ (American Ed., Little, Brown, & Co., 1853, vol. ii.,
The wis-
dom of the
founders
of our in-
stitutions.
2O6 M.A WS AAWD 207P/SPRUDENCE.
Lecture
WII.
Restraints
on popular
power
necessary.
which they well knew, that the mass of the people
were subject to the influence of supposed temporary
interests and of “violent and casual forces" which
might be in conflict with their own vital and per-
manent well-being.
Burke, perhaps the deepest and wisest political
thinker of any age, speaking on this subject, says:
“Society requires not only that the passions of
“individuals should be subjected, but that even in
“the mass and body, as well as in the individuals,
“ the inclinations of men should be thwarted, their
“will controlled, and their passions brought into
“subjection. This can only be done by a power
“out of themselves, and not in the exercise of its
“function subject to that will and to those passions
p. 475). The colonists had the English love of precedents, and
rebelled according to English forms. As in the English Revolution
James II. was declared to have “abdicated,” so curiously enough in
the indictment of George III., which the Declaration of Independence
really is, they asserted that he “has abdicated his government here by
declaring us out of his protection and waging war against us.” Sin-
gular abdication that of a king who was at the time fighting his
accusers with his combined armies and navies There was, indeed,
no choice, but there was no general inclination to found the new
governments upon any other basis than the Sovereignty of the peo-
ple. The perils as well as the advantages of this form of gov-
ernment, unless the direct exercise of popular power should be
restrained, were anxiously felt. This was the great problem to be
solved. And in this consists the whole rationale of written con-
stitutions and of the checks and limitations of which the consti-
tutions essentially consist. They did not believe men to be angels,
but very human. Accordingly the constitutions which they builded
are, as Professor Bryce forcibly puts it, “the work of men who
believed in original sin, and were resolved to leave open to trans-
gressors no door which they could possibly shut,” with the result
that the constitutions they established, “if regarded simply in their
legal provisions, were the least democratic of democracies.” Bryce,
“The American Commonwealth,” vol. i., pp. 299, 300.
O OVR ZA WZ //V / TS AWE W AſOME. 2O7
“ which it is its office to bridle and subdue. In this
“sense the restraints on men, as well as their liberties,
“ are to be reckoned among their rights.”.” Realizing
these truths and the necessity of safeguarding these
vital and permanent interests, the founders of our
political and legal institutions originated — and the
device is, as I have said, the crowning proof of
their wisdom — the American polity of constitu-
tional restraints upon all of the departments of the
governments which the people established.
All of the original States in their first constitutions
and charters provided for the security of private
property, as well as of life and liberty. This they
did either by adopting, in terms, the famous thirty-
ninth article of Magna Charta which secures the
people from arbitrary imprisonment and arbitrary
spoliation, or by claiming for themselves, compen-
diously, all of the liberties and rights set forth in
the Great Charter.” I make this statement as to the
action of the original States after a careful exami-
nation of their charters and constitutions. On the
admission into the Union of subsequent States, the
constitution of each contained similar provisions.
When the Federal Constitution was formed there
was inserted in it the provision, also original and
* Burke's Works, American Ed. (Little, Brown, & Co.), “Reflec-
tions on the Revolution in France,” vol. iii., p. 310.
* All of the constitutions of the forty-four States contain like pro-
visions. Mr. Bryce, in his chapter on the “Development of State
Constitutions ° (“American Commonwealth,” vol. i., chap. xxxviii.),
did not fail to perceive that “they show a wholesome anxiety to pro-
tect and safeguard private property in every way. . . . The only
exceptions to this rule are to be found in the case of anything
approaching a monopoly, and in the case of wealthy corporations.”
Lecture
VII.
Provisions
of the
early con-
stitutions
securing
life, lib-
erty, and
property.
Of the
Federal
constitu-
tion.
2O8 ZA WS AAWD 70/A/SPA’UDAEAVCE.
Lecture
VII.
The Fifth
Amend-
ment.
unique, “that no State shall pass any law impairing
the obligation of contracts.” "
The Fifth Amendment, inter alia, ordained that, —
“No person shall be deprived of life, liberty, or prop-
“erty, without due process of law ; nor shall private
“property be taken for public use without just compen-
“sation.”
This was not new language, or language of uncer-
tain meaning. It was taken purposely from Magna
Charta. It was language not only memorable in
its origin, but it had stood for more than five cen-
turies as the classic expression and as the recognized
bulwark of “the ancient and inherited rights of Eng-
lishmen " to be secure in their personal liberty and
in their possessions.” It was, moreover, language
which shone resplendent with the light of universal
justice; and for these reasons it was selected to be
put into the Fifth Amendment of the Federal Con-
stitution, as it had already been put into the charters
and constitutions of the several States. Thus we
see a general, fixed, and settled purpose in both the
State and Federal constitutions to protect and secure
personal liberty, contracts, and private property.
1 Art, I., § 10. Encroachments from the general government were
feared, and this fear led to the speedy adoption of the first amend-
ments to the Constitution. Justice Miller, in the Slaughter-House
Cases, says: “The adoption of the first eleven amendments to the
Constitution, so soon after the original instrument was accepted, shows
a prevailing sense of danger at that time from the Federal power.”
These amendments were promised and insisted upon. “I hope,” said
Jefferson, “that a Declaration of Rights will be drawn up to protect
the people against the Federal government, as they are already pro-
tected in most cases against the State government.”
* Burke, Vol. iii., “Reflections on the Revolution in France,”
pp. 272, 273, American Ed. (Little, Brºwn, & Co.),
OUR LA W IM ITS AWEW HOME. 209
With these guarantees, – life, liberty, the invio-
lability of contracts and the sacredness of private
property, — the republic set out on its untried
course. One hundred years and more have vin-
dicated the necessity and demonstrated the wisdom
of these organic limitations. Their value is no
longer a matter of speculation or conjecture, but
of history. -
The result of the provision ordaining contracts to
be inviolable has been, says Mr. Justice Miller,” “to
“make void innumerable acts of State legislatures,
“intended in times of disastrous financial depression
“ and suffering to protect the people from the hard-
“ships of a rigid and prompt enforcement of the
“law in regard to their contracts, and to prevent the
“States from repealing, abrogating, or avoiding by
“legislation contracts entered into with other par-
“ties.” Hundreds of acts of State legislation have
been declared void under this clause by the Su-
preme Court, and repudiation, whether intended
or unintentional, with its consequent dishonor,
has been prevented. Who is not glad that the
States, or the people of the States, have not had
the power to destroy or impair contracts 2
So, likewise, the provisions in the State and
National Constitutions protecting private property
have up to this time been effective. If disregarded
by the legislature, they have been enforced by the
courts, – the Constitution being the supreme law
These have been, indeed, the great triumphs of our
popular system of government, for these were sup-
* Michigan, Ann Arbor, Address, 1887; Miller on the Constitution
of the United States, p. 393. Pf.
Lecture
VII.
Efficiency
of consti-
tutional
limitations
in protect-
ing con-
tracts and
property.
14
2 IO LA WS AAWD 520/R/SPA’UDEAVCE.
Lecture
VII.
Successful.
workings
of our con-
stitutions.
posed to be its vulnerable spots. Disbelievers in
republican institutions had predicted early ship-
wreck on these rocks, and when it came not, they
simply postponed the period of fulfilment."
1 Thus Alison, in his famous chapter xc. of “History of Europe,”
published in 1839–1842, after referring to the universal and equal
suffrage which prevails in the United States, says: “As a natural con-
sequence of this state of things, there is, in opposition to the will or
passions of the majority, no lasting security either for life or property
in America, in cases where the public mind is vehemently excited.
Hitherto, indeed, no direct attack on property has been made, - at least
where it is vested in land, - for this simple reason, that the majority
are themselves landowners, and therefore any such system would be
an attack upon their own interests. But the system of spoliating that
species of property in which the majority do not participate, and for
which they feel no sympathy, has already been carried to a most
frightful extent. . . . The determination now openly acted on in
many of the States, particularly Arkansas, Illinois, and the demo-
cratic communities in the valley of the Mississippi, and even in the
great and opulent commercial State of Pennsylvania, to repudiate
their State debt and shake off the burden of their public creditors,
after they have experienced the full benefit of their capital by expend-
ing it on railroads, canals, and other public improvements, is another
example of the incipient spoliation of the fund-holders. Their prop-
erty of all kinds has undergone the most violent attacks in America,
except that in land, which, from its diffusion, was protected by the
interests of the majority. But the period of danger to them is post-
poned only, not averted. The period when the attack on landed
property, if the present system of government continues, will com-
mence, may be predicted with certainty. It will be as soon as the
majority of electors, in any of the States, have come, from the natural
growth of other trades, to be persons without any interest in the soil,
and when the back settlements have become so distant by the advance
of civilization that it is less trouble to take their neighbors’ fields
than to go to the far West and seek possessions of their own. This
is nothing peculiar to America; in every country in the world the
majority, under similar circumstances and similar political institu-
tions, would do the same.” (Chap. x.c., paragraph 64.)
“The rapidity with which the growth of landed estates has begun
and progresses; the immense extent of the latifundia ; the approach-
ing exhaustion of available soil, - that seemingly inexhaustible treas-
ure; the increase of tenant farmers; the appearance of the agrarian
OOA LA W WAV / TS AWAE W HOME. 2 II
These prophecies have happily hitherto proved
false, — so historically and signally false that as
strong an unbeliever in popular government as Sir
Henry Maine, speaking of the American Union and
its unexampled career, was constrained, in 1885, to
confess and declare that, —
“All this beneficent prosperity reposes on the sacred-
“ness of contract and the stability of private property;
“ the first the implement, and the last the reward, of
“success in the universal competition.” "
For this frank and candid utterance of a truth
which forced itself upon his convictions, I forgive
all his doubts as to the success of popular govern-
ment, and cancel the remembrance of his dismal
forebodings.
Then came, as a result of the Civil War of 1861–
1865, the Fourteenth Amendment of the Federal
Constitution, adopted in 1868, which, among other
things, ordained, -
SECTION 1. “Nor shall any State deprive any
“person of life, liberty, or property, without due pro-
“cess of law ; nor deny to any person within its
“jurisdiction the equal protection of the laws.”
It was of set purpose that its prohibitions were
directed to any and every form and mode of State
action — whether in the shape of constitutions, stat-
utes, or judicial judgments — that deprived any
person, white or black, natural or corporate, of life,
liberty, or property, or of the equal protection of the
question; the radical and socialistic character of the remedies proposed,
— these things all show an alteration of the ancient basis on which
the political fabric [of the United States] was erected.” M. Boutmy,
T“Studies in Constitutional Law,” 1888. See ante Lecture I.
* Essay on Popular Government, p. 51 (American Ed.).
Tlecture
VII.
Sir Henry
Maine's
opinion as
to the
basis of
American
prosperity,
The Four-
teenth
Amend-
ment to
the Fed-
eral Con-
stitution.
2 I 2 ZA WS AAWD 7&WR/SPACOZ) FAWCE.
Lecture
VII.
The value
of the
Four-
teenth
Amend-
lment.
laws. Its value consists in the great fundamental
principles of right and justice which it embodies and
makes part of the organic law of the nation. No
person is wise enough to foresee the beneficence of
the future operation of these principles if the courts
are true and firm in maintaining this amendment in
its full scope and purpose. I believe it will here-
after, more fully than at present, be regarded as the
American complement of the Great Charter, and be
to us — as the Great Charter was and is to England
— the source of perennial blessings."
The Fourteenth Amendment, while it does not de-
prive the States of their autonomy or of their power,
subject to the Federal Constitution, to regulate their
domestic concerns, does nevertheless in the vital
matters specified in that amendment operate as an
* Speaking of Magna Charta, Sir James Mackintosh has an eloquent
passage, which I quote: “It was,” he says, “a peculiar advantage that
the consequences of its principles were, if we may so speak, only dis-
covered gradually and slowly. It gave out on each occasion only
so much of the spirit of liberty and reformation as the circumstances
of succeeding generations required, and as their character would safely
bear. For almost five centuries it was appealed to as the decisive
authority on behalf of the people, though commonly so far only as the
necessities of each case demanded. Its effect in these contests was
not altogether unlike the grand process by which nature employs
snows and frosts to cover her delicate germs and to hinder them
from rising above the earth till the atmosphere has acquired the mild
and equal temperature which insures them against blights. . . . Her
Bacons and Shakespeares, her Miltons and Newtons, with all the
truth which they have revealed, and all the generous virtue which
they have inspired, are of inferior value when compared with the subjec-
tion of men and their rulers to the principles of justice.”
By the Great Charter, says Stubbs, “the barons maintained and
secured the right of the whole people as against themselves as well as
against their master. . . . The whole constitutional history of Eng-
land is little more than a commentary on Magna Charta. “Constitu-
tional History of England,” vol. i., chap. xii., pp. 596, 597.
O ZVA’ ZA PV ZAV / 7.S AWAE V12" AſO/A2. 2 I 3
v-
express limitation upon the powers of the States. It
puts life, liberty, and property, upon precisely the
same footing of security. It binds them each and all
indissolubly together. It places each and all of these
primordial rights under the aegis and protection of
the national government. By this provision they are
each and all adopted as national rights. Under the
Fifth Amendment they are each protected from inva-
sion by Congress or the Federal government. By
the Fourteenth Amendment they are each protected
from invasion by State legislatures, or by the people
of the States in any form in which they may attempt
to exercise political power. If these rights are not
safe and secure, it is because, and only because, of the
essential infirmity of constitutional limitations of the
most peremptory character. This we cannot admit.
The Fourteenth Amendment in the most impressive
and solemn form places life, liberty, contracts, and
property, and also equality before the law, among
the fundamental and indestructible rights of all the
people of the United States.
It sets the seal of national condemnation upon
Proudhon's famous maxim that “property is theft.”
(La propriété cest le vol) : “Property-holders are
thieves.” This pernicious doctrine has hitherto
found no general acceptance among our people or
their legislators; and under the Constitution as it
now stands this doctrine can obtain no foothold as to
any species of property, - if the courts are faithful
to their high trust as the guardians and defenders of
the Constitution. Bear in mind ever that this, like
all other provisions of the Constitution, was put into
the Constitution “to be enforced by the judiciary as
Lecture
VII.
The scope
and pur-
posés of
the Four-
teenth
Amend-
ment.
Its protec-
tion to
property.
214 ZA WS AAWD jº/R/SPACUDEAVCE.
Lecture
VII.
Duty of
the bar
and the
judiciary
to uphold
the Con-
stitution.
One of the departments of the government estab-
lished by the Constitution.”" The value, however,
of these constitutional guarantees wholly depends
upon whether they are fairly interpreted, and justly
and with even hand fully and fearlessly enforced by
the courts.
In view of these considerations, you must permit
me to say that in my judgment the great, paramount,
overshadowing duty of the legal profession in this
country is to defend, protect, and preserve our legal
institutions unimpaired and in their full efficiency.
If there is any problem which can be said to be yet
unsettled, it is whether the bench of this country,
State and Federal, is able to bear the great burden
of supporting under all circumstances the fundamen-
tal law against popular, or supposed popular, de-
mands for enactments in conflict with it.” It is the
loftiest function and the most sacred duty of the
judiciary, - unique in the history of the world, –
to support, maintain, and give full effect to the Con-
stitution against every act of the legislature or the
executive in violation of it. This is the great jewel
of our liberties. We must not, “like the base
Judean, throw a pearl away richer than all his
tribe.” This is the final breakwater against the
1 United States v. Lee, 106 U. S. Rep., 196, 220, 1882.
2 See comments of Professor Dicey on Munn v. Illinois and the
Legal Tender Cases. “In no country has greater skill been expended
in constituting an august and impressive national tribunal than in the
United States. Moreover, the guardianship of the Constitution is
confided not only to the Supreme Court, but to every judge through-
out the land. Still it is manifest that even the Supreme Court can
hardly support the duties imposed upon it.” “Lectures on the Law
of the Constitution,” lecture iv., p. 163.
O UAE Z.A. W. ZAV / 7.S AVAE W AſO.M.A. 2 I 5
= −
haste and the passions of the people, – against the
tumultuous ocean of democracy. It must at all
costs be maintained. This done, and all is safe ;
this omitted, and all is put in peril and may be lost."
If these observations are at all timely, if they have
aught of value, and especially if they shall excite
further thoughts upon the important subjects which
I have touched in such an imperfect way, I shall
have accomplished all that I sought, and more than
I timidly dare to hope. “I shall then,” — I use in
closing, slightly changed, the quaint and curious
reflections of an old writer on the laws of England,
– “I shall then, with the vanity of an author, com-
“pare myself to one who in his travels over a bleak
“ and dreary country has picked up some plants,
“which he afterwards transfers to some delightful
“Spot, in a milder climate, where they may attract
“notice, even among more agreeable productions, by
“those who would never have visited them on their
“native soil. And if after all they should have any
“medicinal virtues useful in life, they will be wel-
“come, wherever they may be made to grow.”
* Judge Cooley, the eminent author of “Constitutional Limita-
tions,” in an address to the bar of South Carolina in 1886, uttered
these Wise and weighty words: “ The habit of mind which con-
sents to the doing of constitutional wrong, when it is supposed
Some temporary good may be accomplished, should be recognized
as a foe to constitutional limitations and Securities, and which there-
fore, at any cost, must be corrected.”
* “Eunomus, or Dialogues concerning the Law and Constitution
of England,” vol. i., - Essay on Dialogue, p. x.c., dated 1767, written
by Edward Wynne, Barrister-at-Law.
Lecture
VII.
Conclud-
ing ob-
ServationS.
Lecture
VIII.
Character-
istics of
our law.
LECTURE VIII.
OUR LAW, - ITS ExCELLENCES AND DEFECTs. – DOCTRINE OF
JUDICIAL PRECEDENT AND ITS ConsequENCEs. – CASE-LAW
AND ITS UNEVEN DEVELOPMENT. UNFORTUNATE SEPARA-
TION OF LEGAL AND EQUITABLE RIGHTS AND REMEDIES.
— UNSATISFACTORY CONDITION OF OUR LAW OF REAL
PROPERTY.
IN the earlier lectures of this course I considered
our law in its old home, and noticed some of
its distinguishing characteristics. In subsequent
lectures I considered our law in its new home, –
that is to say, its expansion and development in the
political and judicial systems of the United States.
This development we saw to be a vast extension
of the area of the common law, with modifications
adapting it to our special situation and circum-
stances, without, however, changing its generic and
essential character. Generally speaking, we found
the system of English and of American law to be
substantially the same. Having thus surveyed in
its great outlines the general field of English and
American law, I come in this lecture to consider
more in detail its general excellences and its spe-
cial defects. These defects, however, will be found
to be mainly the defects of its good qualities.
No observant person can pass from State to State,
from one section of our country to another, without
O OVA’ Z.A. 17” ... I 7'S CA/A A' A C 7'Aº AºAS 7/CS. 217
noticing that although we are a homogeneous people,
having the same traditions, language, institutions,
and aspirations, yet that there are local peculiarities
in almost every State or section growing out of
the circumstances of its early settlement or history.
The people of New England are easily distinguish-
able from those of New York, and these again from
those of Pennsylvania. The Jerseyman has a local
flavor. The Western man differs in some respects
from the Eastern, and both differ in other respects
from the men of the South. And there are local
peculiarities among the people of the Southern
States. These subordinate diversities are fortu-
nate. They tend to prevent centralization, and
to foster and sustain local pride and local govern-
ment; and local self-government, it cannot be too
often enforced, is the true and the only solid basis
of our free institutions. A jealous State pride and
watchfulness in all that justly belongs to the State,
and a dominating national pride and concern in
all that justly belongs to the nation, are the valid,
healthful, and recognized sentiments of American
citizenship and patriotism. à
The American lawyer has to deal with problems
which are more than ordinarily complicated by the
existence of two governments exercising authority
over the same territory and people, and largely, at
times, over the same subject-matter. But this is
unavoidable unless the frame-work of our govern-
ment is to be changed, the autonomy of the States
destroyed, and all power collected at the centre.
Few, if any, are so rash as to advocate such changes,
and we all cherish the conception of a nation founded
Lecture
VIII.
Local di-
versities
and their
beneficial
effects.
Complex-
ity arising
from our
dual gov-
ernmentS.
2 I 8 ZA WS AAWD 70A:/SPA’ODAEAVCE.
Lecture
VIII.
The States
form an
effective
bulwark
against
centrali-
Zation.
upon the indissoluble union of indestructible States,
the largest and the smallest being alike protected
and secure. ...”
A few years ago I had occasion to visit Block
Island, which, although situated in the Atlantic
Ocean, is part of the State of Rhode Island. I
was going thither to argue by appointment a cause
before one of the justices of the Supreme Court of
the United States. Some of the counsel in the cause
had come within the previous thirty hours on a
limited train more than a thousand miles. As our
vessel passed the invisible boundary-line of Con-
necticut into the broad Atlantic, we saw the waves
of the ocean as they broke on the shores of the
little State of Rhode Island. Little indeed, geo-
graphically, since it has but five counties; and
it contains less than five hundred thousand peo-
ple, of whom two hundred thousand live in the
single county of Providence. On its north and
east is the ancient and honorable Commonwealth
of Massachusetts; on its west the comparatively
large State of Connecticut; and on its south,
almost within range of a modern cannon-shot, is
Montauk Point, the eastern terminus of what is
fitly called the Empire State, containing six millions
of people, and whose territory in its imperial reach
stretches seven hundred miles to the westward till it
meets the great lakes of Ontario and Erie. There
before our eyes was the little State of Rhode Island.
Unlike Switzerland, no Alpine ranges of mountains
stand there, faithful and indestructible, to sentinel,
guard, and preserve her. The open sea washes her
coasts and penetrates to her very heart. What
OUR LA W. 17:S CHARACTERISTICS. 2 I9
Providence could there be in this facile and fatal
exposure to powerful neighbors? But there she
was, as there she had been for more than a hundred
years. What had so long preserved her existence
and integrity ? Armies and vessels of war she had
none; and yet there she was as safe as England
guarded by her royal navies and “encompassed by
the inviolate sea.” Fortunate nation composed of
States which stand as an impassable bulwark against
dangerous centralization, and which are all and alike.
equally secure, because over all alike and equally is
the aegis of the Constitution.
While we all rejoice in the nation's greatness and
promise for the future, we cannot overlook the fact
that out of our rapidity of growth, out of our vast
extent of territory, out of the universal right of suf-
frage, and out of our dual system of government,
State and Federal, and the corresponding legislative
and judicial systems, arise causes which operate
to produce a complicated and in some respects an
imperfect system of laws and jurisprudence; and
that these originate problems of great difficulty for
solution by statesmen, legislators, and lawyers.
We have to deal with the situation as it is. The
people of forty-four States are legislating for them-
selves in respect of subjects over which the National
Government has happily no control. With forty-
four State courts of last resort and as many Federal
courts sitting within these States and largely exer-
cising a concurrent jurisdiction over the same people
and the same subjects, the development of a har-
monious and symmetrical system of jurisprudence is
attended with unusual difficulties. Conflict of opin-
Lecture
VIII.
Causes
which pro-
duce intri-
cate and
difficult
legal prob-
lems in the
country.
Effect of
the au-
tonomy of
the States
OI] Oll]"
legal sys-
tem.
22O ZA WS AAWD jº/R/SPRUDEAVCE.
ion is inevitable, and there is no common, superior
tribunal, except in a limited class of cases involving
Federal questions, – that is, questions arising under
the Federal Constitution, treaties, and acts of Con-
gress, which may go to the Supreme Court of
the United States for authoritative settlement. It
must be confessed that the legal profession in this
country has done as yet but little thorough work in
remedying those defects in our laws which admit of
it. Mainly these must be studied, cultivated, and
improved within and through the several States."
But State lines for commercial and social purposes
have almost disappeared. Our merchants buy and
sell goods, our people make contracts and engage in
business of all kinds, without much, if any, reference
to State boundaries and State citizenship. By means
of our rivers and lakes, and especially our railways,
the most distant parts of our country are nearer to
Washington or New York than these cities were to
each other fifty years ago.
Let us glance for a moment at the effect, actual
and probable, of the rapid means of travel and
communication supplied by our railway and tele-
graph systems upon the practice of our profession
and ultimately upon the character of our laws.
Lawyers have ceased to be provincial, and the
freedom of intercourse between all sections of the
country cannot fail to strengthen the tendency to
assimilate our laws and jurisprudence and make
them more uniform. Formerly causes were argued
in the Supreme Court at Washington largely by
members of the local bar of that city, Baltimore,
Lecture
VIII.
Effect of
railway
and tele-
graphic
communi-
cation
upon our
laws.
1 See ante Lecture V.
OOW/t 7.4 W. ZTS CHA A' A CTAEA’AST/CS. 22 I
and other places near at hand, and by distinguished
lawyers who were members of Congress. The local
counsel, except in cases of great importance, were
not accustomed to follow their causes to Washing-
ton. Before the introduction of railways, the jour-
ney to the capital was difficult, wearisome, and
time-consuming. Mr. Justice Story's letters show
that in his time it required the greater part of two
weeks to make the dreaded journey from Washing-
ton to Boston." As a rule, counsel from all parts of
the country now attend their cases to the Supreme
Court. This is as it should be, since, everything
else being equal, the counsel who have tried the
cause below are better qualified to argue it above
than counsel who are first engaged after the appeal.
Besides, it brings the court into contact with the
bar of the country at large, to the manifest advan-
tage of both.
As illustrative of the changed condition in the
practice of the law resulting from the ease and
rapidity of railway travel, you may be interested in
the following extract from a letter written to me by
a leading lawyer of St. Louis, now the Secretary of
the Interior.” Of three cases which he named, he
says: “To get and serve an injunction in the first,
“I travelled sixteen hundred miles. To argue the
“second at Denver, I travelled both ways two thou-
1 Mr. Justice Story writing to his wife, March 12, 1812, from
Washington, says: “It will probably take me twelve days to reach
home after I set out on the journey.” “Life and Letters of Joseph
Story, edited by his son, William W. Story,” Little & Brown, Boston,
1851, vol. i., p. 219. The same journey is now made without change
of cars in less than twelve hours. -
2 The Hon. John W. Noble.
Lecture
VIII.
Effect of
railways
and tele-
graphs
upon the
practice of
the profes-
Sion.
222 JA WS AAWD AC/R/SPACODAEAVCE.
Lecture
VIII.
Illustra-
tions.
Further
illustra-
tions.
“sand miles. In the Bank case I also travelled two
“ thousand the last trip, and had previously travelled
“in the same case over four thousand miles. At
“Denver I met a judge of the Federal Court, and
“also lawyers, who had travelled further than I.
“How striking the contrast,” he adds, “with the
“practice in the old times.” When I was a Federal
circuit judge in a circuit which embraced seven
States, and which extended on the north from the
international boundary-line between the United
States and the Dominion of Canada to Louisiana
on the south, and from the Mississippi on the east
to the Rocky Mountains on the west, I habitually
travelled more than ten thousand miles every year,
and my successor did the same. And within the
last few years, I have, in the practice of my profes-
sion, been called upon to argue cases in Iowa,
Missouri, Kansas, North Carolina, Michigan, Illi-
nois, and other States often more than a thousand
miles from my residence; and I know lawyers in
New York and elsewhere who go to places equally
distant whenever their professional business re-
quires it.
You will perhaps excuse my reading the follow-
ing leaf from my own experience, since it exhibits
in a somewhat striking manner, as it seems to me,
the conditions under which modern American law-
yers practise their profession.
A few years ago a cause arose in New Mexico
which involved the ownership of a line of railway
from Yuma to El Paso, extending through Arizona,
New Mexico, and part of Texas. On the one side
lawyers from New York and elsewhere went in a
O (7/8 AEA IV: Z 7.S. CA/ARA CTAE A*/S 7TWC.S. 223
special car twenty-five hundred miles to Santa Fé,
the place of trial. I had arranged a telegraphic cir-
cuit, and had sent over the wire to the local coun-
sel the text of the entire bill of complaint. On
arriving there our car, which contained a parlor,
dining-room, sleeping apartments, and a kitchen,
was placed upon the side track of our railroad and
served as a hotel; and immediately opposite to us,
on another railroad, we saw a like car containing
the opposing counsel who had journeyed nearly two
thousand miles from the West. There, in the heart
and centre of the continent, in the shadow of the
Rocky Mountains, in the old historic city of Santa
Fé, which was founded more than two generations
before the “Mayflower" landed at Plymouth, and
more than one hundred years before the first Eng-
lish colony sailed into the Ashley River, were these
two movable habitations, one of which had come
from the Atlantic and the other from the Pacific,
drawn up, as it were, in battle array. In an adobe
building, one story high, with walls six feet thick,
which had been the governor's palace under the
Mexican régime, and which our government had
converted into a court-house, with the old Baldy
Mountain, scalped and uncovered, standing in silent
majesty and stately grandeur, looking down upon
us, we fought for six long midsummer days our legal
battle. We fought like lawyers long and well, -
that is, earnestly contesting every inch of ground,
but with mutual respect and courtesy, and then
departed, the one party to the east and the other
to the west, leaving our troubles behind us, or
rather having unloaded them on the court.
Lecture
VIII.
Effect of
railways
and tele-
graphs
upon the
practice of
the law.
224 ZAWS AWD jºur/SPRUDENCE.
Tuecture
VIII.
Effect on
OUl]' 118- .
tional
unity.
Merits of
our legal
polity :
law is
every-
where
Supreme,
and arbi-
trary
power
nowhere
exists.
I have referred to this in order to observe that
in no other country on the globe would a similar
experience be possible, nor would it have been pos-
sible in this country prior to the building of our
transcontinental railways." A legislature in a State
twenty-five hundred miles distant being about to
adjourn, I telegraphed within a short time past the
text of an act of great moment to my client, and
the same was enacted within three days thereafter.
Marshall's judgments and our lines of railway and
telegraph have done more than any other visible
agencies in making and keeping us one united na-
tion. Let us now pass to the special subject of
this lecture, — the excellences and the defects of
the English and American systems of law, which
I shall consider somewhat more in detail than I
have heretofore done.
First, and briefly referring to the merits of these
systems of law, I observe that the distinguishing
excellence of the English Constitution and system
of laws is that under it law is everywhere through-
out English institutions and polity predominant and
supreme. This, bear in mind, is not only the spirit
but the very essence of the Constitution and legal
institutions of England. Professor Dicey's excellent
work, the “Law of the Constitution,” was written
mainly to bring out, illustrate, and enforce this
truth.* Parliament is the legal sovereign, but its
1 Mr. Serjeant Ballantine relates that he was applied to to defend
the Gackwar of Baroda, and that he “accepted the retainer, it being
the first that was ever received by a member of this bar to appear as
an advocate upon any trial in India.” Mr. Serjeant Ballantine's
Experiences, chap. xlv., 1882.
* “Lectures on the Law of the Constitution,” second edition, by
A. V. Dicey, London, 1886. -
O OVA2 W.A. W. ZZT.S. CAE/A A' A CTAEA’AS 7/CS. 225
sº-
will can only be expressed in an act of Parliament,
and this at once and necessarily subjects such enact-
ment, both as to its construction and enforcement,
to the judicial courts. The crown can act only
through ministers, who are legally responsible for
the act, and thus the crown indirectly, and the
minister directly, are brought under the supremacy
of the law." You may recall Bacon's well-known
remark in his Essays, that judges though they be
“lions” yet should be “lions under the throne,
“being circumspect that they do not check or
“oppose any points of sovereignty.” This was a
covert plea for the prerogative, which Coke fought,
which Parliament resisted, and which the Revolu-
tion of 1688 finally overthrew, establishing the
independence of the judges and the rule and su-
premacy of the law administered by the judges.”
The glory of the English law, establishing the
rights of Englishmen, consists in the following prin-
ciples: The rule of law excludes the exercise of arbi-
trary power; “Englishmen are ruled by the law
“and by the law alone; a man may be punished
“for a breach of the law, and he can be punished
“for nothing else.” Not only so, but equally, if
not more, important is the principle that this breach
of the law must be established as to all classes and
all persons, official and non-official, in the ordinary
courts of law. Arbitrary power and special admin-
istrative tribunals such as we find in France and
other countries administering what the French call
droit administratif, do not exist. In England the
1 Dicey, p. 335.
* Ib., pp. 206, 207, 243. See ante Lectures I., IV.
Lecture
VIII.
The essen-
tial rights
of English-
IIlé]] .
15
226 M.A WS AAWD 5°C/R/SPA’UDEAVCE.
same law applies to all persons, and it is adminis-
tered for and against all persons in the great law
courts. “The law of England knows nothing of
“exceptional offences punished by extraordinary
“tribunals.” So also direct personal responsibility
for torts — for any invasion of the legal rights of
another — exists without limit or exception. No
command of an official, not even of the crown,
can be pleaded in bar to any wrongful act.
It is specially noteworthy in the study of our
legal system that these rules of law, so all-embrac-
ing and undistinguishing in their application and so
effective in their protective energy, have in the main
been the work of the courts, which have defined and
enforced them. They have their source in the ad-
judged and established rights of individuals. These
rights, secured by the decisions of the courts, make
the Constitution of England, and are not created by
and are not the product of the Constitution.
These great and fundamental principles, these
distinguishing excellences of the English law, have
been adopted in all their scope and vigor in this
country. We have gone further, and by constitu-
tional limitations upon legislative power we have
placed these primordial rights beyond legislative
invasion, thereby giving them a theoretical if not
an actual, security greater than they possess in the
old country.” Every American lawyer knows this
to be true. The judicial judgments, Federal and
State, which establish it are numerous and uniform.
I shall only mention a few of the leading cases on
Lecture
WIII.
Same prin-
ciples
adopted in
all their
amplitude
in this
country.
1 Dicey, p. 229.
* See ante Lectures I., VII.
OUR /A W. ZTS CA/A/84 C7F/º/ST/CS. 227
*--—
the subject in the Supreme Court of the United
States." In these respects I insist that the law of
1 “The government of the United States,” said Chief-Justice
Marshall in Marbury v. Madison, 1 Cranch, 137, “has been emphati-
cally termed a government of laws and not of men.” See ante Lec-
tures IV., VII. “No man in this country,” said Mr. Justice Miller,
delivering the judgment of the court in U. S. v. Lee, 106 U. S. Rep.,
196, 220, “is so high that he is above the law. No officer of the law
may set that law at defiance with impunity. All the officers of the
government, from the highest to the lowest, are creatures of the law,
and are bound to obey it.” - -
This great principle of personal liberty is strikingly illustrated in
Kilbourn v. Thompson, 103 U. S. Rep., 168, which went so far as to
establish that a person may recover damages for an unlawful imprison-
ment under an express order of the House of Representatives. Speak-
ing of this judgment, Mr. Justice Miller, who wrote the opinion of the
court, afterwards said: “This decision, which ultimately resulted in
the recovery of a large judgment by Mr. Kilbourn against the ser-
jeant-at-arms, which sum was paid by an appropriation made by the
Congress of the United States out of the treasury, was everywhere
received with satisfaction. It has been followed in the States of
the Union where similar questions have constantly arisen, and is
undoubtedly, on account of the assertion by it of the right of the
citizen to be protected against the legislative body, and to be pro-
ceeded against for any offence only in the judicial branch of the govern-
ment, one of the most important that has been made in recent years.
It is also important as being in some sense a direct control by the
Supreme Court of the United States over the decisions and acts of
one of the branches of the legislative department of the government,
made without authority of the law.” Address, June 29, 1887, before
the Law Department of the University of Michigan at Ann Arbor;
Miller on the Constitution, p. 415.
“It follows, therefore,” said the late Mr. Justice Matthews in his
address in 1888 before the Yale Law School, “that for every trespass
or wrong in person or property which the individual may suffer, the
courts of justice are open to him for redress. If his adversary pleads
the authority of the government, even in the form of a statute, his
defence is not complete unless he further establishes that he has also
the warrant of a valid law. It is not sufficient for him to assert a
justification by the authority of a State, or of the United States; he
is bound to prove his defence, and the Constitution must be both his
witness and his judge. This doctrine is founded upon the immutable
distinction between the law as it is in its essence under the Constitu-
Lecture
VIII.
American
liberties.
228 ZA WS AAWD 70A/SPAC/DEAVCE.
Lecture
VIII.
American
liberties.
England and America is superior to the Roman
law, either as it anciently existed or as it exists
in the States of modern Continental Europe.
tion and the acts of those who as its agents assume its adminis-
tration.” See ante Lecture VII.
“‘This distinction,’ said the Supreme Court in Poindexter v.
Greenhow, 114 U. S. Rep., 270, 291, “is essential to the idea of
constitutional government. To deny it or blot it out obliterates the
line of demarcation that separates constitutional government from
absolutism, free self-government based on the sovereignty of the peo-
ple from that despotism, whether of the one or the many, which
enables the agent of the State to declare and decree that he is the
State; to say, “L’Etat c'est moi. Of what avail are written constitu-
tions whose bills of right for the security of individual liberty have
been Written, too often, with the blood of martyrs shed upon the bat-
tlefield and the scaffold, if their limitations and restraints upon power
may be overpassed with impunity by the very agencies created and
appointed to guard, defend, and enforce them ; and that too with the
Sacred authority of law, not only compelling obedience, but entitled
to respect 2 And how else can these principles of individual liberty
and right be maintained, if, when violated, the judicial tribunals are
forbidden to visit penalties upon individual offenders who are the
instruments of wrong, when they interpose the shield of the State 2
The doctrine is not to be tolerated. The whole frame and scheme of
the political institutions of this country, State and Federal, protest
against it. Their continued existence is not compatible with it. It
is the doctrine of absolutism, pure, simple, and naked ; and of com-
munism which is its twin, – the double progeny of the same evil
birth.” The conclusion, indeed, is inevitable that, if the powers of
the general government cannot operate directly upon the State gov-
ernments, considered as political bodies, they nevertheless do operate
directly upon every natural and subordinate political person domiciled
or being within the territorial limits of the State; and these may be
held accountable for their conduct, and amenable to the judicial pro-
cess of the United States in whatever character they may assume to
act ; they cannot divest themselves of their direct relation to the gov-
ernment of the nation, of which they are citizens, and of the duty of
obedience which that relation necessarily implies.”
On this point it was said by the Supreme Court, in delivering
judgment in re Ayers, 123 U. S. Rep., 443, 507: “The government of
the United States, in the enforcement of its laws, deals with all per-
sons within its territorial jurisdiction as individuals owing obedience
OCZAC M.A. W. ZZT.S. CAZA A' A CTAE /º/S 7TWC.S. 229
I now proceed to present more in detail some
of the leading characteristics of English and Amer-
ican law, and to trace the effects thereof for good
and for evil on the body of that law as it exists
at the present time.
For many ages in the English law the doctrine
of the authoritative force of judicial precedent has
been part of it." The growth of this doctrine has
been briefly traced by Sir William Markby in his
“Elements of Law.” He says: —
“The resource of the English lawyers when
to its authority. The penalties of disobedience may be visited upon
them, without regard to the character in which they assume to act, or
the nature of the exemption they may plead in justification. Nothing
can be interposed between the individual and the obligation he owes
to the Constitution and laws of the United States, which can shield
or defend him from their just authority, and the extent and limits of
that authority the government of the United States, by means of its
judicial power, interprets and applies for itself. If, therefore, an in-
dividual, acting under the assumed authority of a State, as one of its
officers, and under color of its laws, comes into conflict with the supe-
rior authority of a valid law of the United States, he is stripped of his
representative character, and subjected in his person to the conse-
quences of his individual conduct. A State has no power to impart
to him any immunity from responsibility to the supreme authority of
the United States.”
“By means of this judicial power,” says Justice Matthews, “the
supremacy of the government of the United States may be asserted
and vindicated in all cases whatsoever, even to the extent of determin-
ing for itself, and against all adverse claims, the limits of its own
authority. It may prescribe by its legislative power, penalties and
punishments for disobedience to any of its laws, and the validity of
those laws can finally be determined only in its own courts; and if,
in violation of their allegiance, individual citizens organize and arm
by military force to overthrow or defeat its authority, they become
liable to judicial punishment as in other cases of treason against the
sovereign power.” -
I See ante Lecture VI. 2 $$ 90–93.
Lecture
VIII.
Judicial
precedent.
23O A WS AAWD 3'URISPRUDENCE.
Tºre “called on to fill the gap which was elsewhere
VIII. gº
“supplied by the Roman law was custom. Of
dici º e wº
º “this custom the judges were themselves, in the
dent. “last resort, the repository.” Ages before Hale's
and Blackstone's time the authoritative force of
prior decisions was established.” “Thus it comes
to pass,” continues Markby, “that English case-
“law does for us what the Roman law does for
“the rest of Western Europe. And this difference
“ between our common law and the common law
“of Continental Europe has produced a marked
“difference between our own and foreign legal
“systems. Where the principles of the Roman law
1 In Horwood's Year-Book, 32 Edw. I., p. 32, A. D. 1304, Herle, J.,
said: “But see whether he shall be received to aver these three causes:
for the judgment to be by you now given will be hereafter an author-
ity in every quare admissit in England.” This is cited by Professor
Hammond (1 Blacks. Com., 214, notes), and he adds, “It is useless,
however, to multiply quotations upon a point so thoroughly wrought
into the very foundation of English law,” and thereupon the learned
annotator proceeds to examine the rationale of the doctrine. Freeman
speaks of the “Englishman’s love of precedent,” ascribing to this cause
not only the growth of the common law, but also the growth of the
unwritten Constitution of England. “Growth of the English Consti-
tution,” chap. iii. In another place he declares that “the life and
Soul of English law has ever been precedent.” Ib., chap. ii. As to the
development of the doctrine of precedent in the Court of Chancery,
Spence's Equity, vol. i., pp. 410, 416, 423, 712. Lord Eldon in his
judgments frequently admitted that courts of equity equally with
courts of law were bound by what had been previously decided and
settled. “Life of Lord Eldon,” by Horace Twiss, vol. iii., pp. 440–449.
See particularly what Lord Eldon says in Gee v. Pritchard, 2 Swanst.
414: Davis v. Duke of Marlborough, I b., 162, 163; Attorney-General
v. Forster, 10 Vesey, 342; Davis v. Lord Strathmore, 16 Vesey, 429.
But he insisted upon great carefulness in making sure that the pre-
cedents did settle the law, and also in their application, Maundrell v.
Maundrell, 10 Vesey, 259. See further Story’s Equity, vol. i., §§ 18–23,
as to the general value and authority of precedents in courts of
equity.
O UAE LA W. ZZT.S. CAE/AA’A CTAEA’ſ ST/CS. 23 I
w-
“are adopted, the advance must always be made on
“certain lines. An English or American judge can
“go wherever his good sense leads him. The result
“has been that whilst the law of Continental Eu-
“rope is formally correct, it is not always easily
“adapted to the changing wants of those amongst
“whom it is administered. On the other hand, the
“English law, whilst it is cumbrous, ill-arranged,
“ and barren of principles, whilst it is obscure and
“not unfrequently in conflict with itself, is yet a
“system under which justice can be done. Any-
“how, it stands alone in the history of the world.”
The point I wish you to notice is that the authori-
tative force of judicial precedents is an established
and up to the present time at least an essential part
of the English and American systems of law. Let
us trace more at large the scope and effect of this
important doctrine. What is judicial precedent 7
Judicial precedent is not simply part of the law in
a general sense, – that it is natural to yield to the
influence of example and to follow what has been
practised, - but it is a part of our law in a sense
and with effects which are distinctively and most
strikingly peculiar. The doctrine as established is
shortly this: that a decision by a court of com-
petent jurisdiction of a point of law lying so
squarely in the pathway of judicial judgment that
the case could not be adjudged without deciding it,
is not only binding upon the parties to the cause in
judgment, but the point so decided becomes, until it
is reversed or overruled, evidence of what the law
is in like cases, which the courts are bound to fol-
1 Markby, “Elements of Law,” $ 92.
Lecture
VIII.
Judicial -
precedent
3,1] {2SSéIl-
tial part of
our legal
System.
232 ZA WS AAWD jº/R/SPA’UDENCE.
Lecture
VIII.
The scope
and effect
of the doc-
trime of
judicial
precedent.
low not only in cases precisely like the one which
was first determined, but also in those which how-
ever different in their origin or special circumstances
stand, or are considered to stand, upon the same prin.
ciple. What is to be observed and remembered is
that the adjudged case has an authoritative and not
merely persuasive force. The doctrine is not limited
in its scope and binding effect to cases which deter-
mine the true construction of a statute, but extends
to the far larger class of cases which does not depend
upon positive legislation, but must be determined by
general reasoning. There is a difference of opinion
among writers as to whether the precedent actually
constitutes the law or is only authoritative evidence
thereof. It is not proposed now to enter upon this
discussion ; it is enough to remark at this time that
the precedent has in our legal system an authorita-
tive effect. In Continental Europe a judicial decision
has no authoritative force in any other case, whether
in the same or any other court. But in England
and in this country a point solemnly decided has
the force and effect of law, binding the judges in all
other cases that clearly fall within its principle, and
which the judges are therefore bound to follow
and apply, unless, to use Blackstone's well-known
and much criticised qualification, the precedent is
“flatly absurd or unjust.” "
1 See 1 Blacks. Com., Introduction, $ 3, pp. 69–71, and Professor
Hammond’s critical and learned note, 30, Hammond’s Ed., pp. 213–
226; also Christian’s and Chitty’s notes on the passage cited in the
text. Hale: “The History of the Common Law,” Runnington's Ed.,
1779, chap. i., pp. 3, 6, 7; chap. iv., pp. 65–69. Clark: “Practical
Jurisprudence,” 1883, pp. 225–230, 244–246, also part ii., chap. v.
Markby: “Elements of Law,” $ 91. Rationale, early importance
OCZAZ LA W. ZZT.S. CAE/A A' A CTE /º/S 7T/CS. 233
The direct and indirect consequences of the doc-
trine of judicial precedent in our law, for good and
for evil, present a subject of such moment as to
demand the most anxious consideration. It cannot,
of course, be dealt with at large within the limits of
a single lecture; and I shall essay to deal with it,
on this occasion, only in its most general and
obvious outlines.
To this doctrine we owe a weight of obligation
which cannot easily be overstated. By reason of
the authoritative force thus given to judicial deci-
sions and their consequent importance, they have
been reported for several hundred years, so that at
this time the volumes of reports in England and
this country number about eight thousand. These
embody the learning, wisdom, and experience of
the judges (often men of great intellectual powers)
who during this long period have made the law
and the practical administration of justice the sub-
jects of profound study. Indirectly the reports
embody also the results of the researches, studies,
experience, and ability of the bar during the same
period, since of these the judges have had the ad-
vantage in the argument of the causes so decided.
Indeed, the doctrine of judicial precedent implies
that the point to the decision whereof such force
is attributed should have been argued by opposing
counsel.”
and value of precedent in English law and politics. Pollock: “Essays
1n Jurisprudence and Ethics,” pp. 52, 214, 216 ; also chap. ix. on the
“Science of Case Law.” Ante Lecture I., p. 27 et seq. and notes;
post Lectures IX., X.
1 See ante Lecture I. and notes.
Lecture
VIII.
The bene-
ficial con-
Sequences
of the doc-
trine of
judicial
precedent.
234. M.A WS AAWD jº/R/SPRUDEAVCE.
Lecture
VIII.
Value of
the judi-
cial re-
portS.
The other
side of the
aCCount.
The value of these reports to the lawyer and to
the judge is, I repeat, absolutely incalculable. It is
a mine of wealth possessed by none but English-
speaking peoples. Here the lawyer finds his true
riches. What the art collections in the Vatican, in
the Tribune Room, the Pinacotheks, in the Dresden
Gallery, and in the Louvre are to the artist, the judi-
cial reports are to the English and American lawyer.
I yield to no one in my estimate of the store of riches
they contain. I have not yet mentioned one of the
chief elements of their possible usefulness. They
are capable of being made quite as valuable to the
legislator as to the lawyer, since the uninterrupted
light of the experience of many generations of men
shines forth from them to mark out and illumine the
legislator's pathway. He need scarcely take a single
step in the dark.
Let us now glance at the other side of the account.
Throughout the greater part of the long period in
which this stupendous work of judicial legislation
has been silently going on, whereby the law has
been constantly growing and changing by what has
been likened to a species of judicial alluvion, the
Parliament in England and the legislative bodies
in this country have not interfered (except quite
recently in respect of a few subjects) for the pur-
pose of systematizing the law or reducing distinct
branches of it into written and definite form. The
consequence has been that the law has necessarily
had an irregular and incomplete development.
The accidental origin and the consequent irreg-
ular development of so much of the jurisprudence
of England, from which ours is borrowed, are among
OUR /A W. ZZT.S. CA/A A' A CTAEA2/S ZYC.S. 235
a-—
the most singular phenomena in its history. Of this
our equity system is a notable example. It is, in
fact, almost accidental that unlike any other legal
system we have a separate Court of Chancery, or
what is equivalent to it, with all the momentous
consequences which have flowed from the separa-
tion of the two jurisdictions of law and equity, and
the creation of equitable rights and estates distinct
from legal. The Court of Chancery came into ex-
istence by reason of the jealous spirit and narrow
conservatism of the common-law judges, and could
have been avoided by a timely and simple act of
Parliament.
These two great streams have so long flowed in
distinct channels that although we regret the inju-
rious consequences of the unnecessary separation,
yet with the habitual caution of our profession we
hesitate to unite them because we cannot clearly
foresee all the results. The tendency to their union
is, however, marked and strong. The law stream is
ever increasing its volume and momentum, and is,
though unperceived, inexorably eating away the
narrow banks which divide it from the equitable."
Nothing that lies in the future seems to me more
certain to occur than that at no very distant pe-
riod they are destined to join each other, and to
form a grand and lordly stream, which after the
first disturbance is over Denham's lines will fitly
describe, –
“Though deep yet clear, though gentle yet not dull,
Strong without rage, without o'erflowing full.”
1 Post Lecture XIII.
Lecture
VIII.
Accidental
origin and
irregular
develop-
ment of
English
law:
whereof
the Court
of Chan-
cery is a
notable
example.
236 M.A WS AAWD 520/R/SPACOWDEAVCAE.
Lecture
VIII.
Uneven
growth of
case-law.
But whether this shall occur or not, the law and
equity reports of England and America contain the
recorded experience growing out of the actual trans-
actions and affairs of men during the hundreds of
years in which our jurisprudence has been making
its growth and attaining the developed condition in
which we find it to-day.
Judicial power can of course be exerted only as
cases arise for decision. It was entirely fortuitous
when, if ever, a given point would arise for judg-
ment; and only such points as actually arose could
be authoritatively dealt with by the courts. Sir
Frederick Pollock, in a paper of marked excellence,
has given several interesting illustrations of the won-
derfully uneven and anomalous growth of case-law,
as a result of its dependence upon “the casual exigen-
“cies of litigation to determine what parts of it shall
“be filled up and what left incomplete,” observing,
and truly, that “all kinds of curious little questions
“receive elaborate answers, while great ones remain
“in a provoking state of uncertainty.”
1 Pollock, “Essays on Jurisprudence and Ethics,” chap. iii., Lon-
don, 1882. He refers, among others, to the very common case of a
sale of goods on credit for a fixed period, the goods meantime to
remain in the seller's possession, the buyer agreeing to pay for and
remove them at a specified time. Suppose the time of credit expires
and the buyer fails to call and pay for them according to the contract,
what then are the rights of the seller ? The law on such a point cer-
tainly ought to be plain, yet more than thirty years ago Lord Blackburn,
in his work on Sale (the basis of Mr. Benjamin’s more elaborate treatise
on the same subject), said that the question was largely unsettled, and
unsettled on many points it remains to this day. The courts in Eng-
land have adjudged that the seller cannot rescind the contract and
hold the goods as owner. This seems of doubtful soundness, and the
law in many countries is otherwise. But as he cannot rescind, the
practical question remains, May he resell the goods at the buyer's
OUR /A W - YTS CHA RACTER/ST/CS. 237
FIe shows that until 1851 the law concerning a
not uncommon commercial transaction was wholly
undecided ; it was then decided against the dicta of
the Common Pleas expressed years before. When
it was at length decided it was, I submit with defer-
ence, wrongly decided; and then follows the sug-
gestion of the Judicial Committee of the Privy
Council refining away a wrong decision by the usual
process of exceptions, which in the course of time
eats up the rule itself; but whether the suggestion
of the Judicial Committee will be adopted by the
House of Lords some ten or fifty years hence, and
thus made law, must meanwhile remain to mer-
chants and lawyers in doubt and uncertainty.
Parliament could settle it by a single clause in a
Contract Act if it would. This case is typical of
scores of others in every branch of the law, to
which, if time permitted, it would be easy to refer.
Continuing the consideration of defects in our
legal system, I have long thought that the law of
Real Property, at least in this country, is in a most
risk 2 Fifty years ago, the Common Pleas, says Professor Pollock,
was strongly inclined to the opinion (but did not adjudge the point)
that the seller had this right. The question did not arise for decision
until 1851, when the Queen's Bench held that he had no such right;
that a resale by him would be an actionable breach of the contract,
for which he would be liable to the purchaser in damages, actual or
nominal, as the case might be ; and if any profit was made, the seller
must account therefor to the defaulting buyer. How the House of
Lords may decide, if the question ever gets there, no one can foresee.
And thus stands the law to-day, except that the Judicial Committee
of the Privy Council, about twenty-five years ago, suggested that if the
seller should give the buyer express notice of his purpose to sell, he
might not be liable to an action ; but we must remember that the
Privy Council’s opinions and judgments are not authoritative.
Ilecture
VIII.
Uneven
growth of
case-law :
illustra--
tion.
238 ZA WS AAWD 90/º/SPA’UDEAVCE.
Lecture
VIII.
Unsatis-
factory
condition
of the law
of Real
Property.
unsatisfactory condition. The American law is sub-
stantially borrowed from the English law. Owing
to the mode of its development the English law of
landed property is refined and intricate to an extent
which makes an acquisition of a thorough know-
ledge of it the work of years, and largely confines
the practice thereof to a branch of the profession
known as real estate lawyers and conveyancers.
If this were really necessary, it should be uncom-
plainingly endured.
In England and America the law of Real Prop-
erty is almost wholly distinct from the law of Per-
sonal Property. Many of the distinctions do not
inhere in the two classes of property. The essential
qualities of all property, whether real or personal,
are its duty to contribute to the rightful demands of
the State in the exercise of the right of taxation and
of eminent domain, its liability to creditors, and the
right of the owner to enjoy it, to alien it, to have
it descend to his heirs, or to dispose of it by will.
The existing law in England and the United States
not only makes many unnecessary distinctions be-
tween Real and Personal Property, but it has, not
by design, but as the result of historical causes,
divided the rights of Real Property into two great
classes of legal estates and equitable interests, –
the one set of rights administered by courts of law,
or courts which apply legal rules, and the other by
courts of chancery, or courts which apply the doc-
trines of equity.
The doctrines of chancery concerning equitable
estates, in part self-originated and in part borrowed
from the civil and in part from the feudal law, and
OUAE Z.A. W. ZTS CHA RACTE/e/ST/CS. 239
which had their origin in the necessity of modifying
the mischievous doctrine of feudal tenures so as to
adapt in some measure the crude and inadequate
system of the early law to the wants and neces-
sities of advancing civilization, became refined and
complicated, obscure and intricate, by the very
circumstances of their anomalous and irregular
development. The chancellors undertook no sys-
tematic treatment of the subject. By the very
nature of their functions they could not. Guided
by no fixed rules or principles, they interfered
from time to time, as single cases arose, to remedy
defects in the common law, or to correct certain
hardships therein, which were no longer tolerable.
Nor did Parliament in this period of growth and
change undertake to deal with the subject at large.
When some grievous abuse pressed so heavily that
it could no longer be endured, the remedial interpo-
sition of the legislature was confined to redressing
that. The practice and perhaps even the conception
that it was the proper function of the legislature to
reduce the law on a given subject to a systematic
and definite form did not exist. This conception
came only in more recent times.
Lord St. Leonards relates that he received at one
time a letter from an American lawyer, stating that
an edition of his work on Powers would proba-
bly soon be required in this country, whereupon
this learned author (who might 6 priori have been
supposed to revel in the artificial and intricate dis-
tinctions between Powers Appendant and Appurten-
ant, Powers Collateral and in Gross, and Powers
simply Collateral), with a deep sense of their essen-
Lecture
VIII.
Sources of
the com-
plexity of
the law of
Real Prop-
erty.
24O A WS AAWD 520/R/SPA’UDEAVCE.
Lecture
VIII.
Suggested
changes
and
amend-
ments in
the law of
Real Prop-
erty.
tial uselessness and mischief, remarked, “I regretted
“at the time that a new State should embarrass
“itself with our forms of conveyancing springing
“out of the doctrine of uses.”
Real Property with us does not serve as the foun-
dation for personal distinction or family grandeur,
and is invested with no peculiar sanctity. Its uses
are those of property simply. It is an article of
commerce, and its free circulation is encouraged.
Without going into further details, I insist that the
law of Real Property in this country ought to be
assimilated as near as possible to the law of Per-
sonal Property, and that it is practicable to eman-
cipate it from all of the pernicious consequences of
tenure, whether existing by the common law or
growing out of the doctrine of uses, and to make it
as simple and easily understood as the law concern-
ing personalty. I do not deny that the English law
has by means of fictions, by force of a few statutes,
and by the course of decision in the courts of chan-
cery for two hundred years, been moulded so that
the combined system of legal and equitable rights
and remedies meets the wants and accords with the
prevailing sentiments of the English people; but it
is demonstrable that even there it is unnecessarily
abstruse, complex, and uncertain. But I do ear-
nestly maintain that it is owing simply to the inertia
and conservatism of our bar that it is willing to let
this great department of our law remain in its pres-
ent condition, — chaotic, uncertain, complex, and
abounding in subtleties and refinements; and this,
although it is practicable to make it as simple, clear,
and certain as any other part of our laws. Let us
OUR Z.A. W. ZZTS CHA RACTER/ST/CS. 24. I
at length have deliverance from the remaining ves- º
tiges of the bondage of the Norman conqueror, and º
from the heavy burdens which a long succession of
English chancellors, albeit without any fault of
theirs, have imposed upon us."
I shall pursue the general subject — the excel-
lences and defects of our laws — in the next
lecture.
NotE. — Undoubtedly the American law of real property is upon
a better footing than the English original. It is perhaps on a better
footing than the law of real property as it contemporaneously exists
in England. Some years ago a writer in the “American Jurist " thus
summarized correctly the general character of the changes that had
been made in the American States : —
“(1) Abolition of feudal tenure, including copyhold ; (2) abolition
of tithes; (3) making both the real and personal property of intestates
descend to the same persons; (4) enabling parents to become heirs
to their children; (5) abolition of primogeniture and preference of
males in descent; (6) making all estates descend in the same course,
whether acquired by purchase or by descent from paternal or maternal
relations; (7) abolishing the preference of male stock in descent;
(8) enabling half-blood relations to inherit; (9) making husband
and wife heirs to each other in case of failure of blood relations;
(10) making seisin of land pass by the mere delivery of the deed ;
(11) the general registration of deeds; (12) making a fee simple pass
without the word “heirs” or any equivalent, where a less estate is not
expressed; (13) enabling tenants in tail to convey estates in fee simple
without a fine or recovery ; (14) enabling married women to convey
their estates and bar their dower without a fine; (15) change of joint
tenancies into tenancies in common unless otherwise expressed ; (16)
removing largely the disabilities of alienage with regard to real prop-
erty; (17) abolition of the doctrine of tacking in mortgages; (18)
placing land mortgage, as well as the debt for which it is security, at
the disposal of the mortgagee's executor; (19) making all real estate
liable to execution for debt; (20) rendering real estate assets for pay-
ment of all debts without any preference; (21) shortening the time of
limitation.”
These changes do not at all invalidate or impair the views ex-
pressed in the text as to desirableness of further amendments in the
law relating to real property, of the character therein suggested.
1 See ante Lecture VI.
16
Lecture
IX.
Why case-
law is
necessarily
incom-
plete.
LECTURE IX.
OUR LAW : ITS UNCERTAINTY AND ENORMOUs BULK. –
SUGGESTIONS AS TO THE SCOPE AND TRUE METHODS OF
AMENDING THE LAws ; AND HEREIN CODIFICATION CON-
SIDERED. — THE TRUE OFFICE AND USE OF ADJUDGED
CASEs (NOTE).
IN my last lecture I referred to the accidental and
uneven development of case-law as one of the
causes which contributes to make our law defective.
I am now to refer to some other causes which oper-
ate to the same end, and shall afterwards offer some
suggestions as to the true scope and method of its
amendment.
It is manifest that the judges, from the very
nature and limitations of their functions, cannot
develop the general principles of the law so as to
take in the entire subject, or do anything except
(if you will pardon the expression) automatically
(that is, depending upon the accident of cases arising
for judicial action) towards giving completeness to
the law, or any branch of it.
Not only is case-law incomplete, but the multi-
plicity and conflict of decisions are among the most
fruitful causes of the unnecessary uncertainty,
which characterizes the jurisprudence of England
and America. Thousands of decisions are reported
O UAE /A W. WTS CA/A/RA CTE/e/ST/CS. 243
every year. An almost unlimited number can be
found upon almost any subject. This is especially
true in this country where we have forty-four State
courts of last resort. What any given case decides
must be deduced from a careful examination of the
exact facts, and of the positive legislation, if any,
applicable thereto. A general principle will be
found laid down by certain courts. Other courts
deny or doubt the soundness of the principle. Ex-
ceptions are gradually, but certainly, introduced.
Almost every subject is overrun by more than a
tropical redundancy of decisions, leaving in many
cases the most patient investigator entangled in
doubt. In his helplessness and despair, the lawyer,
wearied with the toilsomeness of an unsatisfactory
and unrewarded search “through the palpable ob-
scure,” is often tempted to wish all the reports “in
the deep bosom of the ocean buried.”
The confusion is made worse by the usual course
of legislation, which is, in general, irregular and
fragmentary. The Legislature, ordinarily, does not
attempt a systematic enactment or complete revi-
sion of the law on a given subject. It pre-sup-
poses that the common law is certain and known.
Some change is deemed necessary. It is made by a
statute, often crudely and imperfectly worded. The
statute is then expounded by the courts as occasion
arises. If the statute as interpreted (as is frequently
the case) falls short of, or goes beyond, or fails to
meet the end desired, another and often several ad-
ditional enactments are passed. So the work of
amendment and re-amendment and judicial inter-
pretation “goes on, till we have a series of statutes,
Lecture
IX.
Multi-
plicity and
conflict of
decisions
a.S Cà,U1S6S
of uncer-
tainty in
our laws.
Fragmen-
tary legis-
lation às
another
Cà,ULS63,
244 IA WS AAWD # CVRISPA'UDAEAVCE.
Lecture
IX.
Effect of
ll]] (281'-
tainty in
the law on
the admim-
istration of
justice.
“which to an uninitiated observer might seem to
“deal with their whole subject, but are really mere
“islands scattered in an ocean of case-law.” And
thus, of necessity, the law on any given point has
to be deduced as the result of an inquiry into the
common law, and a study of the legislation and of
the decisions under different statutes.
The effect of the existing uncertainty in the law
upon the administration of justice was very much
considered in a report to the American Bar Asso-
ciation at its meeting at Saratoga in August, 1885,
made by a special committee appointed to consider
whether the present delay and uncertainty in judi-
cial administration could be lessened, and, if so, by
what means ? The report was mainly written by
Mr. David Dudley Field. After considering other
subjects, the report proceeds : —
“The only remaining element of certainty or un-
“certainty is the character of the law itself, as it is
“certain or uncertain. Now, the state of the law
“we pronounce to be one of the greatest uncer-
“tainty. Did we not see many men of fair learning
“ and intelligence affirm the contrary, we should
“say that all men believed it and all men knew it.
“This uncertainty comes in a great degree from the
“nature of the sources whence the law is derived;
“it is made by the judiciary and not by the Legis-
“lature, made to fit particular cases and not by
“general rules, and made always after the fact.
“It will not answer the objection to say that the
“Legislature makes bad laws sometimes; so does
1 Pollock, “Essays on Jurisprudence and Ethics,” London, 1882,
chap. iii.
OC/A2 Z.A. W. ZZT.S. CAE/AACA CTEAC/S 7/CS. 245
“the judiciary. But the former need not make bad
“laws. If it be not able to make good ones for the
“future conduct of the citizen, leaving the judiciary
“to enforce them, still less is the judiciary able to
“make and enforce good laws for the past conduct
“of the citizen. . . . .
“A single word expresses the present condition
“of the law, - chaos. Every lawsuit is an adven-
“ture, more or less, into this chaos. . . . It is idle
“to think of going on as we are going. The con-
“fusion grows worse all the time. Chaos deepens
“and thickens daily. If one would see how it
“works, he has but to look into the case of the
“Bank of the Republic against the Brooklyn City
“and Newtown Railroad Company, in the one
“hundred and second volume of the United States
“Reports," where he will get a glimpse of the chaos,
“and find also an invitation to the judges of New
“York to change their law, as if they were the
“Legislature of the State.””
In New York, for more than fifty years, it has
been held on general principles, and not by virtue
of any statute, that the holder of a negotiable bill
or note, who took the same merely as collateral,
* Reported under name of Railroad Company v. Railroad Com-
pany, 102 United States Reports, p. 14, 1880, which re-affirmed Swift
v. Tyson.
* The committee consisted of David Dudley Field, chairman, and
Edward J. Phelps, James O. Broadhead, Richard T. Merrick, and
John F. Dillon. Mr. Merrick died, and Mr. Phelps concurred in the
report, “except so far as it advocated and recommended a codification
of the common law.” Cortlandt Parker, appointed in place of Mr.
Merrick, made a separate report in 1886 declaring himself against
codification. Report of Association, 1885, pp. 323–367; Ib., 1886,
pp. 313–385.
Lecture
IX.
Report of
the Amer-
ican Bar
Associa-
tion on the
subject
of uncer-
tainty in
the law.
246 ZA WS AAWD 70/A/SPAC/DEAVCE.
—ºn
though without notice, is not such a holder for value
as to stand free from equities between the maker
and the payee. This doctrine was adopted in New
York in Bay v. Coddington." The general principle
involved afterwards came before the Supreme Court
of the United States in Swift v. Tyson,” in which a
view different from Bay v. Coddington was taken.
Chancellor Kent afterwards, in referring to the sub-
ject in his Commentaries,” said: “I am inclined to
“concur in Swift v. Tyson as the plainer and better
“ doctrine.” Nevertheless, the New York courts
still adhere to Bay v. Coddington, but the doctrine
of that case is not held to be the law in England
nor in most of the States in this country.
The decision referred to in volume 102 of the
United States Reports was made by the Supreme
Court in a case which arose in New York upon a
note which had been made, and was payable in
that State. The Supreme Court of the United
States did not under the circumstances follow the
doctrine of Bay v. Coddington, but on the con-
trary decided that the holder of negotiable paper
by way of collateral, without notice, before ma-
turity, was a bona ſide holder free from equities
between antecedent parties. It is obvious that
if the same case had been adjudged in the tri-
bunals of the State of New York instead of the
Federal Courts sitting in that State, the result to
the parties would have been precisely the reverse of
what it was. The case is certainly a striking illus-
1 5 Johns. Ch., 54; S. C., 20 Johns., 637.
Lecture
IX.
Illustra-
tions of
conflict
and uncer-
tainty;
Bay v.
Codding-
ton and
Swift v.
Tyson.
Doctrine
of Su-
preme
Court of
the United
States.
2 16 Peters, 1.
§ 3 Com., 81, note.
OUR LA W. ITS CHARACTERISTICS, 247
tration of the two main purposes for which it was
referred to in the report; that is, to show the chaotic
condition of the law, and that any certain prospect
of speedy remedy must come from the Legislature
and not from the courts. One of the judges of the
Supreme Court, in a note addressed to a member
of the committee, thought the criticism that the Su-
preme Court had “invited the judges of New York
“to change their law, as if they were the Legisla-
“ture of the State,” was not sustained by anything
found in the main opinion of the court, nor, as he
thought, in the concurring opinion of Mr. Justice
Clifford, who “meant only to express the hope that
“upon a question of commercial law, not depending
“upon legislative enactment, the courts of New
“York would acquiesce in the rule announced by
“this court, and which obtained in nearly all the
“States.”
And such, doubtless, was Mr. Justice Clifford’s
meaning. In my judgment, the decision of the
Supreme Court was right, and I am glad that it was
able to see its way clear to make it. Mr. Field, on
the other hand, denies the soundness of the decision.
He insists that there is no such thing as an Amer-
ican common law, as distinguishable from the com-
mon law of the several States. The Supreme Court
seems to affirm, which he denies, that there is a
general commercial law existing throughout the
Union. He maintains that the case in hand hav-
ing arisen on a contract made in New York, and
to be performed in New York, can be judged by no
other law than the law of New York, while the Su-
preme Court, considering the case to be one governed
Lecture
IX.
Doctrine
of the
Supreme
Court of
the United
States
(con-
tinued).
Comments
thereon.
248 LA WS AAWD 207A/SPRUDENCE.
Lºre by the principles of commercial law, and not depend-
– ing on any statute, felt at liberty, under the cir-
cumstances, to determine for itself what the true
principles of that law were, and to hold that they
were not bound by what they justly regarded as the
erroneous opinions of the New York courts on that
subject. But whether the decision of the Supreme
Court is right or wrong, the case itself is a notable
proof of the existing uncertainty of the law with re-
spect to one of the most frequent and important of
commercial transactions; and for this purpose, and
this only, have I referred to it at such length.
Colossal Connected with, and in fact producing much of
...'" the uncertainty in the law, is its bulk or voluminous-
#aw as a
º * ness, caused by the large number of reported cases.
tºº. The extent to which this increases the labors of the
bar and bench is much greater than is apt to be
supposed by those who have never reflected upon
it. As matters stand, it is a work practically neces-
sary in almost every important case, not clearly
controlled by special legislation or by an established
line of precedent in the particular State, to examine
the English and the more important American Re-
ports for decisions which will sustain your positions,
or which oppose those of your adversary.
The report of the special committee of the Amer-
ican Bar Association, before referred to, contains
some instructive statements on this subject, which
show the loss of time and labor caused by the neces-
sity of a resort to the reports of so many different
States and countries in order to ascertain what the
law is upon subjects which form the staple of cur-
rent litigation.
OUR LA W. ZZTS CHARACTER/ST/CS. 249
“In proof of uncertainty,” says the committee,"
“we can easily find the number of reversals in each
“State. We content ourselves with four States.
“An examination of the last volume of Reports of
“Decisions in the courts of last resort of New York,
“Pennsylvania, Ohio, and Virginia, respectively,–
“four States which may be considered representa-
“tive, and which have Courts of Appeal separate
“from the courts of first instance,—gives the follow-
“ing results: Volume ninety-seven of the reports of
“the New York Court of Appeals contains seventy-
“nine decisions, of which thirty-eight were reversals.
“The judges cited in their opinions four hundred
“ and forty-nine decisions, being three hundred and
“fifty-three made in New York, fifty-six in Eng-
“land, Scotland, and Ireland, eight in our Federal
“Courts, seven in Massachusetts, four in Pennsyl-
“vania, three in Vermont, two in Connecticut, two
“in New Hampshire, two in California, two in Min-
“nesota, two in Alabama, and in New Jersey, North
“Carolina, Kentucky, Florida, Virginia, Indiana,
“Maine, and Iowa one each. Volume one hundred
“and five of the Pennsylvania Supreme Court Re-
“ ports contains ninety-five decisions, of which forty-
“four were reversals. The citations of the judges
“were four hundred and fifty-one. Volume thirty-
“nine of Ohio Supreme Court Reports contains
“ninety-eight decisions, of which forty-six were
“reversals. The citations were many. Volume
“seventy-eight of the Virginia Supreme Court Re-
“ ports contains eighty-one decisions, of which forty
“were reversals. The citations were five hundred
1 Report American Bar Association, 1885, p. 329.
Lecture
IX.
Number of
reversals
as proof of
tl]]. Cel’-
tainty.
25O IA WS AAWD jº/R/SPAEUDAEAVCE.
Lecture
IX.
Loss of
time and
labor to
the bar
and bench,
caused by
the enor-
mous bulk
of the laws.
“ and seventy-six. The sources of these citations
“made by the judges of Pennsylvania, Ohio, and
“Virginia, in their opinions, were as various as
“ those made by the judges of New York."
“These were the decisions cited, examined, and
“commented on by the judges in making up their
“own opinion. But the decisions cited by counsel
“and pressed upon the judges for their consider-
“ation were, it is safe to say, ten times as many.
“In volume eighty-eight of the New York Reports,
“the number of cases cited by counsel was five thou-
“sand and thirty-seven. A single case reported in
“volume ninety-seven shows that counsel on the
“two sides cited two hundred and eighty-five deci-
“sions, of which one hundred and twenty-five had
“been made in New York, sixty-one in England,
“two in Ireland, four in Pennsylvania, four in
“North Carolina, four in Massachusetts, two in
“New Hampshire, two in New Jersey, two in Ken-
“tucky, two in the Federal Reports, and from
“Maine, Vermont, Iowa, and South Carolina, one
“each.” ”
1 An examination in August, 1893, of the 136th volume New York
reports, 48th Ohio, 88th Virginia, 153d Pennsylvania, being the last
volumes of reports in those States respectively, shows the relative
number of affirmances and reversals as follows: New York, affirmed,
84, reversed, 30; Pennsylvania, affirmed, 78, reversed, 41; Ohio,
affirmed, 24, reversed, 28; Virginia, affirmed, 67, reversed, 64.
* Not long since I received the publishers’ circular announcement
of the sixty-five volumes of American Decisions (a most useful and
valuable series of reports), containing, says the circular, 11,119 lead-
ing cases, re-reported, and 158,563 cases cited in the discussion of
Questions presented. This was not much of a shower, for in the
September number, 1892, of the “Green Bag Magazine” some of the
merits of the “Encyclopedia of Law,” now being published, are thus
stated: “In the eighteen volumes already published, there are 830
OUR LA W. A 7'S CHA RACTER/ST/CS. 25 I
Of course, many of these citations were loosely,
and perhaps many of them were unnecessarily,
complete legal treatises, containing 603,551 citations. Besides these
treatises, there are 14,502 unusual titles and adjudged words and
phrases, upon which there are given 127,302 citations.” Think of
it! 830 complete legal treatises, and over 600,000 cases cited! Some
further details are thus stated by the publishers. “In the twenty
volumes published, there are 22,238 large pages, containing 791,564
citations.” And these 22,238 pages, be it remembered, are not the
body of our case-law, but only a digest of a portion of it. Who shall
digest the digest ? As indicating what must be the bulk of the opin-
ions digested, the publishers make the following statement of the
number of cases on certain titles or subjects, which are digested in
the Cyclopedia : —
Railroad law. The Cyclopedia gives 30,045 citations, against 11,461
in Redfield on Railways. Corporation law. 14,409 citations, against
7,740 in Morawetz on Corporations. Real property. 52,813 against
26,877 in Washburn on Real Property. Judgments. Cyclopedia in twelve
volumes gives 7,970 citations, against 4,323 in Freeman on Judgments.
Livery-stable keepers. 379 citations, against 259 in Hanover on Horses,
and so on with respect to other titles. Many of these are not arranged
on any system or principle, but empirically, under such “unusual
titles " as appear below. I quote from the publishers’ announcement.
“There are a very large number of small titles in the law which
have never received treatment by text-writers, being too small for a
separate book upon the subject. By treating the whole field of the
law in one large work these all receive treatment. The following are
a small portion of the Unusual Titles thus far treated and the number
of cases cited : —
“Accidents, 214 cases; Act of God, 204; Alteration of Instruments,
1,041; Ambiguity, 636; Board of Health, 113; Bridges, 649; Civil
Damage Laws, 347; Commercial Travellers, 55; Composition with
Creditors, 280; Counties, 888; County Commissioners (Supervisors),
513; County Seat, 159; Coupons, 298; Crops, 809; Dams, 655; Default,
3,210; Demand, 3,851; Deputy, 364; Drains and Sewers, 454; Duress,
1,222; Equitable Conversion and Reconversion, 324; Explosion, 96;
Express Companies, 1,074; Fences, 1,663; Ferries, 416 ; Finder of
Property, 202; Fish and Fisheries, 385; Gas Companies, 366; Hawk-
ers and Peddlers, 149; Horses, 340; Hospital, 48; Ice and Ice Com-
panies, 160; Identity, 178; Impossible Contracts, 202; Indemnity
Contracts, 748; Inns and Innkeepers, 1,225; Interstate Commerce,
350; Intoxicating Liquors, 4,739; Investment, 766; Irrigation, 208;
Jeopardy, 1,287; Lakes and Ponds, 422; Literary Property, 134;
Lecture
IX.
252 M.A WS AAWD 90/º/SPA'ZZOAEAVCE.
Lecture
IX.
True office
of ad-
judged
CàSéS.
—s
made. If we could suppose that counsel and judges
all did what they ought, — that is, never cite a case,
not only without a careful reading but a careful
analysis and study of it and of its bearing upon the
proposition it is cited to sustain or oppose, – we can
readily imagine the great amount of time that has
been consumed, and labor expended, in the mere
examination of authorities. Much time and labor
in this direction are really unavoidable ; but even
in the present condition of the law a great deal of
such work is wasted because it is wholly unneces-
sary. This waste arises in part out of the very
prevalent failure to appreciate the exact function
and value of adjudged cases in arguments at the
bar, and to limit their use accordingly. Mr. Justice
Miller of the Supreme Court of the United States,
having, in a conversation a few years ago, made
some observations on this subject, which to me
at least were instructive, I addressed him a note
asking him to give me briefly his views concerning
Livery-stable Keepers, 379; Lodgings and Apartments, 386; Logs and
Lumber, 608; Lost Papers, 2,295; Manufacturing Corporations, 515.”
Such digests are, under existing conditions, necessary or convenient
tools or labor-saving instruments to the English and American lawyer,
and therefore I do not make the foregoing references to the Cyclopedia
by way of criticism upon the work, but as striking proof both of the
enormous bulk and the unorganized condition of our case-law. This
unwieldy mass of decisions is the direct, and, as I think, natural, if not
inevitable result of our doctrine of judicial precedent, which stimulates
the growth of case-law, whose colossal and unmanageable proportions,
constantly swelling in size, constitute the most remarkable — is it too
much to say appalling? — phenomenon in our jurisprudence. Is this
a normal and necessary condition 2 Must it go on forever? Is there
any expedient remedy? And if so, wherein does it consist? These
are grave and vital problems, which it is the business and duty of the
bar to consider and solve, and in respect whereof I have offered some
thoughts and suggestions in the course of these lectures.
O UR /A W. ZTS CAAA’ACTER/ST/CS. 253
the true office and use of adjudged cases in our law.
He obligingly complied with my request; and I am
sure you will be glad to know the views of this great
and experienced judge.
He admits that the use of judicial decisions by a
judge in making up his judgment in cases before
him is often a subject of no little anxiety. He
groups the cases into classes. The first class of
cases, and perhaps the largest, are cases whose deci-
sion turns upon principles that are not disputed.
Here the citation or use of authorities is generally
useless, since what is required is the just application
of acknowledged principles to the case at hand. The
second class of cases comprises those that construe
constitutions and statutes; and here the decisions of
the highest court of the government which adopted
the constitution or statutes in question are in most
cases conclusive on other courts. The third class of
cases — namely, those depending upon general prin-
ciples of law or equity — must, wherever the deci-
sions are conflicting, be determined by the weight of
authority; and it is, in his opinion, in this class of
Questions that adjudged cases, and the examination
and comparison of them by counsel, are of sub-
stantial aid to the court. He also makes some
useful observations concerning the discrimination
that should be made in the selection of the cases
to be cited."
I turn now to state some practical conclusions
which the brief survey in this and the preceding
* That it may be preserved, I print his letter as a note at the end of
this lecture.
Lecture
IX.
Views of
Mr. Jus-
tice Miller
on the
office of
adjudged
cases in
our law.
254. ZA WS AAWD 3'URISPRUDENCE,
Lecture
IX.
Suggested
remedies
for bulk
and uncer-
tainty.
Codifica-
tion, —
resolution
of the
American
Bar Asso-
ciation.
lecture of the present condition of our laws leads
me to suggest for your consideration.
The report of the special committee of the Amer-
ican Bar Association, before mentioned, stated in
fourteen distinct propositions the conclusions at
which the committee had arrived as to the means
whereby the existing delay and uncertainty in
judicial administration could be lessened. All
but one of these conclusions were adopted by the
Association, without any considerable dissent. The
thirteenth proposition was expressed in these
words: -
“XIII. The law itself should be reduced so far as
“possible to the form of a statute.”
This proposition was the subject of an animated
discussion. I am not able to say whether standing
by itself, and judged by itself, the proposition would
have met with any considerable dissent or opposi-
tion. But there were in the body of the report
arguments which it was supposed favored codifica-
tion in general, and it was thought by many mem-
bers that the thirteenth proposition, above quoted,
was simply the outgrowth of that argument, and
that its adoption would commit, or might be con-
strued to commit, the Association in its organized
capacity to the doctrine of codification, and that
this subject was one of such supreme importance as
to require previous notice and separate and distinct
consideration. The result was that the considera-
tion of the thirteenth proposition was postponed
until the meeting in 1886, to the end that all the
members might have time for examination and
reflection, and an opportunity to be present. At
OUR /A W. WTS CAHA ſº A CTEA’ASTICS, 255
the meeting of the Association in 1886, the thir-
teenth proposition was the subject of a full and
animated discussion. It was amended so as to
read :
“The law itself should be reduced, so far as its
“substantive principles are settled, to the form of a
“statute.”
And in this form it was adopted, but only by a
small majority. And thus the matter stands to the
present time, so far as it has been dealt with by the
American Bar Association."
The subject thus brought into view, whether in
its general or partial scope, is confessedly one of
great moment, — a living, vital, practical issue. It
is not my purpose to enter at large into its discus-
sion at this time. I have heretofore glanced at
it,” and shall have occasion to refer to it in subse-
quent lectures.” I content myself with a statement
1 The report of the committee in 1885, the debates and the action
on the report in that year, will be found in the Report of the
Association, 1885, pp. 42, 323: for 1886, in the Report for that year
at pp. 5–74, 325 (majority report), 363 (minority report.) The reso-
lution, amended as stated in the text, was adopted, ayes, 58; noes, 41
(1b., p. 74). In these two reports for 1885 and 1886, Mr. David Dudley
Field has set forth the reasons and grounds of the proposition as pro-
posed and adopted with his characteristic directness and ability. This
vote fairly reflects the diversity of opinion on the subject which exists
among the bar of the country. In the annual address before the asso-
ciation in 1886, Mr. Thomas J. Semmes, an eminent lawyer of Loui-
siana, advocated codification with great learning and force; while in
the like address in 1890 on “The Ideal and the Actual in the Law,”
Mr. James C. Carter, of New York, one of the acknowledged leaders
of the bar of the country, presented the argument against codification
with his accustomed elegance of diction and strength of reasoning.
(Reports, 1890, p. 217.)
* See ante Lectures IV., V., VIII.
* See post Lectures X., XII., XIII.
Lecture
IX.
Codifica-
tion, —
resolution
of the
American
Bar Asso-
ciation.
256 ZA WS AAWD 70F/SPA’UDEAVCE.
for your consideration of some of the conclusions,
without much elaboration, to which my own reflec-
tions have led me.
1. As I have elsewhere remarked, the word
“code” is one to which such a variety of meaning
is attached that it seems to me to be essential either
to drop it from the discussion, or first of all to fix and
define what is meant by it." If it means a general
abrogation of existing laws and rules and the sub-
stitution of an entirely new system, and to that end
to consign the law reports to oblivion, it will have
but very few advocates, and I am not among them.
Such, however, is not its necessary meaning.
A code, according to my conception, differs from
a mere revision, consolidation, or digest of existing
statutes, since it is essential to any practicable or
desirable scheme of codification, whether it is gen-
eral or confined to a particular branch, that it shall
derive the elements of its chief value from the exist-
ing body of case-law and statute-law, removing
therefrom what is obsolete, needlessly technical,
inconsistent, or superfluous, settling obscure and
doubtful points, expressing well settled principles
of general interest or utility, and with a cautious
hand filling up the interstices which the irregular
development of law as a result of the exigencies
of litigation has shown to exist, and then arrang-
ing the whole in a definite and systematic form.
Codification within these restricted and conserva-
tive limits, I believe to be both practicable and
expedient whenever it can be well and thoroughly
done, and not before. Nor would I demand quali-
Lecture
IX.
Author's
conclu-
sions.
Code de-
fined.
1 See ante Lecture VI.
OUR /A W. ZZTS CHA A' A CTE/º/S 7/CS. 257
fications in those charged with the work so high
that they are unattainable. “An ideal code,” says
Sir James Stephen,” “ought to be drawn by a Bacon
and settled by a Coke.” But we may wait forever if
we wait for an ideal code, or wait to combine such
qualifications in any given commission to execute
the work. •
Nor does it seem to me that the views of those
who insist as a condition precedent to undertaking
any part of the work that the whole body of the law
ought thus to be subjected to the operation at one
and the same time as necessary parts of a general
conception and plan, are at all feasible, and there-
fore are not wise. The labor required is so vast,
the difficulties to be overcome are so great, that
unless the work is done in divisions or branches of
the law, it will probably never be undertaken at all.
Some modern English statutes are so comprehen-
sive as very nearly to realize the practicable purpose
of a code on the subjects that are dealt with. For
example, in 1882, Parliament passed an act to
“Codify the law relating to bills of exchange,
checks, and promissory notes,” and the gentle-
man charged with its execution has stated that he
examined many statutes and thousands of cases
in order to frame the desired enactment.” Why
! 3 History Criminal Law, p. 300.
* See ante Lectures IV., V., VI.; post Lectures XII., XIII. “Byles
on Bills’ for accuracy and clearness is among the best law books in
the English language. Lawyers and judges have for years turned to
it for information with absolute confidence. It is not too much to
say that without it the late codification of the law of bills of exchange
would have been impossible.” “A Generation of Judges, by their
Reporter,” London, 1888, article Byles.
Lecture
IX.
Codifica-
tion em.
bloc not
feasible.
17
258 M.A WS AAWD 90R/SPRUDEAVCE.
Lecture
IX.
Codifica-
tion not a
panacea
for defects
in our
laws.
may we not have a Contract Act, a Partnership
Act, a Criminal Code, etc., without waiting for an
authorized projet to subject to this operation the
whole body of the law en bloc 3
2. Nor must we form unreasonable expectations
of the benefits to be derived from codification, no
matter how well it may be performed. It is not
possible, and therefore not desirable, to attempt to
make any enactment so comprehensive as to embrace
all cases or combinations of fact which will arise,
nor is it possible to make statutes so clear and pre-
cise as to avoid the necessity of judicial interpreta-
tion and construction. Besides, the habits, modes of
thought, practice, and traditions of a people, or of
a great profession like that of the law, are deeply
rooted and incapable of legislative extirpation if it
were attempted. Within proper limits the doctrine
of judicial precedent is reasonable and highly con-
venient, if not necessary. Its influence has proba-
bly pervaded every system of jurisprudence, even
where it has been expressly attempted to exclude it.
Justinian enacted that cases actually tried by the
emperor should be law, not only for the case de-
cided, but for all similar ones." The French code
prohibits judicial legislation, and under it judicial
decisions do not constitute an authoritative rule for
other judges in the sense of our doctrine of judicial
precedent. And the same is true, at least, theoreti-
cally, of the contemporary Continental codes. The
Prussian and Austrian codes went so far at first as
to forbid a judge from referring to the opinion of a
law writer or to previous judicial judgments; and
1 Code 1, 14, 12 pr. A. D., 529.
O OVA2 /A W. ZZTS CHA RACTEA’/ST/CS. 259
the Prussian code expressly directed him to base
his decisions upon the statutes and the general prin-
ciples of the Landrecht. But this was afterwards
modified in both countries, so that at this time the
decisions of the Supreme Court are regularly pub-
lished, and we cannot doubt that they exercise a
decisive influence upon inferior judges, whether
they are absolutely binding upon them as prece-
dents or not."
The sound conclusion would seem to be that
“the law itself should be reduced so far as prac-
“ticable to the form of a statute.” Not with the
expectation that the work of judicial interpretation
will be no longer necessary, but with a view to
reduce the necessity of interpretation and of judi-
cial legislation to the narrowest practicable limits,
and to remove as far as may be the existing
uncertainty in the law.
My idea of law amendment is that of Lord
Bacon. My idea of a code is that of Mr. Justice
Stephen. I conclude by quoting a passage from
each of these eminent men concerning these weighty
subjects:
“The work, which I propound, tendeth to prun-
“ing and grafting the law, and not to ploughing up
“ and planting it again; for such a remove I should
“hold indeed for a perilous innovation. But in the
“way I now propound, the entire body and sub-
“stance of the law shall remain, only discharged of
“idle and unprofitable or hurtful matter; and illus-
1 Clark, “Practical Jurisprudence,” pp. 264, 392, and addenda;
Markby, “Elements of Law,” $$ 26 m., 78 and note. Ante Lectures
IV., VI, VIII. : post Lecture X.
Lecture
IX.
The true
idea and
principle
of a code.
Views of
Ilord
Bacon.
26O ZAWS Awp 50RISPRUDENCE.
Lecture
IX
Views
of Mr.
Justice
Stephen.
“trated by order and other helps, towards the better
“understanding of it, and judgment thereupon.”
“A code ought to be based upon the principle
“that it aims at nothing more than the reduction to
“a definite and systematic shape of the results ob-
“tained and sanctioned by the experience of many
“centuries.””
NotE. — In a paper prepared in June, 1893, by Mr. David Dudley
Field, by request, for the Columbian Exposition in Chicago, he says
that codes of civil procedure, or what are such in substance, have
been adopted “in twenty-eight American States and Territories, –
New York, Missouri, Wisconsin, California, Kentucky, Ohio, Iowa,
Kansas, Nevada, North Dakota, South Dakota, Oregon, Idaho, Mon-
tana, Minnesota, Nebraska, Arizona, Arkansas, North Carolina, South
Carolina, Wyoming, Washington, Connecticut, Indiana, Colorado,
Georgia, Utah, and Maine. The example was contagious, even so
far as across the sea; and in 1873 the Parliament of England took up
the subject, and adopted the Judicature Act, by which the forms of
action were abolished and law and equity fused together. This act
extended to Ireland, and has been followed in the English colonies of
Victoria, Queensland, South Australia, Western Australia, Tasmania,
New Zealand, Jamaica, St. Vincent, the Leeward Islands, British Hon-
duras, Cambia, Grenada, Nova Scotia, Newfoundland, Ontario, and
British Columbia. It was not civil procedure alone that was taken
up in America; criminal procedure — that is, procedure in the crimi-
nal courts — was meliorated and codified. Long before this, how-
ever, and from the very beginning of American courts, the denial of
counsel to persons accused of crime had been repudiated as a gross
inhumanity. . . . Besides the acts of civil procedure that I have men-
tioned, and which I count as codes, – though a few of them, like the
practice act of Maine, are couched in not more than a dozen compre-
hensive and fundamental sections, to be engrafted upon the general
practice of the State, — besides these acts, I repeat, there are already to
be found in American jurisprudence eighteen codes of criminal proce-
dure, five penal codes, and five general civil codes. Taken all together,
here is an array of fifty-six codes which the United States are able to
present to the world as the fruit of the first century of independence.”
1 Lord Bacon's Proposal “Touching the Compiling and Amend-
ment of the Laws of England,” vol. ii., p. 229, Montagu's Ed.,
American reprint.
* Sir James Stephen, “History Criminal Law,” vol. iii., chap. xxxiv.
O UAE Z.A. W. ZTS CHA ACA CTER/S 7TWCS. 26I
NOTE.
MR. JUSTICE MILLER’s views CoNCERNING THE TRUE OFFICE
AND USE OF ADJUDGED CASES.
NEW YORK, Nov. 13, 1885. Note.
MY DEAR JUDGE, - In a casual conversation, I once heard Tºome
you make some observations concerning the functions of ad- of ad-
judged cases, which struck me very forcibly. They probably º,
expressed your own course or habit as a judge in considering our law.
the force and effect of “authorities.” Some cases, or class of
cases, you regarded as absolutely binding, without reference to
the original ground of decision; others as simply persuasive,
and this only, so far as they rested on sound reasons, the valid-
ity or soundness of which reasons any court asked to adopt or
apply them might, and even should, look into for itself. If you
have time to drop me a note giving me, ever so briefly, your
views as to the true office and use of adjudged cases in our law,
I shall be much obliged.
Very sincerely yours,
JoBN F. DILLON.
Mr. JUSTICE MILLER, Washington, D. C.
WASHINGTON, Nov. 16, 1885.
Hon. JOHN F. DILLON : —
MY DEAR JUDGE, - I am in receipt of yours of the 13th
instant. The subject you suggest is one which necessarily
demands the careful consideration of any judge of a court of
last resort. The value of authorities, and especially of judi-
cial decisions, in enabling him to make up his own judgment in
cases before him is often a question of no little anxiety. The
answer must have large reference to the kind of cases in which
they are offered for his examination. -
There is a large class of cases, perhaps the largest, which must
be decided by principles that are not disputed. That is to say,
262 ZA WS AAWD 70A:/SPRUDEAVCE.
Lecture
IX.
Mr. Jus-
tice Mil-
ler's views
as to the
true office
of ad-
judged
CàSeS 1]].
our law.
that the propositions advanced by the counsel on opposing sides
are such as will be generally conceded, and need no support from
judicial decisions. In these cases, which in my experience are
the most numerous, the work of the judge is to determine from
the case before him, - that is, from the pleadings and the evi-
dence, — whether it falls within the principles offered by the
plaintiff or defendant for its solution, or within some modi-
fication of these principles which counsel of neither party has
adopted. The decision of this question demands the highest
exercise of the reasoning faculties of a mind well stored in those
general rules of law which lie at its foundation as a science, and
the aid given in such cases by the decisions of other courts is
not much. The scientific arrangement of the facts of the case
as seen in the pleadings and evidence, by a well-trained judicial
mind, must in this class be always the main reliance for a sound
administration of the law.
There is another class of cases, the decision of which turns
upon a construction of constitutions and statutes. In these the
decisions of the highest courts of the government which adopted
the Constitution or enacted the statutes should be conclusive in
most cases. In the construction of the Constitution of the
|United States, or an act of Congress, the decisions of the Su-
preme Court of the United States ought, until reversed by that
court, to be followed almost without question. That court has
given expression to the rule in regard to the construction of the
State constitution and statutes by the highest courts of the
States enacting them, in the adoption of the principle that
even in the case of co-ordinate and concurrent jurisdiction it
will follow those courts in the construction of the statutes and
constitutions of their respective States.
A third class of cases are those which arising under the gen-
eral rules of the common law, or in equity, and in which the
abstract reasons for one rule, or for another opposed to it, are
nearly balanced, where it is more important that the rule should
be established and followed with uniformity, than that one or
the other rule should prevail. In this class, if there are differ-
ences in the cases decided, the question should be determined
by the weight of authority. It is in this class of questions that
adjudged cases are most useful, and in which the examination
and comparison of them by counsel are of great aid to the court,
O OVA’ ZA. VV. A 7TS CAZAA’A CZTAEA’AS 7/CS. 263
•er-
and are likely to reward the labor of those who make the exami-
nation thorough. Perhaps to this class should be added those
in which the decisions of the courts have become “rules of
property,” governing the rights of parties to real or personal
property.
As regards the relative weight to be given to the different
courts whose decisions are relied on, it is more difficult to speak.
I shall say nothing of the value of the decisions of the English
courts in questions purely of common law or in equity. Not
because I underrate them, but because every one understands
their value, especially in equity and admiralty cases.
Leaving these, and the questions arising under State statutes,
the value of a decision is estimated by the character of the court,
or of the judge who delivered the opinion, or by both. These
vary much in the courts of the United States. Without being
invidious or undertaking to name other courts of high standing,
there are many things in the history and character of the Supreme
Judicial Court of Massachusetts which entitle its reported deci-
sions for the last hundred years to great consideration. But a
decision often has a merit apart from the standing of the court
in which it is made, owing to the high character of the judges
of the court, or of the judge who delivered the opinion. Opin-
ions delivered by such judges as Marshall, Taney, Kent, and
Shaw, have a value apart from the courts in which they were
delivered. Even the dissenting opinions of these men and their
obiter dieta have weight in the minds of lawyers who have a just
estimate of their character, which they cannot give to many courts
of last resort of acknowledged ability. After all, the convincing
power of the opinion or decision in a reported case must depend
very largely on the force of the reasoning by which it is sup-
ported, and of this every lawyer and every court must of
necessity be his and its own judge.
Very sincerely yours,
SAMUEL F. MILLER.
Note.
Mr. Jus-
tice Mil-
ler's views
as to the
true office
of ad-
judged
C8,SéS l]]
our law.
Lecture
Y.
The enor-
mous bulk
of our case-
law mainly
the prod-
uct of the
rule of ju-
dicial pre-
cedent.
LECTURE X.
OUR LAW. — THE WAST SIZE AND RAPID ACCUMULATION OF
CASE LAW CONSIDERED SPECIALLY WITH REFERENCE To
THE PRACTICABILITY OF LIMITING ITS GROWTH By LEGIS-
LATIVE ACTION RESTRICTING THE PUBLICATION OF THE
REPORTS OF ADJUDGED CASEs. – REMEDIES PROPOSED BY
LORD BACON AND LORD WESTBURY FOR THE OVERGROWN
BULK OF OUR STATUTE AND CASE LAw. — THE DOCTRINE
OF JUDICIAL PRECEDENT AND ITS EFFECTs. – Jup GMENT
OF THE AMERICAN BAR Associ ATION CONCERNING THE
PUBLICATION OF THE LAW REPORTs.
THE most striking phenomenon that arrests the
attention of the inquirer into the condition
of our laws and jurisprudence is their enormous
bulk. I have already referred to this subject, but
there are important aspects of it remaining to
be moticed. Irregular and intermittent legisla-
tion, especially in our own time, contributes not
a little to the overgrown size of our law; but
its vastness is after all mainly owing to judiciary
law, and the multitude of the law reports is the
direct result of the authoritative force of ad-
judged cases. If we add to the English and
American reports the statutes and the text-books
of both countries, a complete working law library
(and such a library is essential to thorough work)
OUR LA W: ITS HUGE BULK : REMEDIES. 265
consists, probably, of not less than ten thousand
volumes." As case-law constitutes the chief bulk
of our jurisprudence, the inquiry may well be
made, Why not keep it within more restricted
limits 2 This is the subject which I now proceed
to consider.
In the annual address which in 1884 I had the
honor to deliver before the American Bar Asso-
ciation, I made, among others, the following
observations : —
“The most distinctive feature of the common law
“of England and America is the rule of judicial
“precedent, or the binding force of adjudged cases
“as rules of decision for like causes. In no other
“system of jurisprudence is such force given to
“judicial judgments as in England and America.
“The result is that elsewhere the judicial reports
“are comparatively few, since judicial judgments
“have in general no authority and theoretically no
“higher rank than expositions or commentaries of
“private writers. The corresponding result is, ac-
“cording to a recent statement, that in 1881 the
“judicial reports of England numbered two thou-
“sand nine hundred and forty-four volumes, and in
“this country about three thousand, and they are
“increasing in the United States alone at the rate
“ of over one hundred volumes a year.” Where,”
I inquired, “is this multiplication of reports to
1 See ante Lecture III., p. 94, note; Lecture IV., p. 133, and Lec-
ture VI., pp. 172–183. The enormous bulk of case-law is further
illustrated, ante Lecture IX. and note, p. 250.
* In answer to a letter which I addressed to the librarian of the
New York Law Institute, inquiring as to the number of American
reports in his library, I received the following : —
Lecture
|X.
The num-
ber of the
law re-
ports.
266 LA WS AAWD 3'UAE/SPRUDEAVCA.
Lecture
|X.
Is the
huge bulk
of our case-
law reme-
diable %
“end ? Is it to go on unchecked indefinitely 3
“Is it desirable or practicable to check it? How
“far is it an evil; and if it be so, what is the
“remedy ? And,” I added, “these, Mr. Presi-
“dent, are inquiries of such serious moment that
“they may well engage the attention of the
“Association.” "
In preceding lectures I have referred to the large
accumulation and rapid multiplication of the law
reports, and have made some observations thereon.
What I have to say on this subject in the present
lecture is with some revision and enlargement what
I presented to the Association by request of the
Committee on Judicial Administration and Reme-
dial Procedure at its meeting in 1886, as the
grounds for the conclusion which the Association
reached, and which will be hereafter stated.” I
did not in the address before the American Bar
Association, above referred to, undertake to make
any direct answer to these questions. The Asso-
NEw York, Aug. 19, 1886.
DEAR SIR, - I regret deeply my inability, at this time, to furnish you
with more complete data than the following. The list below was carefully
compiled by my associate, Mr. William H. Winters.
Federal Reports to December 31, 1885 . . . . . . . . 409
Miscellaneous American Reports . . . . . . . . . . 208
American State Reports . . . . . . . . . . . . . 3, 186
3,798
American Law Periodicals, December, 1885 (the publication
whereof had been discontinued) . . . . . . . . . 575
American Law Periodicals, December, 1885 (then being pub-
lished) . . . . . . 702
Very respectfully yours,
JoBIN M. LODEWICK.
To Hon. JOHN F. DILLON.
1 Report American Bar Association, 1884, pp. 223, 224.
* Post, p. 289.
OUR LA W: ITS Aſ OGAE BOZA : REMEDIES. 267
ciation, however, adopted the following: “Re-
“solved, That so much of the annual address as
“refers to the evils of the system of reporting
“ the decisions of the courts be referred to the
“Committee on Judicial Administration and Reme-
“ dial Procedure, with a request that they report at
“the next annual meeting of the Association.”
Whoever has attentively considered this subject,
will, I think, agree that its difficulties are equalled
only by its importance. He will further agree, I
think, that we have reached a period in our legal
history when it is at least wise to stop and take an
observation, that we may know, if possible, where
we are and whither we are tending.
Speaking generally, our law is composed of two
main constituents: First, statute law (including, in
this country, constitutional law); and second, judi-
ciary or case law, - that is, the law made by the
judges in the ordinary exercise of their judicial
functions.
It was long a favorite fiction that the judges did
not make, but only declared, the law. But it is no
longer denied, nor can it be, that the judges in
the process of the interpretation of statutes, espe-
cially where they extend them to cases without their
letter but within their supposed reason or equity
or general utility, as well in cases which, where
the statutes are silent, they decide by rules de-
duced from previous decisions, or decide by refer-
ence to the principles of natural right or universal
justice, are actually, though indirectly, engaged in
legislating, since they formulate, or at least authen-
ticate, the rules which they apply to the transactions
Lecture
Y.
Resolution
of the
American
Bar Asso-
ciation as
to the evils
of the
system of
law re-
porting.
The two
main con-
stituents
of our law.
268 A WS AAWD 50R/SPACOZ)/EAVCE.
- ame
in hand; and these rules constitute the grounds of
the judgments they pronounce."
Since statutes must, of necessity, be expressed in
general terms, and since no human foresight is
competent to anticipate, and no human wisdom
able to provide for all of the cases, or even all
the classes of cases, which will arise out of the
endless variety and diversity of human affairs,
the work of indirect judicial legislation, such as
the judges have been accustomed and obliged to
perform, is, as it seems to me, an essential and
permanent part of any system of jurisprudence.
This function of the judges may be limited, and it
ought to be, by the enactment of legislative rules
of conduct or decision wherever it is wise and
practicable to do so. But it can never be en-
tirely abrogated until the impossible work shall be
achieved of a legislative provision in advance for
all possible combination of circumstances and cases.
And therefore, if we had a code as complete as
human skill and care could make it, the work of
judicial interpretation would still be necessary, and
the duty of adjudicating cases not expressly pro-
vided for in it would still have to be performed.
And thus judicial legislation would still go on. Yet
it by no means follows that such a code is not highly
to be desired. Indeed, according to my best judg-
ment, — and I have given the subject, first and last,
much thought, — codification, that is, a practicable
and not a visionary scheme of codification, is, when
reduced to its last analysis, mainly a matter of de-
gree and form; namely, how far it is expedient and
Lecture
Y.
Indirect
judicial
legislation
a necessary
part of any
judicial
System.
Codifica-
tion only
a limited
remedy for
the bulk
of our case-
law.
1 See ante Lecture I., p. 5.
OUR LA W: ITS HUGE BOVLAT, REMEDIAE.S. 269
wise to carry the process of legislation. On this
subject the bar have, and no doubt will continue
to have, very different views."
The problem of codification will probably have
to be determined bit by bit, and we must be content
to take one step at a time. But whether we shall
codify en bloc, or in compartments, or not at all,
there will never come a time when all our laws will
be in the form of statutes; never a time when judi-
ciary law — that is, law which is evolved in and by
the very act of administering justice —will not form
a part of our legal system. It is only a question, at
any given period, how far it is necessary or expe-
dient to transmute the judiciary law into statutory
form. At the bottom, this is the question that at
this time the unmanageable number and constant
multiplication of the reports of judicial judgments
and opinions (which are the source or evidence
of judiciary law) are pressing upon us for solution.
There inevitably comes a stage in the legal history
of every people when its laws become “so volu-
minous and vast” that an authoritative and sys-
tematic recompilation or restatement of them is
necessary, to the end that they may be accessible
and of (to use, in default of a better, Bentham's
uncouth but expressive word) cognoscible bulk, if
not to those who are governed by them, at least
to those whose business it is to advise concerning
them, and to those whose duty it is to administer
and apply them.”
1 See ante Lecture IX., p. 255, and note.
* See ante Lecture VI., p. 176. “Cognoscible” is not Austin’s word.
See Austin, “Jurisprudence,” 5th ed., lecture xxxix., p. 660. Clark,
Lecture
X.
*mºmºsºmºsº
Systematic
recompila-
tion and
restate-
ment of
our laws
necessary.
27O ZA WS AAWD 50RISPRUDENCE.
Lecture
X.
Merits and
advantages
of our law
reports :
Bentham’s
admission.
The Roman law, by means of commentaries on
the text of the Twelve Tables and on the Pretorian
Edict, by imperial constitutions, decrees, edicts, and
rescripts, had, before the time of Justinian, attained
to such proportions that it was said to be the load of
many camels. The Roman situation was tolerable
compared with ours. Our judiciary law, which em-
braces that of England, now runs back through six
centuries, without revision or authoritative restate-
ment." It is scattered through volumes so numerous
that the memory is taxed to remember even their
names, that only the rich can buy them, and that
the practicable industry and strength of no single
lawyer can examine, much less study and digest
them.
I shall not enter upon the discussion of the
characteristics and respective merits and advantages,
under various conditions, of statute and case law.”
The usefulness and value of the law reports and of
the materials they contain must be admitted by all.
Even Bentham, who combined the iconoclast with
the reformer, and who denounced with unsparing
severity judge-made law for its “confused, un-
“ determinate, inadequate, ill-adapted, and incon-
“sistent” character, admits that if you “traverse
“the whole continent of Europe, ransack all the
erroneously as I think, ascribes the term to Austin. “Practical Ju-
risprudence,” p. 382. See Imperial Dictionary, - Cognoscible.
1 See ante Lectures I., p. 29, WI., p. 184, note.
* This subject is fully presented by Austin and by his commen-
tator Clark. Austin’s “Jurisprudence,” vol. ii., 5th ed., by Campbell,
Lectures xxxvii.-xxxix., pp. 620–681 and notes p. 1021 et seq.; Clark,
“Practical Jurisprudence: A Comment on Austin,” part ii., chaps.
IV.-W1.
OUR LA W. ZTS HUGE BULK, REMEDIES. 271
“libraries belonging to the jurisprudential sys-
“tems of the several political States, add the
“contents all together, you will not be able to
“compose a collection of cases equal in variety,
“in amplitude, in clearness of statement — in a
“word, in all points taken together, in instructive-
“ness — to that which may be afforded by the col-
“lection of English “Reports of Adjudged Cases,”
“on adding to them the ‘Abridgments and Trea-
“tises,’ by which a sort of order, such as it is, has
“been given to their contents.” "
Let all this be granted, yet as against the merits
and worth of this colossal body of judiciary law
must be set off inconveniences and defects of such
a character that they have at length become posi-
tive evils, or at least serious mischiefs. I cannot
stop to enumerate all of these. Those which chiefly
concern the present discussion relate to the already
huge bulk and to some extent the consequent un-
certainty of our case-law.” How this state of things
has been brought about is obvious enough. Thou-
sands of useless cases — that is, cases turning on
their special facts, and those of no general interest,
as well as those which are mere repetitions, and
which add nothing to the law — have been and are
constantly being reported. Multitudes of cases have
been questioned, limited, and overruled. The re-
ports abound in cases which are conflicting. The
simplest heads of the law are overlaid with a moun-
tainous mass of decisions, which grows day by day.
1 Bentham's Works, vol. iv., p. 460; 10 Ib., 511. See ante Lecture
VI. ; post Lectures XII., XIII.
* See ante Lecture IX, p. 248 et seq.; post Lecture XII.
Lecture
Y.
*s
Inconve-
niences
and de-
fects of our
case-law.
272 IA WS AAWD 3'OR/SPA’UDAEAVCE.
Lecture
X.
Ilord
Bacon’s
scheme
of law
amend-
ment.
===s
To an examination, study, and comparison of this
vast body of law, with such aids as digests and
text-books can give, is the legal inquirer remitted
and doomed in his toilsome search for the exist-
ing law in cases which are not provided for by
an adequate statute."
The mischiefs thus produced have long been felt,
but the difficulty of remedying them has also been
felt or feared to be so great that remedies, though
at times suggested and urged, have never been com-
prehensively or systematically applied. So far as
any remedy has been adopted, it has been by means
of fragmentary and extemporary legislation.
Over two hundred and fifty years ago, when the
evils arising from the accumulation of statutes and
reports were immeasurably less than at present, the
greatest intellect, as well as one of the greatest
lawyers which England has produced, gave to
1 Under modern conditions it has by some been doubted whether
the rule of precedent, in the broad scope and imperativeness which we
have given to it, is the source of more certainty than uncertainty in the
law. To a considerable extent it doubtless tends to make the law cer-
tain by depriving the judges of the liberty of deciding like cases con-
trary to precedent unless the precedent is plainly erroneous; but what
is a like case, and whether the precedent is considered erroneous,
can often be known only after the judgment of the court in the
very case in which the question arises. On the other hand, a most
fruitful source of uncertainty, as every practising lawyer knows full
well, is found in the very multiplicity of cases, sometimes conflict-
ing and often full of the refinements and distinctions so characteris-
tic of judicial reasoning and discussion. When the judges resort, as
they frequently do, to analogies supposed to be furnished by previous
cases for the rule of decision to apply to the case in hand, it must
often be extremely uncertain in advance what the result will be, and
it is frequently doubtful whether, fettered in this way, they reach as
sound results as if governed by general considerations of what is right
and just. See ante Lecture IX, pp. 24.8—252; post Lecture XII.
OUR LA W. ZTS HUGE BULK, RAEMEDIES. 273
the subject the most thoughtful and well-advised
consideration. I refer to Lord Bacon." With him
the amending of the laws of England was ever a
favorite subject, and one to which he often turned
in the intervals when he was not pursuing the
baubles of official distinction, and upon the accom-
plishment of which, after his sad and melancholy
fall, he courageously entered in his old age un-
aided and alone; but to use his own language,
“finding it a work of assistance, and one which
“he could not master by his own fancy and
“pen,” he reluctantly laid it aside. His plan was
comprehensive. It embraced the reduction of both
the statute and the common laws to a system.
His method of dealing with the statute law may
be outlined in his own words: “For the re-
“forming and recompiling of the statute law, it
“consisteth of four parts. 1. To discharge the
“books of those statutes where the case, by altera-
“tion of time, is vanished. . . . 2. To repeal all
“statutes which are sleeping and not of use, but
“yet smaring and in force. . . . 3. The grievous-
“ness of the penalty in many statutes mitigated.
“. . . 4. The reducing of concurrent statutes, heaped
“one upon another, to one clear and uniform law.”
What he proposed to do with judiciary or case
law I shall notice more at length, because it is
especially relevant to my present purpose, and
shows that at that early day the subject was
comprehended in all its bearings
His scheme for compiling and amending the laws
of England, as proposed to King James, consisted
1 See ante Lecture II., p. 46 et seq.; Lecture IX, p. 259.
Lecture
X.
**t
Bacon's
proposed
method of
dealing
with stat-
ute law.
18
274 ZA WS AAWD jº/R/SPRUDEAVCAE.
of two parts, – “the digest or recompiling of the
common laws, and that of the statutes.” By the
former, he intended mainly “the reducing or per-
fecting of the course or corps of the common law ; ”
by which he meant “that there is to be made a
perfect course of the law,” in serie temporis, or year-
books, as we call them, “from Edward I. to this
day.” In compiling which there are to be observed
the following points : —
1, All overruled cases are to be left out.
2. There are also to be left out “all cases, wherein
“that is solemnly and long debated whereof there
“is now no question at all, but the judgments only
“ and resolutions shall be included, without the ar-
“guments, which are now become but frivolous; ”
that is, unnecessary. The decided cases to be ac-
companied, however, with a memorandum explain-
ing why the cases are not given at length, and
where they may be found.
3. All cases “merely of iteration and repetition
are to be purged away; ” and of “cases of identity
“those which are best reported and argued to be
“retained instead of the rest,” with a proper refer-
ence to the omitted cases where the point is argued
at large.
4. Conflicting cases to be “specially noted and
“collected, that they may be put into certainty,
“either by assembling all the judges in the Ex-
“chequer Chamber or by Parliament.”
5. “All idle queries, which are but seminaries of
“doubts and uncertainties, are to be left out, and
Lecture
Y.
Bacon's
plan of
dealing
with case-
law.
1 Works of Lord Bacon, Montagu's Ed., vol. ii., pp. 229, 233,
American reprint.
OUR LA W. ZTS HUGE BöſLA REMEDIES. 275
r—
“no queries set down but of great doubts, well
“debated and left undecided for difficulty; but
“no upstarting queries which were better to die
“than to be put into the books.”
6. Cases reported with too great prolixity to have
their tautologies and impertinences cut off, and put
into a more compendious report. -
The course being thus compiled, for the future
the cases should be reported by official reporters,
“who should be grave and sound lawyers, with an
honorable stipend.”.” When we consider the com-
paratively small number of statutes and reports
which existed at that time, the scheme which he
propounded was practicable, “with assistance,” and
if executed as proposed would have greatly reduced
the bulk and improved the condition of the Eng-
lish law. It will be noticed that Bacon's proposal
was not what would be called radical, and that it
related more to the form than the substance of
the law. Indeed, he was careful to say that “the
“work, which I propound, tendeth to pruning and
“grafting the law, and not to ploughing up and
“ planting again ; for such a remove I should hold,
“indeed, for a perilous innovation.” But his scheme
was not executed, and his suggestions bore no fruit.
Statutes and reports kept on accumulating for
nearly two hundred years, when Bentham appeared;
and for the evils arising from the inaccessibility,
bulk, and uncertainty of the English law, he pro-
posed as a remedy what he termed codification.
Exactly what he meant by codification, and how
1 “A Plea for Official Reporting,” strongly urged by Mr. Westlake,
will be found in “Juridical Society Papers ” (1863), vol. ii., p. 745.
Lecture
Y.
Bentham’s
remedy for
the bulk
and uncer-
tainty of
the Eng-
lish law.
276 LA WS AAWD 3'URISPRUDENCE.
Lecture
X.
Action of
the Eng-
lish Law
Amend-
ment
Society.
far his views are sound or practicable, are topics
which I reserve for subsequent discussion. I pause
only to observe that it was the character, condi-
tion, and faults of judiciary law, that mainly sug-
gested to him the idea of a code as the proper
corrective or remedy. Bentham died, but his sug-
gestions of a code as a cure for existing evils
have given rise to the still pending controversy
between the advocates of statute and of judiciary
law. Judgments may differ as to what a code
means or implies, and how far a code is expedient,
or how far it is practicable; but it is clear that
resort to the legislature for comprehensive legis-
lation on special subjects, which is in the nature
of codification, if it be not codification itself, is
more and more practised, and seems to be gradu-
ally leading the way to the eventual solution of the
Question of codification.
At a quite recent period the English Society for
the Promotion of Law Amendment favored a method
of dealing with the English reports substantially the
same, it seems to me, as Lord Bacon's method above
described. In March, 1863, that society adopted a
resolution that “it is highly expedient that the re-
“ ported decisions of our superior courts of law in
“England and Ireland, from the earliest to the pres-
“ent time, should be forthwith expurgated and con-
“solidated, and their undue accumulation for the
“future be, if possible, prevented.”"
Lord Chancellor Westbury, as late as 1865, pro-
posed from the woolsack to the House of Lords,
1 See “The History and Origin of the Law Reports,” by Mr. W.
T. S. Daniel, Q.C., passim. -
OUR LA W. ZTS, AIUGAE BOZA ; REMEDIES. 277
among other projects of law reform, “to revise
“and expurgate the unwieldy and still increas-
“ing mass of the decided cases, reducing them to
“such as constituted the body of existing authori-
“ties, and which might, in their turn, be digested
“and arranged.” This, it will be perceived, is sub-
stantially Lord Bacon's plan. As Lord Westbury
soon afterwards closed his official career, like his
great predecessor, with the loss of the public con-
fidence, — growing out of alleged laxity of adminis-
tration, and not out of anything that touched his
personal honor, −the stupendous undertaking which
he proposed was not enacted by Parliament. The
next year (1866), however, a royal commission was
appointed “to inquire into the expediency of a Di-
“gest of Law, and the best means of accomplishing
1 Lord Westbury's scheme was comprehensive, embracing both
case-law and statute law. As to case-law, his plan was to expurgate
or “eliminate every case that does not enter into or illustrate or show
the application of some portion of living law.” . . . “What remains
after this pruning will be arranged under heads according to the most
perfect analysis that can be framed; and thus will be formed a com-
plete digest of the cases which embody or illustrate or teach the
application of the existing law.” “The result will be,” said Lord
Westbury, “a body of recorded precedents brought into a moderate
compass, and occupying, we may estimate, but a tenth of the bulk of
the present reports.” In 1865 he proposed “a bill to complete the
expurgation of the Statute-Book, by which the statutes of the realm,
now extending over forty-six large quarto volumes, will be reduced
to one fourth of that bulk.” This to be “followed by a proposal to
appoint a commission for making a complete digest of the whole
body of English law,” the statute and case law to be arranged as far
as possible under the same heads. He explained that “the digests of
the statute and case law are not regarded by me as final works; they
are materials only, to serve for the formation of a code.” Nash, “Life
of Lord Westbury,” vol. ii., pp. 61, 92, London, 1888. See, further,
Mr. Hawkins's paper on Digests and Codes, “Juridical Society Papers,”
(1865), vol. iii., p. 110.
Lecture
YC.
Lord
West-
bury's
scheme
of law
amend-
ment.
The Royal
Commis-
sion of
1866
a CCO IIl-
plished
nothing.
278 LA WS AAWD # CVR/SPA’UDEAVCAE.
Lecture
|X.
Bacon’s
and West-
bury's
scheme
practi-
cable.
“that object, and of otherwise exhibiting in a com-
“pendious and accessible form the law as embodied
“in judicial decisions.” This commission was com-
posed of some of the most eminent men of the pro-
fession. But it accomplished nothing. It neither
agreed upon the plan of the work nor the manner
of having it done. It was unable to settle upon
any recommendation except that a Digest was ex-
pedient, and that the work, based on a comprehen-
sive plan, and with a uniform method, should be at
once undertaken."
Such a work as Lord Bacon and Lord Westbury
proposed can be executed, but it is a work so vast
and difficult that it cannot be accomplished without
the authorization and aid of Parliament.” I venture
1 Lord Cranworth was the chairman of the commission, and on
his death Lord Westbury became the chairman. Among the com-
missioners were Lord Hatherley, Lord Cairns, Lord Penzance, Sir
Erskine May, Sir Roundell Palmer (Lord Selborne), Mr. Justice
Willes, and others. Nash, “Life of Lord Westbury,” vol. ii., pp. 160,
161, 169, 170.
* It is not possible to doubt that the bulk of the existing law
can be greatly and, if the work be properly done, advantageously
reduced. This is, in fact, demonstrable both by reasoning and
examples. Cases do not constitute the law, but are illustrations
and practical applications of its general principles. These prin-
ciples are comparatively few. Lord Mansfield went to the pith and
marrow of the business when in a passage to which I have hereto-
fore referred (ante, p. 182), he said: “The law does not consist of
particular cases, but of general principles which are illustrated and
explained by these cases.” Rex v. Bembridge, 3 Douglas Reports, 332,
1783. It is, therefore, practicable to extract these principles and state
them in authoritative form. This is, undoubtedly, as Lord Hale says, “a
very choice and tender business,” and must be performed deliberately
and by the most competent hands. Mr. Justice Stephen's Digest of
the Law of Evidence is an example, among others, of what may be
done in this direction. Mr. Taylor's Treatise on Evidence contains,
says Mr. Justice Stephen, 1,797 pages, refers to 9,000 judicial deci-
OUR Z.4 W: WTS HUGE BULK, REMEDIES. 279
to add that Lord Westbury's plan — namely, first
a complete digest of case-law and also a complete
digest of statute law as preliminary to codification,
whether gradual or en bloc — has always seemed to
me the safe and expedient method of doing the
work.
The conservatism of the English bar is shown in
the comparatively small results that came from the
agitation of the subject of law amendment, revived
or commenced in 1863–65. The special evil which
seemed to be felt, or rather perhaps the only one
which the bar considered to be remediable by its
action, consisted in the number of regular and irre-
gular reports, the latter consisting of the decisions
as published and duplicated in law periodicals, such
as the “Law Journal,” “Jurist,” “Law Times,”
“Weekly Reporter,” etc., in each of which, as well
as in the regular reports, were practically given
all the decisions of all the principal courts, many
of which really contained nothing new or valu-
able. Wheſſ the bar came to deal with the sub-
ject of legal reform, they shut their eyes to the
past, or to any general view of the subject, and
sions, and cites nearly 750 Acts of Parliament. Greenleaf's work is
quite as extensive. Now Mr. Justice Stephen extracts the essential
principles of the law of evidence, states these with precision, illus-
trates them by examples, arranges them in a systematic form in 143
articles, – all of which, with annotations and references to the Amer-
ican cases by Professor Chase, is brought within the moderate com-
pass of 245 pages. The codification in 1882, by authority of an Act
of Parliament, of the law relating to commercial paper, is another
example of the condensation to which it is practicable to subject our
overgrown and expanded law. Stephen's Digest of the Criminal
Law, although not enacted by Parliament, is still another striking
proof of the same fact.
Lecture
|X.
Remedy
devised by
the Eng-
lish bar
for the
evils in
the system
of law re-
porting.
28O LA WS AAWD 90A/SPA’UDAEAVCE.
Lecture
Y.
Action of
the Eng-
lish bar
... COIn Cerrl-
ing the
system of
law report-
Ing.
—-
undertook only to deal with the minor matter of
the existing methods of law reporting. What they
did in this respect is, I think, well worth know-
ing, and I will briefly state it. It has a very
direct bearing upon the special subject of this
lecture, — namely, the expediency of legislation
directed to the restricting of the publication of
reports of adjudged cases. -
In November, 1863, influential members of the
English bar requested the Attorney-General to call
a meeting of the bar for the purpose of ascertain-
ing their opinion as to the existing system of law
reporting, with a view to an amendment thereof.
At a meeting held in December, 1863, convened
by the Attorney-General, it was “Resolved, that, in
“the opinion of this meeting, the present system of
“preparing, editing, and publishing the reports of
“judicial decisions in this country requires amend-
“ment.” A committee of twenty-two members of
the bar was appointed to consider the matter, con-
sisting of the Solicitor-General, the Queen's advo-
cate, and eight Queen's counsel, nine members
of the outer bar, and three equity draftsmen.
This committee, through a sub-committee, com-
municated with foreign jurists to inquire into the
mode of recording and reporting judicial decisions
in the various European States, and in the United
States of America. The facts as ascertained by
them are very instructive, and are stated in the
margin." -
1 “To begin with the system adopted in France. Every judicial
decision is required to be in writing, and to be motive ; that is, to
disclose on the face of it the grounds and reasons on which it is
OUR LA W: IZS Aſ OGAE BUZA ; REMEDIAES. 28 I
The scheme of reporting recommended was that
the matter should be placed under the general con-
founded; and when the signature of the President of the Tribunal
has been affixed to these solemn judgments, it is the business of the
greffier to see them entered on the register of the courts, and only
one version of them can therefore ever legally appear. The record of
the tribunals thus containing an authentic version of every decision,
the legal profession and the public have at all times access to the
register to ascertain what has from time to time been decided, and it
is competent for any one to make from the register a selection of such
decisions for publication. The collections of decisions by Sirey and
Dalloz and Ledru Rollin have been thus prepared. Though these
works are deservedly held in great esteem, they are not official publi-
cations, any more than any series of English law reports.
“In Norway and Sweden, the judgments of the ordinary tribunals
are always given in writing, and every case entered on the protocols
of the courts; and in the Supreme Courts of Appeal, when the votes
of the judges are given separately, it is the business of the registrar of
the court to enter on the records of the court, not only the final judg-
ment or conclusion, but the grounds and reasons of the decision of
each judge. Here, as in France, therefore, the records of the courts
supply ample materials for the preparation of books or collections of
decisions, and such publications are left wholly to free trade.
“In Denmark, though it is competent for any one to take down,
print, and publish reports of cases and decisions of which he has him-
self taken notes, the only authentic version of judicial proceedings is
the entry in the dombistocol, under the hand of the judge, containing
not only the conclusion itself to which the court has arrived, but the
facts and reasons and grounds of the decision; and from these, selec-
tions of cases which may serve as precedents are made by the direc-
tion of the courts, though it would seem that other selections made by
competent private publishers would be received with equal attention.
“In Italy, all judicial decisions, whether civil or criminal, must be
read aloud in open court with the grounds in fact or law set out at
length; and authentic minutes of the judicial opinions so pronounced
are duly entered in the register of the court; and compilations of the
principal decisions of the four Supreme Courts of Cassation at Milan,
Florence, Naples, and Palermo, are published by voluntary editors,
Whose province it is to make a proper selection of cases for publica-
tion, to give an analysis of them in the head and marginal notes, and
to explain and illustrate them in other annotations. These compila-
tions only so far receive the protection of the State that a certain
number of copies are subscribed for out of the public treasury. The
Lecture
282 ZA WS AAWD 70/º/SPACODENCE.
Tlecture
Y.
The pres-
ent system
of English
law report-
ing.
Conclu-
sions
summed
up.
trol and management of a council composed of
members appointed as follows: Two by Lincoln's
Inn, two by the Middle Temple, two by the Inner
Temple, one by Gray's Inn, one by Serjeant's Inn,
and two by the Incorporated Law Society. The
result of this movement was the establishment of
the present system of law reports in England, under
the direction of the Council of Law Reporting.
Let me sum up some of the conclusions to which
the foregoing discussion seems to lead.
In continental Europe, the superior tribunals are,
as we have seen, required not only to put their judg-
ments, but the reasons and grounds thereof, in writ-
ing, and to enter the same of record. So in England,
the superior courts either give written opinions or
orally pronounce their opinions, – that is, the rea-
sons and grounds of their judgment; and these are
taken down by the reporter and revised by the
judges, and when published with a statement of the
case, constitute the judicial reports. In this coun-
try it is generally required by statute, or at all
events it is the universal practice, for the appellate
courts to give written opinions. The wisdom of
this course may not only be inferred from the uni-
versality of the practice, but rests upon obvious
reasons. It necessarily secures for the cases decided
more thorough examination, discussion, and consid-
compilation entitled “La Legge Romana’ is a journal of judicial and
legislative proceedings for the kingdom of Italy, published at short
intervals (the judicial three times a week), and containing in an
abridged form notes taken from the minutes in the registers of all the
important cases disposed of.” "
a The “Jurist’ (London), New Series, vol. x., part ii., p. 249.
OUAE LA W. ZZ S A. O'GZ B&WLR A&AEMA D/AE.S. 283
eration on the part of the judges. The bar are the
real constituency of the bench, and the opinions of
every conscientious judge are written under the eye
of a scrutinizing and intelligent profession."
The practice of judges of inferior courts to give,
when practicable, written opinions is for like rea-
sons to be commended rather than discouraged,
since it tends to secure better results in the admin-
istration of justice. A wise rule of the Supreme
Court of the United States, as well as of many of
the State courts, requires any written opinion of
the inferior court in the cause to be sent up as part
of the record on appeal.
The next question is, How far is it desirable that
judicial opinions should be reported ; that is, pub-
lished for the information and use of the profession ?
The theoretical answer to this inquiry is in the
present state of the law plain enough ; namely, that
only such cases ought to be reported as are useful
as precedents or constitute new developments of the
law, or overrule or limit former decisions, or newly
construe legislative enactments, etc. But the diffi-
culty is, who is to judge of this? It will hardly do
to leave it to the reporter, and it is useless to leave
it to him if he has a pecuniary interest in the mul-
tiplication of his reports. It is almost equally
useless to leave it to the judges, since a judge who
has laboriously examined a cause and written a
careful opinion therein will very naturally conclude
Lecture
The law
reports a
continuing
necessity.
that it is worth reporting. As a practical result,
the body of the opinions of the courts of last re-
* Ante Lecture I., p. 31, and note; Lecture VI., pp. 189-193.
284 LA WS AAWD 90R/SPRUDENCE.
Lecture
Y.
Whether
reports of
inferior
Courts are
useful.
Publica-
tion of
dissenting
opinions.
sort will continue to be reported, however desirable
it may be that cases which wholly turn upon the
facts, and cases of “mere iteration and repetition,”
should not be included in the official reports.
A more doubtful question, perhaps, is, Whether
it is desirable that the publication of the reports
of courts inferior to the courts of last resort should
be discontinued. I say this is, perhaps, a more
doubtful question, since many lawyers seem to be
of the opinion that such reports, containing many
ill-considered opinions, really embarrass (partly by
reason of the doctrine of judicial precedent) rather
than aid in the administration of justice. But
judges will not, as a rule, write opinions if they
are not to be published; and it is not, I venture
to say, expedient to adopt a policy which would
discourage or prevent that deliberate study of cases
which written opinions tend to promote and secure.
Besides, it would be impracticable to prevent their
publication in some form, either officially or unoffi-
cially. Written opinions when filed belong to the
public records, and it would be against first prin-
ciples to prohibit their publication by statute; and
without such prohibition they would find reporters
and publishers, so long as there was a demand
therefor which would reward the labor and expense
of the publication.
To keep the increasing bulk of case-law within
smaller limits, it has been suggested that dissenting
opinions should not be published. But on what
ground could this be justified ? Who is authorized
to assume that the majority is always right? Not
infrequently dissenting opinions are the sounder.
OUR LA W: ITS HUGE BULK, REMEDIES. 285
Such cases are always carefully considered, and the
majority and the minority judges set forth their
competing reasons and submit them to the fair judg-
ment of the bar. If a dissenting opinion is written,
it is a fact in the case, and its suppression or non-
publication, simply because it is a dissenting opinion,
can be defended on no ground either of principle or
of public policy. Who shall establish a censorship
over the publication of any class of judicial opin-
ions Ž It seems to me that this cannot be done
until we shall forget Milton’s plea, in which he
“rose to the height of the great argument,” for
the liberty of unlicensed printing. Even if the
utility of the publication of the decisions of infe-
rior courts or of dissenting opinions were doubtful,
I know of no principle on which their publication
ought to be prohibited by the legislature.
To thoughtful lawyers comparative jurisprudence
often suggests useful inquiries. We find in the Eng-
lish and American law an already unwieldy mass of
reports. In twenty years they will number ten
thousand volumes; in fifty years twenty thousand.
The jurisprudence of the continent of Europe pre-
sents no corresponding phenomenon. What is the
reason ? It is owing chiefly, I think, to the doc-
trine of judicial precedent, which in its breadth and
application is peculiar to our jurisprudence, since it
gives to appellate decisions authoritative force as
law, which the judges are bound to apply to all
cases they find to fall within the principle of the
previous decisions." This doctrine makes the re-
* See ante Lectures VI., p. 173; VIII., p. 229; IX, pp. 258, 259.
“To a certain extent it is true that the courts have held themselves
Lecture
Y.
Effect of
our doc-
trine of
judicial
precedent.
286 LA WS AAWD 9:0A/SPA’ODEMCE.
Lecture
X.
Effect of
judicial
decisions
in Euro-
pean
States.
===s
ports of adjudged cases almost as much a necessity
to the lawyer as the statutes.
In European States, judicial decisions have
generally no binding effect as precedents, and
hence the judicial reports are there relatively few."
And it is a question which may at least excite
inquiry, whether, in the present comparatively
matured state of our law, the doctrine of judicial
bound by authority as firmly as the pagan deities were supposed to be
bound by the decrees of fate.” Sharswood, “Law Lectures,” lecture ix.,
pp. 245, 246. “It is not to be denied that there is some difficulty in
settling with accuracy the limits of the maxim stare decisis. But
when the principle of a decision has long been acquiesced in, when
it has been applied in numerous cases and become a landmark in the
branch of the science to which it relates, when men have dealt and
made contracts on the faith of it, — to overrule it is an act of positive
injustice, and a usurpation by one branch of the government upon the
powers of another.” Sharswood, “Law Lectures,” lecture i., p. 45.
Within these limits the doctrine of stare decisis is of unquestionable
soundness and utility. In such cases the remedy is properly with the
legislature. If the courts overrule previous decisions, the new rule
retroacts and is liable to work injustice. If the legislature changes
the rule, the new rule acts only upon future cases.
1 Ante Lecture VI., p. 173; Lecture VIII., p. 229 et seq.; Lecture
IX., pp. 258, 259. Austin, “Jurisprudence,” 5th ed., lecture xxxix.,
p. 668. As to the modified form of case-law on the Continent, see
Pollock’s “Essays in Jurisprudence and Ethics,” p. 237. “The
courts,” he says, “not being bound by precedent as they are with
us, decided cases do not make case-law as we understand it” (p. 273).
But “in the present German Empire it would seem,” says Professor
Clark, “that the decisions of the Supreme Gerichtshof do practically
constitute precedents.” Clark, “Practical Jurisprudence,” Cambridge,
1883, p. 224, note. In an addendum the same author adds: “In
Austria the direct prohibition of reference to a previous judgment
has been still more distinctly modified. The Plenarentscheidungen of
the Supreme Court are binding precedents, and the Judicatenbuch,
since 1872, is an official record of them.” Ib., pp. 224, 264, note;
392, 404. He adds: “In some form of more or less authority the
influence of precedents has practically made its way into those very
systems which profess to exclude it.” Ib., pp. 263, 264; ante Lecture
IX., p. 258.
OUR LA W. ZTS, AIUGAE BULK, REMEDIES. 287
precedent, in the scope and rigor in which it
exists in English and American jurisprudence, is
now really a better doctrine than the modified
one which prevails generally in the Continental
system, which practically, although not theoreti-
cally, gives to the opinions and judgments of the
highest tribunals influential, but not in the sense of
our law authoritative and binding force. Judicial
decisions are part of European jurisprudence; they
lack simply, speaking generally, the element of
authority which they have with us.
As case-law is a necessary and indestructible
part of every jural system, and peculiarly of our
system, the publication of reports of adjudged
cases will probably continue in the future, as in
the past, without substantial restriction. So long
and so far as the bar finds the reports to be useful
they will be published, and I am unable to see any
material checks which we would be warranted, or
which it would be practicable, to put upon such
publication by legal enactment, however desirable
it is to keep case-law within more circumscribed
limits. Under present conditions there is no reason
to doubt that the legislative function will be exer-
cised, in the usual manner, as freely, and that the
judicial reports will continue to increase as rapidly
as ever, adding to the bulk, and to some extent to
the uncertainty of the law, and that this will go on
and on until the effect becomes at length insupport-
able. A remedy will then be found, for the inter-
ests of justice are primal and eternal, and are not
doomed to be crushed by the very machinery which
has been devised only to the end that justice may
Lecture
Y.
Difference
between
the Eng-
lish and
Conti-
mental
Systems.
Legisla-
tive re-
striction
on the
publica-
tion of the
reports
not prac-
ticable.
288 LA WS AAWD 9:0A/SPRUDENCE.
Lecture
Y.
What will
be the
remedy,
be promoted and secured. Whether that remedy
will consist in the breaking down or modification
of the doctrine of judicial precedent in the extent
and rigor in which it at present exists, of which
even now we see many signs," or in codification in
some expedient and practicable shape,” or in both,
* “A trait distinguishing him [the late Chief Baron Kelly] from
Some of his younger brethren was his grasp of general principles in
preference to decided cases. The modern lawyer is too apt to run to
his book-shelves for a case which has some resemblance to that in
hand, although the resemblance is frequently accidental. Of late
years Some powerful intellects on the bench have been directed to
the task of breaking down this unhealthy habit; but it is still a vice
of the time.” “A Generation of Judges, by their Reporter,” 1888,
article “Kelly.” The criticism does not alone apply to the modern
English lawyer; it is equally applicable to his American brother.
* “We have given,” says Professor Baldwin, “I cannot but think,
an undue prominence to judicial precedents as a natural source or
annunciation of the law. The multiplication of distinct sovereignties
in the same land, each fully officered, and each publishing in official
form the opinions of its courts of last resort, bewilders the American
lawyer in his search for authority. The guiding principles of our law
are few and plain. Their application to the matter we may have in
hand it is the business of our profession to make, and if we spent
more time in doing it ourselves, and less in endeavoring to find how
other men had done it in other cases, we should, I believe, be better
prepared to inform the court and serve our client. . . . The drift of
American jurisprudence is towards the expression of the law in an
orderly and official form; in other words, towards codification. It
has approached the question from the practical side, and in a prac-
tical way. The early colonies soon put their scanty statutes into
print, arranged in some convenient way for ready reference, the
various heads often following each other in alphabetical order, as
in our digests of reports. New York led the way towards a more
systematic and comprehensive treatment of the subject, by her Re-
vised Statutes of 1827, a revision which, though in many points revo-
lutionary, was so well considered and well done that it has held the
ground for over half a century, while in most of our States revision
succeeds revision every ten or fifteen years. But there is nothing dis-
tinctively American in codification. It is simply un-English. It is
the natural aim and end of every system of jurisprudence — of juris-
OUR LA W. ZZTS Aſ UGAE BOZA , A-ZMAE DAA.S. 289
or in something else, we may not be able to fore-
see; but that some cure will be discovered or
wrought is as certain as that law and justice are
the permanent and paramount interests of man
on earth. -
There are, so far as I am aware, no special evils
in the mode of reporting in this country, which
seem to call for correction. One fortunate circum-
stance in the situation is the low price at which
enterprising and rival publishing houses are now
furnishing the State and Federal reports. The
manner in which the judges shall write their opin-
ions cannot be prescribed to them. The profession
are, however, glad to see, in more recent years, a
quite general disposition in the judges to do less
essay-writing, and to hand down more compact and
shorter opinions, – a very desirable change, espe-
cially in cases which either turn on the facts, or
contain no new principles or no novel application
of old ones.
Influenced by these and perhaps other considera-
tions, the American Bar Association, without dissent,
expressed its judgment on the subject with which
this lecture mainly deals, by the adoption of the
following resolution : “Resolved, That while this
“Association records its approval of the present
“tendency of the judges to write short opinions,
“especially in cases turning on facts and those not
“useful as precedents, and doubts the utility, in the
prudence itself apart from any particular system of it. Jurisprudence
is the Science of law, and the orderly statement of its rules can be
called by no better name than code.” Address of Professor Baldwin,
of Yale University, before the Ohio Bar Association, July, 1892.
Lecture
X.
Manner of
reporting.
Resolution
of the
Agnerican
Bar Asso-
ciation
COI) Cel’Il-
ing the
publica-
tion of
the law
reports.
19
29O ZA WS AAWD jº/A/SPA’UDEAVCE.
Lecture
X.
“present state of the law, of the use of decisions
“of inferior or intermediate courts as precedents, it
“does not deem it practicable to interfere by legis-
“lation to prohibit or limit the publication of any
“class of reports, and that the evils of the great vol-
“ume of judiciary law must be remedied otherwise
“ than by legislation restricting absolute freedom in
“the publication of adjudged cases.”
If this is a sound conclusion, as I think lawyers
of experience will agree that it is, the continued
growth of our case-law, whatever its inconveniences
or evils, must be remedied in some other way, if at
all, than by legislation directed to restricting the
publication of the reports of adjudged cases.
A systematic, critical, and thorough discussion
of the English doctrine of judicial precedent, one
which shall go to the root of the business, I
cannot but think to be a desideratum in our legal
literature. This would involve a consideration of
the historical development of the doctrine; its ra-
tionale, policy, and purpose; its effects upon our
jurisprudence as respects certainty, bulk, conve-
nience, and utility; its true limits; its merits as
compared with the Continental doctrine or prac-
tice; the wisdom, under existing conditions, of a
modification of the scope and imperativeness of
the rule, and the proper discrimination to be made
in its application to different classes of cases."
A deside-
ratham in
our legal
literature.
* See ante, pp. 229–232 and notes, also p. 252, and Note at end of
Lecture IX., pp. 261–263. For a striking illustration of the rule of
judicial precedent as imperatively extending to cases which are held
to fall within the principle of a previous decision, though the facts are
different, see the important case of Lahr v. Metropolitan Elevated
Railway Company, 104 N. Y. Rep., 268, 1887. Ruger, C. J., delivering
OUR LA W. ZTS Aſ OGAE BOZAT, AEACMED/E.S. 29 I
wº--—
To prevent misapprehension it may be allowable
for me to add that I do not wish it to be inferred
from the observations I have made in the course of
this and other lectures, that I doubt the great value
of case-law or the general utility of the doctrine of
stare decisis. A leading objection made by Austin
to judiciary law is that it “compels the judge to
“take the narrowest possible view of every sub-
“ject,” and consequently “the law he makes is
“necessarily restricted to the particular case which
“gives occasion for its promulgation.”’’ This is
true, and this in my opinion is precisely as it ought
to be, since it is the surest safeguard against the
two grave perils of generalization and the arbitrary
and irresponsible exercise of judicial power. Judi-
cial decisions and their proper influence and effect
are of incalculable service, since counsel are thereby
the opinion of the court, which on this point was unanimous, said :
“The doctrine of the Story case (90 N. Y., 122), therefore, although
pronounced by a divided court, must be considered as stare decisis
upon all questions involved thereim, and as establishing the law, as
well for this court as for the people of the State, whenever similar
questions may be litigated. Wherever, therefore, the principles of
that case logically lead us, we feel constrained to go, and give full
effect to the rule therein stated, that abutters upon public streets in
cities are entitled to such damages as they may have sustained by
reason of a diversion of the street from the use for which it was
originally taken, and its illegal appropriation to other and incon-
sistent uses,” although such appropriation was expressly authorized
by legislative act.
In support of the view that judicial decisions are the source of the
law, -— that is, make it and are not merely the evidence thereof, - see
Austin, “Jurisprudence,” vol. i., passim ; Digby, “History Law of Real
Property,” 2d ed., p. 64, note; Pomeroy’s “Municipal Law,” Preface,
and §§ 284, 295, 298. Contrariwise, 1 Blacks. Com., Introduction,
p. 69, and the critical and scholarly discussion of Professor Hammond
in his edition of Blackstone, vol. i., pp. 213–226, note 30.
1 Austin, “Jurisprudence,” vol. ii., lecture xxxix., 5th ed., p. 657.
Lecture
One of
Austin's
objections
to case-law
not well
founded.
292 LA WS AAWD 9:0A/SPA’UDEAVCE.
Lecture
X.
Value of
judicial
decisions,
and utility
of the doc-
trine of
Siaº'e
decisis.
enabled to advise that a case clearly like those pre-
viously adjudged will be decided in the same way,
and they are also enabled more certainly to predict
the judicial judgment upon a new case than would
otherwise be possible. My doubts relate to the
pre-eminence and breadth of the doctrine of judi-
cial precedent as it exists in our law, or more pre-
cisely to its indiscriminate application without more
regard than is usually given to the character for
ability and learning of the court which rendered
the decision sought to be used as a precedent, and
to the nature of the case which is sought to be
brought within the uncontrollable authority of the
previous judgment.
And now I conclude this lecture with an expres-
sion of the hope that the suggestion above made
as to the desirableness of a bold, original, and
searching examination of the doctrine of prece-
dent may find lodgement in the soil of some fer-
tile mind here present, and bring forth hereafter
useful fruit. More the teacher cannot do. Paul
may plant, Apollos may water, but God giveth
the increase: and he giveth it in his own way,
which is always the right way; and in his own
time, which is always the right time, neither too
early nor too late.
I, ECTURE XI.
OUR LAW. — BLACKSTONE AND BENTHAM AS TYPES AND
ExPoNENTS OF THE CONSERVATIVE AND THE RADICAL
ForCEs, To WHosł, FREE PLAY IT owes ITS PROGRESS, AS
WELL As ITS DISTINCTIVE FORM AND CHARACTER. — THE
LITERARY, INSTITUTIONAL, AND HISTORICAL VALUE OF
BLACKSTONE’s CoMMENTARIES. — THEIR GREAT INFLU-
ENCE IN MOULDING THE LAWS AND JURISPRUDENCE OF
AMERICA.
IT is natural for some minds to revere the past, to
accept the present, and consciously or uncon-
sciously to resist agitation and change. It is equally
natural for other minds to question the wisdom of the
past, to refuse to accept its lessons or results as final,
to be discontented with them, and to welcome nov-
elty as the means of effecting improvement. This
mental classification obtains in the profession of the
law, - those who advocate change, which they call
reform; and those who resist it, being content with
what is, rather than to run the risks that almost
inevitably accompany innovation. It has been as
true in this country as it has immemorially been
true in England and elsewhere, that lawyers, as the
effect of their studies and position in society, have
naturally been attached to what is, and averse
to experiments. De Tocqueville noticed this, and
Lecture
YI.
The con-
servatism
of the bar.
294 LA WS AAWD 3'OR/SPRUDEAVCE.
Lecture
YI.
The com-
pensations
of conser-
vatism.
he declared that the profession of the law in the
United States was one of the great conservative and
conserving forces of the Republic. Voltaire, speak-
ing of lawyers as a class, characterized them as “the
conservators of ancient barbarous usages.” Rather
strongly put, doubtless; but the history of the law
plainly shows that the criticism is not wholly un-
just. Any legal form, doctrine, or institution sanc-
tioned by antiquity and precedent, no matter how
inadequate, archaic, or unjust it may in the course of
time have become, usually finds a body of defenders
in the legal profession. They are not only suspicious
of changes, but contemplate them with anxiety and
dread. The exceptional force of established usages
and precedent with all English-speaking peoples, is
intensified in the English and American lawyer, and
is so inveterate that radical changes are generally
unwelcome, and many necessary ameliorations in
the law have been forced upon the lawyers from
the outside, and have been effected only after stub-
born resistance on their part. Even Bacon, who
strongly felt the necessity of amending the English
law," declared that “new laws are like the apothe-
“caries' drugs; though they remedy the disease, yet
“they trouble the body.” This conservatism has its
undoubted compensations; but its immediate effect
is to obstruct and delay changes after the necessity
is apparent to the general observation and judg-
ment. The final result is, however, that every step
forward is, when taken, wisely taken ; and with the
1 See ante Lecture X.
2 Reading upon the Statute of Uses, Bacon's Works, vol. iii., p. 304,
(Montagu's Ed., American reprint).
OUR LA W. ZTS COMSERVA TYWE FOA'CE.S. 295
single exception of the adoption in many of the
States of the principle of an elective judiciary,” I do
not recall any great structural changes in the law
that have proved precipitate or unwise, or which
had to be undone. I see signs more or less Ominous
of threatened changes, chief among which are those
that menace the sacredness of contracts and the full
enjoyment of private property.” Happy will it be
for us if in this respect we shall be as fortunate in
the future as in the past.
Because of this tendency in our profession to con-
servatism, it is well that there are some minds that
incline in the opposite direction, and boldly call
upon the Past to vindicate and support itself. The
unfettered action of these contending forces and
the ceaseless struggle thus engendered produce in
the long run better results than the exclusive domi-
nance and sway of either would give. Coleridge
in a thoughtful passage observes: “It is the chief
“ of many blessings derived from the insular char-
“acter and circumstances of our country, that our
“social institutions have formed themselves out of
“our proper needs and interests; that, long and
“fierce as the birth-struggle and growing pains
“ have been, the antagonist powers have been of
“our own system and have been allowed to work
“out their final balance with less disturbance from
“external forces than was possible in the con-
“tinental States. . . . Now, in every country of
“civilized men, or acknowledging the rights of
“property,’ and by means of determined boun-
* See ante Lecture IV., p. 119. * See ante Lecture VII.
Lecturo
XI.
Coleridge
on the
opposing
powers of
perma-
nence and
progres-
sion in
the state.
296 M.A WS AAWD # UR/SPA’UDAEAVCE.
Lecture
XI.
Changes
in the law
inevitable.
“daries and common laws united into one people
“ or nation, the two antagonist powers or opposite
“interests of the state, under which all other state
“interests are comprised, are those of permanence
“ and progression.” "
This lecture and the next will exemplify these
truths in connection with the evolution of laws and
legal institutions. The conservative would never
make the needful amendments in the law. The
radical would err in the opposite direction of rash
or unwise action. Changes in the law of any pro-
gressive society are, from the very purposes of law
and from the very nature of society, absolutely
necessary. True wisdom consists in the adaptation
of law to the current state and true needs of the
social organism. It has been well said that “Juris-
“prudence itself has become a study of the living
“growth of human society through all its stages,
“ and it is no longer possible for law to be dealt
“with as a collection of rules imposed on society,
“as it were, by accident, nor for the resemblances
“ and differences of the laws of different societies
“to be regarded as casual. . . . Whatever has
“ceased to change is dead. The essence of stu-
“pidity (it was said by a great Frenchman) is the
1 Coleridge, “Church and State,” p. 19. Mr. Morley, commenting
on what he calls Stuart Mill’s “famous pair of essays on Bentham
and Coleridge,” says: “I can vividly remember how the ‘Coleridge’
first awoke in many of us, who were then youths at Oxford, that
sense of truth having many mansions and that desire and power of
sympathy with the past, with the positive bases of the social fabric
and with the value of Permanence in States, which form the repu-
table side of all conservatisms.” Critical Miscellanies by John Morley,
London, 1886, paper on “The Life of George Eliot,” vol. iii., p. 131.
OUR LA W. ZTS COMSERVA 77 VE FORCES. 297
“demand for final opinions. As Maine himself
“ said, the principle of progress, which is the same
“thing as the law of healthy life, is a principle
“of “destruction tending to construction.’” So
true is this that it may confidently be affirmed that
in a living and active society all law, whatever
its form, is in its very nature mutable and tempo-
rary, except those principles of justice and right
that are rooted in the moral convictions of enlight-
ened men. These and these alone endure, and it is
along these lines that the development of our sub-
stantive law and jurisprudence must proceed.
The subject of this and of the following lecture
is, shortly stated, “Our Law, - Blackstone and
Bentham as Types or Exponents of its Conserva-
tive and Radical Forces, and the nature and influ-
ence of their respective labors.” -
I select Blackstone rather than Eldon as the typi-
1 Pollock, “Oxford Lectures,” No. VI., on Sir Henry Maine and his
Work. Sir Henry Maine has presented this subject with character-
istic elegance and ability. With respect to progressive societies, he
lays it down “that social necessities and social opinion are always
more or less in advance of law. We may come indefinitely near clos-
ing the gap, but it has a perpetual tendency to reopen. Law is stable;
the societies we are speaking of are progressive. The greater or less
happiness of a people depends on the degree of promptitude with
which the gulf is closed. The instrumentalities by which law is
brought into harmony with society seem to me to be three in number,
Legal Fictions, Equity, and Legislation.” “Ancient Law,” chap. ii.
How rapid and great are the changes which the law undergoes in
active communities like those of England and America will be seen
by comparing the state of the law as it existed in Blackstone's time
and its improved condition as it exists to-day in both countries. The
final lecture of the course is largely devoted to setting forth and illus-
trating these changes. (Post Lecture XIII.) In short, in little more
than a century a large part of Blackstone is obsolete: at all events the
Commentaries have become a very incomplete mirror of existing law,
Lecture
|XI.
Progress is
the law of
healthy
life.
298 M.A WS AAWD 70A:/SPA’UDENCE,
cal conservative, for the reason that the nature of
Blackstone's celebrated work, the time of its pub-
lication (coincident with our separation from the
mother country), and its universal use and adop-
tion in the several colonies (afterward States of the
American Union) have given him in this country
an influence in moulding its laws and jurisprudence
which hardly ever fell to the lot of a law-giver, and
which certainly was never so extensively enjoyed
by an unauthoritative law-writer. In 1769 — just
six years before the commencement of the Ameri-
can Revolution — the first completed edition of
Blackstone's Commentaries appeared." It was at-
tacked and criticised on various grounds, and a dis-
position to undervalue it has been more or less
prevalent ever since. But its institutional value,
and especially its historic value as an authentic and
faithful mirror of the English law as the result of
legislation and adjudication, as it then existed, it is
difficult to overestimate. An unedited edition — or
an edited edition where the editor has kept his hands
off the text, such as the recent and valuable edition
of Professor Hammond, of Washington University,
St. Louis, Missouri, - will show the state of the law
at that time, and supply a standard that enables us
readily to perceive the great changes which it has
since undergone.”
Professor Pollock, of Oxford, a few years since
made some striking, and suggestive observations,
Lecture
XI.
Black-
Stone a
typical
COil Sel’V3,-
tive ; his
great
influence
on Amer-
ican law.
Superior
worth and
excellence
of Black-
stone's
Commen-
taries.
1 Post Lecture XIII.
2 Blackstone's Commentaries, edited for American lawyers by
William G. Hammond, with copious notes (Bancroft-Whitney Com-
pany), 1890. More fully, post Lectures XII, XIII. -
OUR LA W. ZTS COMSEAE VA TV VA. FOA'CES. 299
=—
in which I fully concur: “The typical achieve-
“ment of the eighteenth century,” he observes, “is
“Blackstone's Commentaries, which reduced to a
“form of singular literary excellence the matter of the
“authorities received as classical, and for the time
“being accepted as sufficient. Blackstone caught
“and expressed the spirit of his time with consum-
“mate skill, but he caught it only just in time.
“Hardly was his ink dry when Bentham sounded
“a blast that rudely disturbed the supposed finality
“of the common law, and (what was even a greater
“matter) the Independence of the United States in-
“sured the free and ample development of English
“legal ideas in directions and for purposes as yet
“unknown. With the nineteenth century we are
“started in a wide and ever-expanding field of new
“adventures.” "
I select Bentham as the typical radical or pro-
gressive, because he is in an eminent sense the
father of the efforts which have been made in the
English law during the last one hundred years
looking to its improvement or reform. He was
twenty-five years younger than Blackstone; and
it is a curious coincidence that Bentham attended
Blackstone's lectures at Oxford, which he afterward
so unsparingly attacked. To appreciate properly
the respective labors of these two eminent men, it
is first of all necessary to have an accurate notion
of the state of the English law at that period.
As the law of a nation cannot be justly estimated
1 Law Quarterly Review, July, 1887.
Tuecture
XI.
American
expansion
of English
law. Ex-
tract from
Sir Fred-
erick Pol-
lock.
Bentham
a typical
radical.
3OO £A WS AAWD 70k/SPRUDENCE.
Lecture without a study of the growth and condition of the
YI. tº tº ſº ge wº c i.e.
society out of which it springs and which it in turn
; regulates and governs, it is obvious that the general
law and condition of England at the period in question and
society
in Black-, the progressive improvement of the English people
stone's and ge tº
Biºs for the preceding seven hundred years have a direct
time. and important bearing upon the subject of this lec-
ture and the next. These have been so graphically
set forth by Macaulay that it will be most satisfac-
tory to you to hear his description in his own words,
which, although they are those of an unrivalled
rhetorician, are nevertheless words of judicial exact-
ness. In his article on Sir James Mackintosh,
written in 1835, Macaulay says: —
“The history of England is emphatically the
“history of progress. It is the history of a con-
“stant movement of the public mind, of a constant
“change in the institutions of a great society. We
“see that society, at the beginning of the twelfth
“century, in a state more miserable than the state
“in which the most degraded nations of the East
“now are. We see it subjected to the tyranny of
“a handful of armed invaders. We see the great
“body of the people in a state of personal slavery,
“the multitude sunk in brutal ignorance, and the
“studious few engaged in acquiring what did not
Macaulay’s “deserve the name of knowledge. In the course of
description
of the “seven centuries the wretched and degraded race
...” “became the greatest and most highly civilized peo-
º “ple that the world ever saw ; have spread their
“dominion over every quarter of the globe; have
“scattered the seeds of mighty empires and republics
“over vast continents, of which no dim intimation
OUR Z.A. W. ZTS COAVSEA. V.4 7/VE APOA’CE.S. 3OI
“had ever reached Ptolemy or Strabo; have created
“a maritime power which would have annihilated in
“a quarter of an hour the navies of Tyre, Athens,
“Carthage, Venice, and Genoa together; have car-
“ried the science of healing, the means of locomo-
“tion and correspondence, every mechanical art,
“every manufacture, everything that promotes the
“convenience of life, to a perfection that our ances-
“tors would have thought magical; have produced
“a literature which may boast of works not inferior
“to the noblest which Greece has bequeathed to
“us; have discovered the laws which regulate the
“motions of the heavenly bodies; have speculated
“with exquisite subtility on the operation of the
“human mind; have been the acknowledged lead-
“ers of the human race in the career of political
“improvement. The history of England is the
“history of this great change in the moral, intel-
“lectual, and physical state of the inhabitants of
“our own island.”
Nevertheless, Professor Freeman is, I think, un-
doubtedly right in insisting that to understand the
English Constitution and legal institutions one must
constantly keep in mind that for fourteen hundred
years, notwithstanding foreign conquests and in-
ternal revolutions, the national life has remained
unbroken. “At no moment,” he says, “has the tie
“between the present and the past been wholly
“rent asunder; at no moment have Englishmen
“sat down to put together a wholly new con-
“stitution in obedience to some dazzling theory.
“The growth of the unwritten Constitution has
“much in common with the earlier growth of the
Lecture
I.
The na-
tional life
of England
unbroken
for cen-
turies.
3O2 M.A WS AAWD 3'OR/SPA’UDENCE.
Lecture
XI.
Condition
of the Eng-
lish law in
Black-
stone's and
Bentham's
time.
“common law. It is simply another application of
“the Englishman's love of precedent.”"
It more immediately concerns us, however, to
inquire into the condition of the English law at
the period when Blackstone wrote and Bentham's
career began. Here let me avail myself of the vivid
portrayal of this subject by John Stuart Mill. Al-
though the passage is very familiar and quite
lengthy, it is so pertinent to the purpose in hand
and so superior to anything I could offer, I am
sure you will prefer that I should give you without
abridgment Mill's own language : —
“The basis of English law was, and still is, the
“feudal system. That system, like all those which
“existed as custom before they were established as
“law, possessed a certain degree of suitableness to
“the wants of the society among whom it grew up;
“that is to say, of a tribe of rude soldiers, holding
“a conquered people in subjection, and dividing its
“spoils among themselves. Advancing civilization
“ had, however, converted this armed encampment
“ of barbarous warriors, in the midst of enemies re-
“duced to slavery, into an industrious, commercial,
“rich, and free people. The laws which were suit-
“able to the first of these states of society could
“have no manner of relation to the circumstances
“of the second, which could not even have come
“into existence unless something had been done to
“adapt those laws to it. But the adaptation was
“not the result of thought and design; it arose not
“from any comprehensive consideration of the new
1 The Growth of the English Constitution, chap. i.
OUR LA W. MTS COMSAEA WA TYPE FORCES. 3O3
“state of society and its exigencies. What was
“done, was done by a struggle of centuries between
“the old barbarism and the new civilization ; be-
“tween the feudal aristocracy of conquerors holding
“fast to the rude system that they had established,
“and the conquered effecting their emancipation.
“The last was the growing power, but was never
“strong enough to break its bonds, though ever
“ and anon some weak point gave way. Hence the
“law came to be like the costume of a full-grown
“man who had never put off the clothes made for
“him when he first went to school. Band after
“band had burst; and as the rent widened, then,
“without removing anything except what might
“drop off of itself, the hole was darned, or patches
“of fresh law were brought from the nearest shop,
“and stuck on. Hence all ages of English history
“have given one another rendezvous in English
“law ; their several products may be seen all
“together, not interfused, but heaped one upon
“another, as many different ages of the earth
“may be read in some perpendicular section of
“its surface, the deposits of each successive period
“not substituted, but superimposed on those of the
“preceding. And in the world of law, no less than
“in the physical world, every commotion and con-
“flict of the elements has left its mark behind in
“some break or irregularity of the strata. Every
“struggle which ever rent the bosom of society is
“apparent in the disjointed condition of the part of
“the field of law which covers the spot; nay, the
“very traps and pitfalls which one contending party
“set for another are still standing, and the teeth,
Tlecture
I
John
Stuart
Mill’s
descrip-
tion of the
state of
the Eng-
lish law.
3O4. JA WS AAWD 90R/SPA’UDENCE.
Lecture
YI.
IMill’s
picture
mainly
true but
OWer-
colored.
“not of hyenas only, but of foxes and all cunning
“animals, are imprinted on the curious remains found
“in these antediluvian caves. In the English law,
“as in the Roman before it, the adaptations of bar-
“barous laws to the growth of civilized society were
“made chiefly by stealth. They were generally
“made by the courts of justice, who could not help
“reading the new wants of mankind in the cases
“between man and man which came before them,
“but who, having no authority to make new laws
“for those new wants, were obliged to do the work
“covertly, and evade the jealousy and opposition
“of an ignorant, prejudiced, and for the most part
“brutal and tyrannical legislature.”"
My judgment is that this picture, although true
in its great outlines, is overdrawn; the colors are
too deeply laid on, and overcharged. It should, I
think, also be borne in mind that for about six of
those seven centuries England had a regular Parlia-
ment, which certainly for the greater part of that
period cannot fairly be described by the epithets
used by Mr. Mill; and yet it was a legislature so
composed as to favor from the nature, if not the
necessities, of its constitution the interests of par-
ticular classes whenever these came in competition
with those of the general weal. This Parliament,
however, legislated for the whole realm. The gen-
eral statutes as well as the body of customary law
compendiously called the common law were uni-
form in their operation, and their authority and that
of the judges who administered them extended to
1 “Dissertations and Discussions,” by John Stuart Mill, American
reprint, vol. i., p. 393, essay on Bentham.
OUR LA W. ZTS COMSEAE VATIVE FORCES. 305
every part of the kingdom. These were great ad-
vantages, and they were advantages which were
peculiar to England."
1 The exceptional state of things from which the advantages referred
to in the text as being peculiar to England arose, is set forth with clear-
ness by Monsieur Emile Boutmy in his recent book on the “English
Constitution” (chaps. i.-V.). From the date of the Norman Conquest
(A. D. 1066) it is shown that the monarchy was strong in comparison
with the feudal nobility; that it early had the advantage of an execu-
tive machinery throughout the entire kingdom ; that the English jus-
tices in eyre held their assizes in every county; that from the twelfth
century the people enjoyed the good fortune of a homogeneous exist-
ence, were free from provincialism; that a strong feeling of nationality,
based on territorial unity and strengthened by the insular position of
England, was early developed; that local customs gave way before the
laws and justice which were administered by the King's judges, so
that “after the reign of Henry II. (A. D. 1154–1189), with a few
strictly local exceptions, England possessed but one single custom-
ary law, - the common law, - one and the same for the whole land.”
“ Unity of national law was, we may consider, established in 1200,
thirty years after the definite institution of an itinerant High Court.”
The well-known abuses by the crown of this excess of kingly power
led to the confederation of the barons in the time of John (A. D. 1215).
Monsieur Boutmy’s observations on the character, causes, and
effects of this great transaction are extremely interesting. We
have place for only a few sentences : “The surprising political intel-
ligence of the rebels of 1215 was in no sense due to a natural gift or
inborn fitness; it was the slowly ripened fruit of necessity. Consider
the case of these great barons with their estates dispersed throughout
the country and confronted with a tyrannical monarch. . . . Distance
gave them no sense of Security; a few days’ march and the King's
army was at their castle gates. Nothing of the kind existed in other
countries. The object which the English feudatories aimed at, and
the means which they employed, took their character from these excep-
tional circumstances. . . . If they wished to contend at an advantage
with an adversary so superior in force to themselves, the barons had
but one course open to them. It was necessary not merely to unite,
to make common cause, and to organize their own body, but to rally
to them from one end of the kingdom to the other all who were
exposed to the tyranny of the crown ; and no rallying cry would be
listened to unless it proclaimed the grievances of all alike. The re-
sistance had to be political if the victory, when gained, was not to
prove barren ; it had to be of necessity general, national, nay, even
Lecture
XI.
20
3O6 LA WS AAWD 70A:/SPA’UDEAVCE.
Lecture
XI.
Essential
excel-
lences of
the Eng-
lish law.
The English law, to be sure, was idiocratic, and
on many points archaic enough ; though bulky,
it was without scientific form or arrangement;
it was often obscure and uncertain ; it was need-
lessly refined, slow, and expensive ; it was in its
criminal branch mercilessly severe; and yet what
with the aid of acts of Parliament, which occasion-
ally remedied glaring evils, with the establishment
of the system of equity as administered in the Court
of Chancery, with the growth and recognition of the
law merchant, and with the gradual breaking down
of the excessive technicalities of the old law, the
English law with all of its anomalies and defects,
was, taken all in all, in substance, in matter, in
essential excellences, – chief among which were the
principles of Magna Charta, which penetrated its
every part, — a better system of laws than existed
in any other part of the world. Bad enough in
the respects above mentioned and many others it
was ; but an impartial review of it will, I think,
show that it as little deserved on the one hand the
democratic, if the victory was to be gained at all. . . . This is what
imparts grandeur and originality to the mighty drama, of which the
first act ended with the Great Charter, and which reached its climax
with the constitution of Parliament about 1340. It was then that a
nation came into being, or rather took visible form, a nation ranged
in compact order round its natural chiefs. This new power found in
Parliament at once a means of action and a permanent Organ, in which
the resistance of 1215 took the pacific, regular, and continuous form
of political opposition and control. It is thus that we must explain
the peculiar characteristics which have made it from the beginning
an institution original and unique in Europe. The absence of sep-
arate provincial traditions, privileges, and interests rendered the
existence of anything more than one central assembly impossible.”
Boutmy, “English Constitution,” Eaden's translation, 1891, chap. i.,
pp. 27–29.
OUR LA W. ZTS COMSERVATIVE FORCES. 307
constant and unmeasured denunciations of Ben-
tham, as on the other the unstinted and perpetual
eulogies of Blackstone." To borrow and adapt a
thought from Mr. Mill, it is given to a progressive
like Bentham to discern more particularly those
truths with which existing doctrines and institu-
tions are at variance, while to a conservative like
Blackstone it is given to discern especially the
truths which lay in them.”
To Blackstone the field of English law seemed a
paradise filled with everything to delight the eye
and the mind; to Bentham it was a howling wil-
derness, full of all sorts of unclean birds and raven-
ing beasts. In sober fact it was neither, but a
region where good land was plentiful in the midst
of fen and marsh, rock and mountain, and where
thought, care, and labor were required to destroy
the wild beasts, to subdue nature, to extirpate
weeds and brambles, and to make the soil bear
blossom, fruit, and grain.
One lesson which it is a leading purpose of this
lecture to inculcate is the excellence of the Com-
mentaries of Blackstone, and their value especially
to the students, the lawyers, and the jurists of this
country. He did a great work; he did it well.
Its merits are the best known to the careful student
who appreciates the confused and dispersed condi-
tion of statutes and decisions which it reduced to
order and constructed into one of the most beau-
tiful, noble, and symmetrical outlines of a complex
system ever produced by the mind of man.
1 See post Lecture XIII.
* Essay on Bentham, above mentioned.
Lecture
YI.
Bentham's
denuncia-
tions and
Black-
stone’s
eulogies
alike un-
merited.
Value of
Black-
stone’s
Commen-
taries.
3O8 - ZA WS AAWD 3'UAE/SPA’UDAEAVCE.
Lecture
XI.
The un-
organized
condition
of the Eng-
lish law.
Black-
stone's in-
debtedness
to Lord
Hale.
The English law, insular in its origin and spirit,
growing up irregularly during many centuries, rest-
ing partly in legislation, partly in treatises (such as
Britton, Littleton, Coke, and a few others, which
were regarded as authoritative), but mainly in the
decisions of the courts scattered through hundreds
of volumes, – was remarkable for its lack of for-
mulated rules or scientific arrangement. It had
little of the method and system which character-
ized the civil law, and it was almost wanting in
literary or artistic form and expression. Its study
involved laborious researches into its sources or
evidences. This want of analysis and arrangement
was seriously felt by Sir Matthew Hale, who is, I
think, justly to be ranked among the very greatest
of English lawyers. His “Analysis of the Civil
Part of the Law,” wherein he attempted the “re-
“duction of the several titles of the law into dis-
“tributions and heads according to an analytical
“method” (which in its main scope was suggested
and in part borrowed from the Institutes of Justi-
nian), is the foundation of Blackstone's arrange-
ment. That arrangement, while by no means the
best the subject admits of, does not deserve the
criticism with which Austin and others have so
freely assailed it." It constitutes a fair working plan,
1 Professor Hammond’s learned exposition, in his introduction to
Sandars’s Justinian, of the classical distribution of the law and of
Blackstone’s classification and arrangement based thereon attracted
the attention and called forth the commendation of Sir Henry Maine,
who declared it to be “the best defence he had seen.” “Early Law
and Custom,” chap. xi., p. 365 (American reprint). Hammond’s San-
dars's Justinian, Introduction, p. xlii, et seq. See also the notes of
the same learned scholar to his edition of Blackstone, vol. i., p. 316,
note 1; Ib., p. 330, note 2. Austin has words of praise for “our admi-
OUR Z.A. W. Z.Z.S COMSERVA TV WE APO/ºCAE.S. 3O9
*—
as the work of the illustrious commentator based
thereon has amply demonstrated. By Blackstone's
time the English law was sufficiently matured (as
his Commentaries show) to admit of being put into
methodical form; and the need for it arising from
the mass of statutes and adjudged cases, and the
insufficiency of existing text-books and treatises,
pressed with increasing urgency. This great work
could not have fallen into the hands of any one
rable Hale,” some of which he even bestows upon the “Analysis.”
But it is difficult to account for Austin’s dislike of Blackstone,
and his contempt of Blackstone's work. He says: “The method
observed by Blackstone in his far too celebrated Commentaries is
a slavish and blundering copy of the very imperfect method which
Hale delineates roughly in his short and unfinished “Analysis.” .
Neither in the general conception nor in the detail of Blackstone's
book is there a single particle of original and discriminating thought.”
And much more to the same effect, Austin’s “Jurisprudence,” 5th ed.
(Campbell's), pp. 68, 69.
Much has been written upon legal classification by Austin, Holland,
Markby, Maine, Hammond, and others. The report of the committee
of the American Bar Association on the classification of the law pre-
pared by Professor Emlin McClain, of the Iowa University, presents
an instructive view of the purposes of legal classification and of the
practical difficulties of the subject, and the classification proposed by
the report is an interesting attempt to solve them. Reports of the
American Bar Association, vol. xiv., p. 379, 1891. The bibliography
of the subject is given in the appendix to the report (pp. 407, 408).
I fully agree with the following views expressed in the report (pp. 380,
381) : “No system of classification of any practical utility can be de-
vised which shall be suitable to more than one legal system. Dis-
tinctions which may be important in one may be of no consequence
in another. Thus, as between the civil and common law, there are
some points of analogy, but at the same time the differences are so
great that no common classification descending to any degree of par-
ticularity is attainable. It is true that some notions of classification
developed by the Civilians have been adopted as applicable to our
system, but it will be found impracticable to carry out the civil law
classification to a point where it will harmonize with the divisions of
the subjects recognized by writers on the common law.” See on this
point the preface to the present volume.
Lecture
YI.
Urgent
need by
Black-
stone's
time for
an institu-
tional
work on
English
law.
3 IO M.A WS AAWD # UAE/SPRUDEAVCAE.
Lecture
XI.
Black-
Stone a.
COInSUITTOl-
mate liter-
ary artist.
better able than Blackstone to perform it. He
was by no means unfamiliar with the practical
work of the profession. He gave many studious
years to the task of preparation. He was, more-
over, a consummate literary artist. In this respect
he has never been excelled, - and I must say
that in my judgment he has never, among legal
elementary authors, been quite equalled. Even
Bentham was forced to admit that Blackstone was
the “first of all institutional writers who taught
“jurisprudence to speak the language of the scholar
“and the gentleman.” His generalizations are clear
and concise; his historical researches minute and
in general remarkably accurate,” and his book is
not, like so many modern works, a mere digest
and arrangement of cases, but a systematic treatise.
He had, therefore, all the qualifications — learning,
general and legal, professional experience, literary
gifts, and an exquisite artistic sense — necessary
for the work on which he entered when he took his
seat in 1758 as Vinerian Professor of Law at Oxford.
! “In the reports and treatises of the last century . . . there was
a serious endeavor for lucidity and form as against gratuitous techni-
cality and the literary clumsiness of the only existing legal classics.
Blackstone’s Commentaries were the outcome of this endeavor, and,
all things considered, an admirable one. Dr. Brunner (in the intro-
duction to Holtzendorff's ‘Encyklopädie der Rechtswissenschaft”) has
borne splendid witness to Blackstone's merit in his account of the
sources of English law.” “Oxford Lectures and Other Discourses by
Sir Frederick Pollock” (London, 1890), p. 29. So deep and careful a
student of the English law as Mr. Digby, in his preface to the History
of the Law of Real Property, says that “Blackstone still remains un-
rivalled as an expositor of the law of his day. . . . It will be seen,”
he adds, “that I throughout refer to Blackstone as the great authority
on the earlier law,” without going back to the original sources. This
is testimony from the highest source as to Blackstone's accuracy.
OUAE Z.A. W. ZTS COAVSEA VA 77 VE AEORCES. 3 II
In judging of his Commentaries, we must not fall
into the mistake that some of Blackstone's critics
make, and look at them from a wrong point of view.
He was a teacher whose purpose was to set forth the
English law as it then existed, and not a reformer
whose purpose was to point out its defects with a
view to its improvement. The two functions are,
of course, not incompatible. But it is obviously not
necessary in an institutional work whose design is to
state the law as it is, that the author should expose
and dwell upon the defects and imperfections of the
system which he is expounding.
There is no faculty more rare, none which in-
volves the exercise of higher and more admirable
Qualities, than the critical faculty in general. This
is eminently true of the critical legal faculty, and it
detracts but little from the merits of Blackstone's
work, keeping in mind its purpose, that he did not
possess, or at all events did not more freely exercise
that faculty. While this is true, it is also true that
the expounder of a system of law ought not to
praise where praise is not deserved; and it must be
admitted that Blackstone was strongly inclined to
view the laws of England with the eye of an
idolater, and like the idolater he rarely saw any-
thing but perfection and beauty in the object of
his worship. Nevertheless, let me suggest and
enforce the thought that a capital need of our
law to-day is for some gifted expositor who shall
perform upon it the same operation performed
by Blackstone more than a hundred years ago;
that is, an institutional work systematically ar-
ranging and expounding its great principles as
Lecture
XI.
The proper
point of
view from
which to
judge of
the Com-
mentaries.
3 I2 M.A WS AAWD jº/R/SPA’UDEAVCE.
Lecture
IXI.
The need
of a mod-
ern Black-
Stone.
they have been modified, expanded, and developed
since Blackstone's day, so as to make it as faith-
ful and complete a mirror of the law as it now
exists as Blackstone's work was of the law as
it existed when his Commentaries were produced.
And such also is the weighty opinion of Sir
Frederick Pollock. “A good book of Institutes
“of English Law would indeed be a boon for
“lawyers and students to welcome. As it is,
“our young men hear systematic lectures on
“jurisprudence and legal method in general, and
“have meanwhile to pick up their first notions of
“the law of their own country from mauled and
“tinkered editions or imitations of Blackstone put
“together in defiance of all rational arrangement.
“Blackstone's work was an excellent one in his
“ time and according to his lights; we might
“honour him better at this day than by a blunder-
“ing lip-service, which, as a rule, effectually ex-
“cludes the knowledge of what Blackstone really
“wrote. The modern editions utterly spoil Black-
“stone as literature, without producing a good ac-
“count of the modern law. One consequence of
“this is that the historical value of Blackstone in
“his genuine form is apt to be sadly underrated.’”
This is sound. Hammond’s Blackstone, before
mentioned, is edited on the right principle. I take
my leave of Blackstone and his work with the
observation that if in the pressure of the cares and
toils which are the common lot of the successful
lawyer you will make it a point every year once
1 Pollock, “Essays on Jurisprudence and Ethics,” London, 1882,
pp. 6, 7.
OUR LA W. ZTS COMSERVA TV VE FORCES. 313
tºº-º-º-º:
to read the “Commentaries on the Laws of Eng-
“land, by Sir William Blackstone, Kt., one of the
“Justices of His Majesty's Court of Common
“Pleas,” you will thank me as often as you shall
complete the reading for the advice I have thus
ventured to give."
I now turn your attention to Blackstone's critic
and assailant, Jeremy Bentham, to the end that we
may form a judgment of the value and influence of
his labors. This is the more necessary because it
even yet rests uncertain in some minds whether
Bentham sowed the field of the law with wheat or
thistles. This subject leads, as we shall see in our
next lecture, to the consideration of questions of
vital and practical interest to our law.
Bentham was the pronounced enemy of what we
call case-law, -of what he styled, somewhat con-
* If it were not ungracious toward an author who has done so
much for his profession as Blackstone, we might indeed wish that
Blackstone had possessed more fully the quality that Stuart Mill
ascribes to Coleridge; namely, “the spirit of philosophy within the
bounds of traditional opinions. Coleridge has been, almost as truly
as Bentham, ‘the great questioner of things established; ' for a ques-
tioner needs not necessarily be an enemy. . . . With Coleridge the
very fact that any doctrine had been believed by thoughtful men and
received by whole nations or generations of mankind, was part of
the problem to be solved; was one of the phenomena to be accounted
for. . . . It was to be expected that Bentham should continually miss
the truth which is in the traditional opinions, and Coleridge that
which is out of them and at variance with them.” “Dissertations
and Discussions by John Stuart Mill: Essay on Coleridge,” vol. ii.,
pp. 6, 7, American reprint, Boston, 1868. The contemporary and
earlier opinions of Blackstone's Commentaries, including those of
Fox, Sir William Jones, Gibbon, Mansfield, Story, Mackintosh, and
others, are collected in the Preface of Paterson’s “Liberty of the
Subject” (MacMillan & Company), 1877.
Tuecture
XI.
Bentham
and his
labors.
Enemy of
case-law.
3 I4. LA WS AAWD # URISPRUDENCE.
Lecture
XI
Vast size
of case-law
threatens
revolu-
tionary
changes in
English
jurispru-
dence.
–
temptuously, “judge-made law.” “The frightful
“accumulation of case-law,” says Sir Henry Maine,
“conveys to English jurisprudence a menace of
“revolution far more serious than any popular
“murmurs, and which, if it does nothing else, is
“giving to mere tenacity of memory a disgraceful
“advantage over all the finer qualities of the legal
“intellect.” Evidently the doctrine of precedent
and its direct fruits — namely, the colossal and ever-
growing mass of reported cases — are to-day, even
more than in Bentham's time, subjects of vast and
living moment, whose depths none of us has fully
sounded.
The story of Bentham's life and labors shows, to
use Carlyle's phrase, that “no great man lives in
vain.” It also lends color to Carlyle's favorite dic-
tum, that “the history of the world is but the
biography of great men.” It shows, moreover, that
if a man has “that last infirmity of noble mind,” is
willing “to scorn delights and live laborious days.”
that he may gain the fair guerdon of a lasting fame,
he must become connected with, and his labors must
become incorporate in, institutions which have the
quality of living, although the individual members
successively perish. “Wise or fortunate,” says
Gibbon in his famous chapter on Roman Jurispru-
dence, speaking of Justinian, “is the prince who
“connects his own reputation with the honor and
“interests of a perpetual body of men.” Bentham
did this. Although he was the inveterate assailant
1 Sir Henry Maine, “Village Communities,” paper on Roman Law
and Legal Education (American Ed.), p. 347. See ante Lecture VI.,
p. 176 et seq.; Lecture VIII., p. 231; Lecture IX, passim ; Lecture X.
OUR LA W. ZTS CONSERVA TVVE FORCES. 3 I 5
and critic of the lawyers as well as of the English
system of law in his day; often, indeed usually,
carrying his assaults and criticisms beyond the line
of fairness, – nevertheless his lifelong and disinter-
ested labors were inspired by a desire and ambition,
free of the least taint or alloy, to promote (and time
has demonstrated that they did promote and are
promoting) the true interests of the profession,
thus connecting himself in name and memory with
it, and giving him the only reward he either sought
or would prize, namely, that which springs from his
labors in behalf of its true and permanent welfare.
Bentham's place in our law, and the nature and
influence of his labors for its improvement, will be
the subject of the next lecture.
Lecture
XI.
Bentham's
disin-
terested
labors.
Lecture
XII.
Bentham’s
place in
our legal
history.
LECTURE XII.
OUR LAw: BLACKSTONE AND BENTHAM As Ty PES AND
EXPONENTS OF ITS CoNSERVATIVE AND RADICAL FORCEs,
To WHOSE FREE PLAY IT owes ITS PROGREss, As WELL
AS ITS DISTINCTIVE FORM AND CHARACTER. — BENTHAM’s
PLACE IN OUR LEGAL HISTORY. — CHARACTER AND IN-
FLUENCE OF HIS WRITINGS AND LABORs UPON ENGLISH
LAW AND ITS REFORMATION (concLUDED).
“DENTHAM'S theories upon legal subjects have
“had a degree of practical influence upon
“the legislation of his own and various other coun-
“tries comparable only to those of Adam Smith and
his successors upon commerce.” Such is the opinion
of Sir James Stephen concerning the influence and
effect of Bentham's legal writings and labors." As
late as 1874 Sir Henry Maine went so far as to de-
clare : “I do not know a single law reform effected
“since Bentham's day which cannot be traced to
“his influence; but a still more startling proof of
“the clearing of the brain produced by this system
“[the system of Hobbes, Bentham, and Austin],
“even in an earlier stage, may be found in Hobbes.
“In his “Dialogue of the Common Laws,” he argues
“for a fusion of law and equity, a registration of
* Sir James FitzJames Stephen, “History of Criminal Law of Eng-
land,” London, 1883, Vol. ii., chap. xxi., p. 216.
O OVA' LA W. YTS PROGA’A.S.S/VE ATO AECF.S. 3 IZ
“ titles to land, and a systematic penal code, —
“ three measures which we are on the eve of seeing
“carried out at this moment.”* Opposite views are
entertained by others. It is worth while, therefore,
to essay to define Bentham's place in the history of
our law, and to attempt an estimate of the character
and influence of his writings; and such is the pur-
pose of this hour. Bentham's fertile and active
mind embraced in the scope of its operations many
other subjects than those of law and legislation,
such as ethics, political economy, political reform,
and even practical politics. Nevertheless, his prin-
cipal attention was given to the English law and to
the mode by which its improvement could best be
1 Early History of Institutions, Lecture XIII. Others also, well
qualified to judge, have assigned to Bentham a place in the foremost
rank of men of extraordinary intellectual endowments. I subjoin an
extract giving Macaulay's judgment. He is by no means a partial
witness: he was a Whig of the Whigs; Bentham, a Radical of the
Radicals. If there was anything that a Whig hated more than a
Tory, it was a Radical. Macaulay had in Bentham’s lifetime attacked
with fierceness and rancor the Benthamic notions of politics. Yet
within a few months after the death of Bentham, in reviewing (July,
1832) Dumont’s “Mirabeau,” Macaulay thus expresses his opinion of
Bentham's character and labors: “Of Mr. Bentham,” he says, “we
would at all times speak with the reverence which is due to a great
original thinker and to a sincere and ardent friend of the human race.
In some of the highest departments in which the human intellect can
exert itself he has not left his equal or his second behind him. From
his contemporaries he has had, according to the usual lot, more or
less than justice. He has had blind flatterers and blind detractors, –
flatterers who could see nothing but perfection in his style; detractors
who could see nothing but nonsense in his matter. He will now have
his judges. Posterity will pronounce its calm and impartial decision;
and that decision will, we firmly believe, place in the same rank with
Galileo and with Locke the man who found jurisprudence a gibber-
ish and left it a science.” (A general truth, rather too strongly
expressed.) See below for opinions of Brougham and others con-
cerning Bentham’s writings and labors.
Lecture
XII.
Bentham's
place in
our legal
history.
318 JA WS AAWD AC/RISPRUDENCE.
effected; and this lecture will be restricted to his
writings and labors concerning English law and
the method of reforming or amending it.
It is essential to a correct view of the character
and value of Bentham's labors to bear in mind the
period of time covered thereby, and also the con-
dition of the English law, especially as it existed
when his efforts for its improvement were begun."
Bentham was born in London in 1748. In 1763,
at the early age of sixteen, he was graduated with
honors at Oxford. He was in due time called to
the English bar. His first work, the Fragment on
Government, being a criticism on a portion of Black-
stone's Commentaries, was published (anonymously)
in 1776; his attack on Usury Laws in 1787; his
Panopticon in 1791; his protest against Law Taxes
in 1796; his great work (Dumont's Edition, in Paris)
on Legislation, Civil and Criminal, in 1802; on
Codification in 1817; on Rewards and Punishments
(Dumont's Edition) in 1818; on Judicial Evidence,
in Paris, in 1823, English translation thereof in 1825,
and from original English manuscripts, edited by
John Stuart Mill, in 1827. I omit in this enumera-
tion, as not essential to my present purpose, some
minor works concerning law or legislation, and
many important writings relating to education,
prison discipline, political reforms, morals, and
kindred subjects.
Bentham was, broadly speaking, contemporary
with what may be styled the legal reign of Eldon.
The common law in its substance and procedure
was by everybody in England regarded with a
Lecture
XII.
Bentham's
principal
works re-
lating to
law and
legislation.
Condition
of the Eng-
lish law in
Bentham's
time.
1 See ante Lecture XI.
OCVAQ Z.A. W. ZZTS AA’OGA2A.S.SY VE FO/PCAE.S. 3 I9
veneration superstitious to the verge of idolatry.
It was declared, and generally believed to be,
“the perfection of reason.” Lord Eldon and the
Court of Chancery, with its suitorcide delays,
“pressed heavily on mankind.” Imprisonment for
debt, and distress for rent with all its harsh and
oppressive incidents, were in unabated force. The
criminal law, defective and excessively technical,
abounding with capricious and cruel punishments,
and which denounced the penalty of death on about
two hundred offences, remained in a state which no
one any longer hesitates to pronounce outrageous
and shocking." It was on this system that Bentham,
when he was under thirty years of age, solitary and
alone, commenced the attack which he incessantly
continued until his death in 1832, at the age of
eighty-four. He was a multiform man; but it is
as a law reformer that he stands the most con-
spicuous and pre-eminent. He had all the personal
qualities of a reformer, — deep-hearted sincerity,
unbounded faith in his own powers and self-
sufficiency, unwearied zeal, and dauntless moral
courage.”
One who should not bear in mind the peculiar
aversion of the English people to innovation, the
inveterate conservatism of the bar, and the awe
and reverence with which they regarded the
existing system, might suppose that the work of
amendment would readily follow when the defect,
were pointed out. But Bentham's voice for nearly
fifty years, so far as England was concerned, was
1 See post Lecture XIII.
* See ante Lecture VI., p. 180.
Lecture
XII.
Bentham's
personal
qualities
3S 8, I’6-
former.
32O M.A WS AAWD jº/R/SPA’UDEAVCE.
Lºe like that of one crying in the wilderness. Parlia-
– ment did not heed it; the bar did not heed it;
nobody heeded it. For quite twenty-five years he
seems to have had no following beyond Mill, senior,
and a few other personal friends. Happily for him
he had a competence and was able to give his days
and nights to the work to which he had resolved to
consecrate his life. Happily, perhaps, also, he had
Bentham's no domestic cares or distractions, being without wife
devotion to g e * gº
his work, or children. Bowring preserves an affecting letter
from which it appears that at one time in his earlier
life a lady had engaged his affections and rejected
his proposals. In a letter written long, long years
afterwards to the lady herself, the Recluse says: “I
“am alive, more than two months advanced in my
“eightieth year, – more lively than when you pre-
“sented me in ceremony with the flower in Green
“Lane. Since that day not a single one has passed
“in which you have not engrossed more of my
“ thoughts than I could have wished.” He con-
cludes: “I have a ring with some snow-white
“hair in it and my profile, which everybody
“says is like ; at my death you will have such
“another; ” and then playfully, perhaps patheti-
cally, adds, “Should you come to want, it will be
worth a good sovereign to you.” f
There is in this a genuine touch of nature!
Alike in peasant, prince, poet, and philosopher, the
human heart, once truly touched by love, becomes
thence like the ocean, – restless and insurgent
A legal evermore. Amid all his engrossing pursuits, in
* which he wholly shut himself out from society,
and indeed from every person but a few friends
OO/º AA W. ZTS PROGRAESS/VE AWOA’CZE.S. 32 I
whom he would occasionally meet when the toil of
the day was over, the vision and the memory of the
giver of the flower in Green Lane, pushing aside
for the while Codes, Panopticons, Chrestomathias,
Pannomions, and all such, were, he confesses, pre-
sent to him every day. But although “along the
“ plains, where Passionate Discord rears eternal
“Babel, the holy stream of wedded happiness
“glides on,” it glided not on for him, but passed
him by irreversibly. One so thoroughly absorbed
in work which he regarded as so pressing and so
important to the world, would have made, it is to
be feared, a poor husband, just in proportion as
he was a devoted philosopher. Doubtless she
judged wisely. It was well for her, and perhaps
well for him, that he never saluted the woman
who gave him the flower in Green Lane with
the tender and sacred name of wife.
In forming a judgment of Bentham's work and of
the way he did it and of the efficiency of that way,
it is almost as essential to see how he regarded the
English law as it is to inquire precisely how far his
opinions were correct. Bentham's voluminous writ-
ings leave no doubt as to his views concerning the
English law. There was no health in it. Admit-
ting, as he did, that the legislative enactments and
the reports of adjudged cases contained more valu-
able materials for the construction of a system of
laws than any other nation in the world possessed,"
he yet maintained that the existing law, so far from
being the perfection of human reason or the product
1 See ante Lecture VI., p. 174; Lecture X., p. 270.
21 tº
Lecture
XII.
Bentham's
opinion of
the Eng-
lish law.
322 ZA WS AAWD jº/R/SPA’UDEMCF.
Lecture
YII.
Bentham’s
opinion
contrasted
with
Black-
Stone's.
of matured experience, was (to use his own language)
but “a fathomless and boundless chaos, made up of
“fiction, tautology, technicality, and inconsistency,
“and the administrative part of it a system of ex-
“quisitively contrived chicanery, which maximizes
“delay and denial of justice.” Thus viewing it, he
saw no remedy but its overthrow and destruction as
a system, and rebuilding it anew, using old mate-
rials as far as they were useful and no farther. He
regarded the whole system, as I have often thought,
with much the same feeling that the French people
contemporaneously looked upon the Bastille, as a
monument of feudalism, oppression, and injustice,
fit only to be destroyed. Blackstone, on the other
hand, viewing the system with the optimistic eyes
of the age in which he wrote, compared it, in his
inimitable style, to “an old Gothic castle, erected
“in the days of chivalry, but fitted up for a modern
“inhabitant. The moated ramparts, the embattled
“towers, and the trophied halls are magnificent and
“venerable, but useless, and therefore neglected.
“The inferior apartments, now accommodated to
“ daily use, are cheerful and commodious, though
“their approaches may be winding and difficult.” "
What could be more charming, what more desir-
able ! All the interest and grandeur that attach
to a structure at once imposing, venerable, and his-
toric, combined with the convenience that results
from its being already fitted to the amplest mod-
ern uses, – the only defect being, if, indeed, it is
such, that the approaches may be (he does not
1 3 Black. Com., 268; 2 Dillon, “Municipal Corporations” (4th
ed.), § 934, a, and note.
OUR LA W. ZTS PAEOGRAESSIVE FORCES. 323
feel quite sure that they are) somewhat winding
and difficult.
Bentham's claims upon our regard will not be
duly valued unless we keep ever in mind the diffi-
culties which he was called upon to face. He stood
alone. For more than twenty-five years he stood
absolutely alone. But like Milton (whose London
house it was Bentham's pride to own, although it
was one of his peculiarities that he utterly dises-
teemed poetry), — like Milton in his blindness,
through all neglect and discouragements, Bentham
“bated not a jot of heart or hope, but still bore
up and steered right onward.”
I have not the time, if I had the power, ade-
Quately to present a picture of the obstacles Ben-
tham met with. And yet I must not pass these
entirely over, as they are the background of any
portraiture of the man and his work. There was
the traditional, constitutional, ingrained aversion
of the English people to innovation, combined
with their idolatrous regard for the existing order of
things." It is worth while to illustrate this. Burke
was undoubtedly the most enlightened statesman of
his age, – one of the profoundest political thinkers
and philosophers of any age. In one of his great-
est speeches” he thus expressed in his felicitous
way the traditional and habitual regard of the
English mind for the established Constitution and
for ancient acts of Parliament: —
“I do not dare to rub off a particle of the ven-
“erable rust that rather adorns and preserves than
1 See ante Lecture XI.
* Conciliation with America, 1775.
Lecture
XII.
Obstacles
in Ben-
tham’s
way.
Aversion
of the
English
people to
1I] Il OVa.-
tion,
324 AA WS AAWD # UR/SPA’UDENCE.
Lecture
XII.
Illustra-
tion from
Burke.
Illustra-
tion from
Lord
Thurlow,
“destroys the metal. It would be a profanation
“to touch with a tool the stones. I would not vio-
“late with modern polish the ingenuous and noble
“roughness of these truly constitutional materials.
“Tampering is the odious vice of restless and un-
“stable minds. I put my foot in the tracks of
“our forefathers, where I can neither wander nor
“stumble. What the law has said, I say. In all
“things else I am silent. I have no organ but
“for her words. If this be not ingenious, I am
“sure it is safe.”
Again, in 1791, speaking of the English Con-
stitution, Burke says: —
“We ought to understand this admired Consti-
“tution (of England) according to our measure,
“combining admiration with knowledge if we
“can, and to venerate even where we are not
“able presently to comprehend.”" w
Than this nothing can be more opposed to Ben-
tham's mode of thought, since he would take nothing
for granted, and would not, he said, admit murder
or arson or any other act to be wrong unless it
could be shown by reasoning to be so. I find in
Henry Crabb Robinson's Diary * another contem-
porary illustration of the difficulty of attacking
things established, so pertinent that it will excuse
its irreverence. He relates that in 1788 a deputa-
tion of distinguished men waited on Lord Chancellor
Thurlow to secure his support in their attempt to
obtain the repeal of the Corporation and Test Act.
1 Appeal from the New to the Old Whigs. Burke's Works, vol.
iv., p. 213 (Little, Brown, & Co.'s Ed.).
* Vol. i., chap. xv., American Ed., p. 243.
OUAE Z.A. W. : ZZTS, A/POGAEA.S.S/VE AWOA’CAE.S. 325
The Chancellor received them very civilly, and
then said: “Gentlemen, I’m against you, by G–.
“I am for the Established Church, d- me ! Not
“that I have any more regard for the Estab-
“lished Church than for any other church, but
“because it is established. And if you can get
“your d-d religion established, I’ll be for that
“too !” This national peculiarity, as well as the
natural conservatism of the bar, had been greatly
intensified by the French Revolution. As late as
1808 Sir Samuel Romilly, speaking of his own
parliamentary labors and discouraging experience,
says: “If any person be desirous of having an
“adequate idea of the mischievous effects which
“ have been produced in this country by the French
“Revolution and all its attendant horrors, he should
“attempt some legislative reform on humane and
“liberal principles. He will then find, not only
“what a stupid dread of innovation, but what a
“savage spirit it has infused into the minds of
“many of his countrymen’’’
Eldon was for a quarter of a century Lord Chan-
cellor. It is certain that he never originated a re-
form act; and if he ever favored an act which could
be fairly said to have been intended to amend the
law, I do not recall it. It was difficult and almost
impossible to pass any act which Eldon disapproved.
He considered the existing system as perfect; or if
not, that if the least innovation were favored or
allowed no one could tell where it would stop, and
* “Life of Sir Samuel Romilly,” edited by his sons, vol. i., Diary,
June, 1808. See also his beautifully written Letters to C., letter iii.,
September, 1807, in same volume, 3d ed., London, 1842, p. 537.
Lecture
XII.
Effect of
the French
Revolu-
tion on law
reform in
England.
Eldon’s
influence
on law
reform.
326 AA WS AAWD jº/A/SPA’ODAEAVCAE.
Lecture
XII.
Eldon’s
character
and
merits.
therefore the true course was to destroy all innova-
tion in the egg. He was “accused by Bentham of
“nipping in the bud the spread of improvement over
“the habitable globe.”" And yet I love old Eldon.
He could not help his impenetrable and incorrigible
conservatism. He was sincere and immovable in
his sincerity. If he was true to his party and
“never ratted,” he was also true to his heart and
conscience and sense of duty. No breath of suspi-
cion ever rested upon him or the absolute purity of
his court. What a great advance had been made
from the time of Bacon to the time of Eldon. Eldon
had, moreover, the qualities of a great judge. He
loved right. He hated wrong. He appreciated
arguments of counsel and freely heard them. He
was deeply learned in his profession. His judgment
was sure-footed. His love of justice was so great,
his sense of the fearful responsibility attaching to
the exercise of judicial power so keen, that he
habitually hesitated and doubted; but his doubts
and hesitations all had their origin in the dread
of doing injustice, and a noble anxiety to know
and to do the right. If he vigorously resisted
amendment or change in our law, he as vigorously
* Townsend, “Lives of Twelve Eminent Judges,” vol. ii., chap. x.,
p. 455, London, 1846. Bowring says that Bentham hated Eldon as
much as it was possible to his benevolent nature to hate, – considered
him the mightiest and most mischievous of all the opponents of law
reform; and he calls him, in another place, the Lord of Doubts.
Defective as the laws were, they were doubtless in a vastly better
condition than they would have been if Bentham could have sub-
jected them to the full operation of his radical, and to a large extent
impracticable views, which, however, were never favored in their full
scope and details by such conservative reformers as Brougham,
Romilly, and Bickersteth.
OUR LA W: ITS PROGRESS/VE AEORCES. 327
s=–
protected and conserved existing excellences and
merits. Again I say I love old Eldon With all
his ultra-conservatism and dubitations, – his only
defects, – I love his sturdy, genuine, honest nature.
I have said this that you might not conceive an
undue bias against Eldon from what Sydney Smith,
Bentham, and other Whigs have said of him and
his court.
The libel laws even were in Bentham's way. Not
to mention other instances, as late as 1811 there was
difficulty in obtaining a publisher for the “Introduc-
tion to the Rationale of Evidence.” More than one
bookseller declined, giving as a reason that the book
was libellous. The “Elements of the Art of Pack-
ing,” which lay six years printed but unpublished,
had alarmed the “trade,” and it never was fully
published until after Bentham's death. But Ben-
tham kept right on. At length he began to attract
the attention of a few gifted minds. One of the
earliest of these was Sir Samuel Romilly, who of
all English lawyers is, as I think, the one that
nearest approaches a perfect model."
1 Romilly was the means of rendering Bentham what turned out
to be a most signal service. About 1788, when Bentham was forty
years of age, Romilly sent to Genevese Dumont some of Bentham's
writings. They greatly impressed this gifted man with their origi-
mality and value. Dumont gave a large portion of his life to the
redaction and translating into French some of the most important
of Bentham's works. But this required years. On April 5, 1791,
Romilly writes to Dumont : “Bentham leads the same kind of life as
usual at Hendon, — seeing nobody, reading nothing, and writing books
which nobody reads.” In 1802 Dumont's French edition of Ben-
tham's treatise on “Legislation Civil and Criminal” appeared, and
was translated into Spanish, Russian, and Italian; in 1811 “Rewards
and Punishments,” and in 1823 “Judicial Evidence,” thus treated
and translated by Dumont, were published in Paris. This gave
Lecture
XII.
Libel laws
in Ben-
than's
Way.
328. A WS AAWD 3'OR/SPA’UDENCE.
Lecture
XII.
Bentham’s
friends
and co-
laborers.
Romilly excepted, no persons in England of dis-
tinction or official influence acknowledged adhesion
to Bentham's doctrines until the early part of the
Bentham a European reputation, and quickened his tardy apprecia-
tion at home. In the history of letters there is nothing more remark-
able than the relation between Dumont and Bentham. Macaulay's
account of the services rendered by Dumont is as interesting as it
is, generally speaking, accurate. Of the character and value of
Dumont’s labors the great reviewer remarks : —
“They can be fully appreciated only by those who have studied
Mr. Bentham's works, both in their rude and in their finished state.
The difference, both for show and for use, is as great as the difference
between a lump of golden Ore and a rouleau of sovereigns fresh from
the mint. . . . Never was there a literary partnership so fortunate as
that of Mr. Bentham and M. Dumont. The raw material which Mr.
Bentham furnished was most precious ; but it was unmarketable.
He was, assuredly, at Once a great logician and a great rhetorician.
But the effect of his logic was injured by a vicious arrangement, and
the effect of his rhetoric by a vicious style. His mind was vigorous,
comprehensive, subtle, fertile of argument, fertile of illustrations.
But he spoke in an unknown tongue; and, that the congregation
might be edified, it was necessary that some brother having the gift
of interpretation should expound the invaluable jargon. His oracles
were of high import ; but they were traced on leaves and flung loose
to the wind. . . . M. Dumont was admirably qualified to supply what
was wanting in Mr. Bentham. In the qualities in which the French
writers surpass those of all other nations — neatness, clearness, preci-
sion, condensation — he surpassed all French writers. If M. Dumont
had never been born, Mr. Bentham would still have been a very great
man; but he would have been great to himself alone. The fertility
of his mind would have resembled the fertility of those vast American
wildernesses in which blossoms and decays a rich but unprofitable
vegetation, “wherewith the reaper filleth not his hand, neither he that
bindeth up the sheaves his bosom.' . . . Many persons have attempted
to interpret between this powerful mind and the public. But in our
opinion M. Dumont alone has succeeded. It is remarkable that in
foreign countries, where Mr. Bentham's works are known solely
through the medium of the French version, his merit is almost uni-
versally acknowledged. Indeed, what was said of Bacon’s philosophy
may be said of Bentham's. It was in little repute among us till judg-
ments came in its favor from beyond sea, and convinced us, to our
shame, that we had been abusing and laughing at one of the greatest
men of the age.” Essay on Mirabeau, July, 1832. -—”
O OVA2 WA W. YTS PA’OGAE ESS/VE ATO RCAE.S. 329
present century. Among the most eminent of these
was Mill, senior, the father of the still more eminent
John Stuart Mill. Mill, the father, and his family
were for years members of Bentham's household;
and Mill was one of the ablest exponents and ad-
vocates of Bentham's doctrines. Afterwards came
Bickersteth (subsequently Lord Langdale, Master
of the Rolls), who was the well-beloved disciple ;
for not long before the master's death he received
his benediction in these words: “Of all my friends,
“Bickersteth was the most cordial to law reform to
“its utmost extent.” Then came Brougham and
Sir James Mackintosh, and at a later period others.
Romilly, Langdale, Brougham, and Mackintosh each
held seats in Parliament; and their efforts for the re-
form of the laws, civil and criminal, and the slow,
tedious, and piecemeal process by which such re-
forms were accomplished, are known to history, and
need not be related here, even if time there were.
Lord Brougham thus excellently states the grounds
of Bentham's title to distinction and to our regard:
“The age of law reform and the age of Jeremy
“Bentham are one and the same. No one before
“him had ever seriously thought of exposing the
“defects in our English system of jurisprudence.
“He it was who first made the mighty step of try-
“ing the whole provisions of our jurisprudence by
“the test of expediency, fearlessly examining how
“far each part was connected with the rest, and
“with a yet more undaunted courage inquiring
“how far even its most consistent and symmetrical
“arrangements were framed according to the prin-
“ciples which should pervade a code of laws, their
Tecture
XII.
Lord
Brough-
am's es-
timate of
Bentham.
33O LA WS AAWD 707/SPRUDENCE.
Lecture
XII.
Lord
Brough-
am's es-
timate of
Bentham.
“adaptation to the circumstances of society, to the
“wants of men, and to the promotion of human
“happiness. Not only was he pre-eminently origi-
“nal among the lawyers and legal philosophers of
“his own country; he might be said to be the first
“legal philosopher who had appeared in the world.
“None of the great men before him had attempted
“to reduce the whole of jurisprudence under the
“dominion of fixed and general rules; none ever
“before Mr. Bentham took in the whole depart-
“ments of legislation; none before him can be said
“to have treated it as a science, and by so treating
“made it one. This is his pre-eminent distinction.
“To this praise he is justly entitled; and it is as
“proud a title to fame as any philosopher ever
“possessed.”"
1 Lord Brougham’s Speeches, Edinburgh, 1838, vol. ii., p. 288,
Black's Edition. Brougham and Bentham were well acquainted. In
a sense Brougham was one of Bentham's disciples. Both aspired to
be law reformers. Indeed, Brougham's most useful labors in Parlia-
ment were directed towards law reform. There were, however, radical
differences of opinion between Bentham and Brougham as to the best
method of effecting the desired improvement. These differences mat-
urally arose out of the difference in the situation and surroundings
of the two men. Bentham, though he was regularly bred to the law
and called to the bar, never pursued the profession. Bentham thus
summarized his own career as a practising lawyer: “I never pleaded in
public. On my being called to the bar, I found a cause or two at nurse
for me. My first thought was how to put them to death; and the
endeavors were not, I believe, altogether without success. Not long
after a case was brought to me for my opinion. I ransacked all the
codes. My opinion was right according to the codes; but it was
wrong according to a manuscript unseen by me and inaccessible to
me, – a manuscript containing the report of I know not what opin-
ion, said to have been delivered before I was born, and locked up, as
usual, for the purpose of being kept back or produced according
as occasion served.”
Bentham's solitary habits made him unfamiliar with practical life,
OUR Z.A. W. YTS PA’OGA’A.S.S/VE ATO RCAE.S. 33 I
*-----
Bowring once remarked to Talleyrand, “Of all
“modern writers, Bentham was the one from whom
and unable clearly to distinguish the attainable from the unattain-
able. Brougham, on the other hand, was a man of affairs, acquainted
with the world of men, with the world of lawyers, with the temper of
Parliament, and able to form a practical judgment concerning matters
of legislation. Though a man of liberal views, and with the courage
boldly to maintain them, he had in the matter of law reform not
a little of the usual conservatism of the lawyer and the prudence
and tact of the legislator. Bowring records that in anticipation of
Brougham's great speech on Law Reform, Bentham said: “Insincere
as Brougham is, it is always worth my while to bestow a day on him.
I shall try to subdue him and make something of him. I shall see
whether he has any curiosity to assist in tearing the established sys-
tem of procedure to rags and tatters.” This was Bentham’s motion of
the heroic, the destructive nature of the remedy required. Brougham's
heralded and famous speech on the Present State of the Law, and
which he entitled “Law Reform,” was delivered on the seventh day of
February, 1828; but the remedy proposed by him was to preserve the
garment and patch it up, instead of “tearing it to rags and tatters.”
Two days afterward Bentham thus records his disgust and disap-
pointment : “Mr. Brougham’s mountain is delivered, and behold! a
mouse. The wisdom of the reformer could not overcome the craft
of the lawyer. Mr. Brougham, after all, is not the man to set up a
simple, natural, and rational administration of justice against the
entanglements and technicalities of our English law proceedings.” I
do not know that Brougham ever heard of this contemptuous opinion,
although of course he knew that his proposed remedies utterly failed to
meet Bentham’s views of what the case demanded. In 1838 Brougham
edited an edition of his own speeches (namely, the one above cited,
printed by the Messrs. Black), himself preparing historical introduc-
tions to the various subjects, and among others to the speech on Law
Reform. In tracing the history of this movement, he gives many
pages to a consideration of Bentham's personal and intellectual quali-
ties, and to a critical estimate of his writings upon law, jurisprudence,
and legislation. Brougham excels in biographical sketches and de-
Scriptions of this kind, and this seems to me to be one of his best.
It will well reward full perusal, but I have space only for the few sen-
tences given in the text. Mr. John Stuart Mill in a note to his article
on Bentham (“Dissertations and Discussions,” Am. Ed., vol. i., p. 417),
commends Brougham's view of Bentham, and explains and extenuates
Bentham’s “unreasonable attacks on individuals, and in particular on
Lord Brougham on the subject of Law Reforms; they were no more
Lecture
XII.
332 ZAWS AND 3.0R/SPRUDEWCE.
Lecture
XII.
Talley-
rand’s ob-
Servation.
Walue and
influence
of Ben-
tham’s
labors
summed
up.
“most had been stolen, and stolen without ac-
“knowledgment.” “True,” replied Talleyrand;
“et pillé de tout le monde, il est toujours riche,” —
“and robbed by everybody, he is always rich.”
I have thus sought to give a notion of Bentham's
intellectual qualities, of his times, and of the gen-
eral character of his writings respecting law and
legislation. This has been necessarily an outline
view only. It remains to attempt, by way of
summing up, a critical estimate of the value of his
labors, and the nature and extent of the actual
influence upon our laws and jurisprudence of his
doctrines and writings.
If we are to form a sound judgment on this sub-
ject, we must not mistake the point of view from
which to look at him. To be truly appreciated,
Bentham must, as I have already said, be regarded
primarily and essentially as a law reformer gen-
erally, and specially as a reformer of the then ex-
isting law of England. He was bold, courageous,
and original. He was the first to expose its defects
and to suggest the remedies required. He de-
stroyed with his own force the professional and
general superstition that the law was perfect, and
the effect of envy or malice, or any really unamiable quality, than the
freaks of a pettish child, and are scarcely a fitter subject of censure or
Criticism.” -
The late eminent law teacher, Professor Theodore W. Dwight,
wrote me, October 24, 1890, in regard to Bentham, thus: “I am
astonished at his legal genius, revere him for his kindly disposition
even towards brutes, am delighted with his wit and playful repartee,
and enjoy his sarcasm, of which, however, he mever made use except
when the occasion required it.”
O OVA' Z.A. W. ZZTS, A/POGAEA.S.S/VE FORCE.S. 333
are—
by his labors and writings he was the means of at
length awakening the public mind from its stupor
and inertia on this subject. His merits as a critic
and censor of the law as he found it in his day and
in his country, it is difficult to overvalue. Black-
stone, the type of the professional mind of his age,
regarded the English law as almost perfection itself;
and he found his pleasurable function to be to
defend, to exalt, to glorify it." Bentham held pre-
cisely opposite views. To him the English law,
instead of a model of excellence, was a system full
of delays, frauds, snares, and uncertainties; and the
lawyers were its unthinking or interested defenders.
His remedy was not to stop leaks in the roof, put
in new panes of glass, and otherwise repair the
rotten and dilapidated structure, but to demolish it
and rebuild anew. By many he was regarded for
the greater part of his life as an iconoclast, and by
others as a dreamer who labored under the harm-
less delusion that he was a benefactor of his race,
while in reality he was passing his life uselessly
in Utopia.”
1 See ante Lecture XI.
* Sir Samuel Romilly gives this interesting account of a visit
which he made in 1817 to Bentham : —
“Our last visit was to my old and most valuable friend, Jeremy Bentham,
at Ford Abbey. The grandeur and stateliness of the buildings form as
strange a contrast to his philosophy, as the number and spaciousness of the
apartments, the hall, the chapel, the corridors, and the cloisters, do to the
modesty and scantiness of his domestic establishment. The society we found
and left with him were Mill and his family and a Mr. Place, — the Charing
Cross radical tailor. We found Bentham passing his time, as he has always
been passing it since I have known him, - which is now more than thirty
years, – closely applying himself six or eight hours a day in writing upon
laws and legislation and in compiling his Civil and Criminal Codes, and
spending the remaining hours of every day in reading, or taking exercise by
way of fitting himself for his labors, or, to use his own strangely-invented
Lecture
XII.
Bentham's
merits as a
critic and
censor of
our law.
334. ZA WS AAWD 70A:/SPA’UDENCE.
Tecture
XII.
Value of
Bentham’s
labors.
It does not essentially detract from Bentham's
merits, or the regard in which posterity should hold
him, that he exaggerated, as he doubtless did, the
absurdities and defects of the system that he as-
sailed, or that his invectives against lawyers, who
as a body supported it and resisted all attempts
to reform it, were extravagant and unjust. All this
may well be pardoned to his honest convictions, to
his lifelong labors and his disinterested zeal for the
public good. Nor does it essentially detract from
his just estimation that he is an illustration of
Bacon's observation that “there is a superstition
“in avoiding superstition, when men think to do
“best if they go farthest from the superstition
“formerly received.” Nor does it materially dimin-
ish his fame that we cannot accept all of his doc-
trines as sound, or all of his conclusions from
doctrines whose general soundness are no longer
questioned.
The following, which I give in John Stuart Mill's
own words, seems to me to set forth with judicial
fairness Bentham's chief merits and the nature of
the obligations of the world to him : —
“Bentham,” he says, “is one of the great seminal
“minds in England of his age.” “He is the teacher
“of teachers.” “To him it was given to discern
“more particularly those truths with which existing
phraseology, taking ante-jentacular and post-prandial walks to prepare him-
self for his task of codification. There is something burlesque enough in
this language; but it is impossible to know Bentham, and to have witnessed
his benevolence, his disinterestedness, and the zeal with which he has devoted
his whole life to the service of his fellow-creatures, without admiring and
revering him.”
Life of Sir Samuel Romilly, edited by his sons, vol. ii., p. 473 (3d ed.),
Diary, under date September, 1817.
OUAE Z.A. W. ZTS, AA’OGA2FSS/VE AWORCES. 335
“ doctrines were at variance.” “Bentham has been
“in this age and country the great questioner of
“things established. It is by the influence of the
“modes of thought with which his writings inocu-
“lated a considerable number of thinking men, that
“the yoke of authority has been broken, and innu-
“merable opinions, formerly received on tradition
“as incontestable, are put upon their defence and
“required to give an account of themselves. Who,
“before Bentham, dared to speak disrespectfully, in
“express terms, of the British Constitution or the
“English law 7 . . . Bentham broke the spell. It
“was not Bentham by his own writings; it was
“Bentham through the minds and pens which those
“writings fed, - through the men in more direct
“contact with the world, into whom his spirit
“passed. If the superstition about ancestorial wis-
“dom ; if the hardiest innovation is no longer
“scouted because it is an innovation, — establish-
“ments no longer considered sacred because they
“are establishments, – it will be found that those
“who have accustomed the public mind to these
“ideas have learned them in Bentham's school, and
“that the assault on ancient institutions has been,
“and is, carried on for the most part with his
“weapons.””
1 Essay on Bentham, “Dissertations and Discussions” (Am. Ed.),
vol. i., pp. 355–358. John Stuart Mill in his Autobiography says:
“During the winter of 1821–22, Mr. John Austin, with whom at
the time of my visit to France my father had but lately become
acquainted, kindly allowed me to read Roman law with him. [John
Stuart Mill was then in his seventeenth year.] My father, notwith-
standing his abhorrence of the chaos of barbarism called English
law, had turned his thoughts towards the bar as on the whole less
Ineligible for me than any other profession; and these readings with
Lecture
XII.
Mill’s
critical
estimate of
Bentham.
336 A WS AAWD # UR/SPAE (VDEAVCAE.
Lecture
XII.
If time permitted, it would be easy to trace Ben-
tham's influence through other minds, and in the
Mr. Austin, who had made Bentham’s best ideas his own, and added
much to them from other sources and from his own mind, were
not only a valuable introduction to legal studies, but an important
portion of general education. With Mr. Austin I read Heineccius on
the Institutes, his Roman Antiquities, and part of his exposition of
the Pandects, to which was added a considerable portion of Black-
stone. It was at the commencement of these studies that my father,
as a needful accompaniment to them, put into my hands Bentham's
principal speculations, as interpreted to the Continent, and indeed to
all the world, by Dumont, in the “Traité de Législation.” The reading
of this book was an epoch in my life, one of the turning-points in
my mental history” (chap. iii.).
Further legal education Stuart Mill appears not to have received.
He was never called to the bar. I may here mention what, it
seems to me, is a remarkable circumstance. When Bentham was
seventy-seven years of age he committed to John Stuart Mill, then
about nineteen years of age, who was without other legal train-
ing than that above mentioned, the work of editing and preparing
for the press “The Rationale of Evidence.” Speaking of this sub-
ject, Mill in his Autobiography (chap. iii.), says: “About the end
of 1824, or beginning of 1825, Mr. Bentham, having lately got back
his papers on Evidence from M. Dumont (whose Traité des Preuves
Judiciaires, grounded on them, was then first completed and pub-
lished), resolved to have them printed in the original, and bethought
himself of me as capable of preparing them for the press. I gladly
undertook this task, and it occupied nearly all my leisure for about a
year, exclusive of the time afterwards spent in seeing the five large
volumes through the press. Mr. Bentham had begun this treatise
three times, at considerable intervals, each time in a different man-
ner, and each time without reference to the preceding; two of the
three times he had gone over nearly the whole subject. These three
masses of manuscript it was my business to condense into a single
treatise, adopting the one last written as the groundwork, and incor-
porating with it as much of the two others as it had not completely
superseded. I had also to unroll such of Bentham’s involved and
parenthetical sentences as seemed to overpass by their complexity
the measure of what readers were likely to take the pains to under-
stand. It was further Mr. Bentham’s particular desire that I should,
from myself, endeavor to supply any lacunae which he had left; and
at his instance I read, for this purpose, the most authoritative trea-
tises on the English Law of Evidence, and commented on a few of
OCVA’ Z.A. W.' A 7TS AA’OGA’A.S.S/VE ATO AQCAE.S. 337
way here pointed out, in England and in this coun-
try," not only in modifications and changes in specific
the objectionable points of the English rules, which had escaped
Bentham's notice.” “My name as editor was put to the book after
it was printed, at Mr. Bentham's positive desire, which I in vain
attempted to persuade him to forego.” “The ‘Rationale of Judicial
Evidence' is one of the richest in matter of all Bentham’s produc-
tions. The book contains, very fully developed, a great proportion
of all his best thoughts; while among more special things it com-
prises the most elaborate exposure of the vices and defects of English
law, as it then was, which is to be found in his works, not confined to
the Law of Evidence, but including, by way of illustrative episode, the
entire procedure or practice of Westminster Hall.”
1 The influence of Bentham in America, not only in respect of
the emendations of the Law of Evidence, but through the efforts of
other men who had caught his spirit, is directly seen in the extent to
which codification has been adopted. See ante Lecture IX, p. 260,
note. The labors of the celebrated Edward Livingston afford an-
other interesting illustration of Bentham’s influence in this country.
In the prime of his life misfortunes led Livingston in 1804 to quit the
home of his ancestors in New York and to make a new home in New
Orleans, then recently acquired by the United States. The question
whether the procedure in Louisiana should be according to the com-
mon law or continue upon the basis of the civil and Spanish law
having been judicially determined in favor of the latter, Livingston
drew up what is in effect a Code of Procedure, which was adopted by
the Legislature in 1805, consisting of twenty sections and of about
twenty-five printed pages. In its essential features it anticipated the
codes of nearly half a century later. Under an act of the General
Assembly of Louisiana, approved February 10, 1820, which provided
that a person learned in the law shall be appointed to prepare a Code
of Criminal Law, Evidence, and Procedure, Livingston was on Feb-
ruary 13, 1821, elected by the joint ballot of the Legislature to dis-
charge this duty. He reported his plan to the next Assembly, which
“earnestly solicited him to prosecute this work according to his
report.”
In 1829 Livingston had an interesting correspondence with Ben-
tham, in which the former acknowledged that he received his first
impulse “to the preparation of an original, comprehensive, and com-
plete system of penal legislation from Bentham’s works which had
appeared in the French of Dumont in 1802.” Hunt, “Life of Edward
Livingston,” p. 96, note. “The perusal of your works,” said Living-
ston to Bentham, “first gave method to my ideas, and taught me to
Lecture
XII.
22
338 A WS AAWD jº/R/SPA’UDAEAVCE.
Lecture
XII.
legislation and in modes of judicial procedure, but
upon existing notions in respect of legal education,
the necessity for and the methods of legal reform.
It would be interesting, for example, to draw the
parallel between Bentham and Austin, one of Ben-
consider legislation as a science governed by certain principles, appli-
cable to all its different branches, instead of an occasional exercise of
its powers, called forth only on particular occasions without relation
to or connection with each other.” He thus concludes: “Hereafter
no one can in criminal jurisprudence propose any favorable change
that you have not recommended, or make any wise improvement that
your Superior Sagacity has not suggested.” Hunt, p. 96, note; Den-
tham's Works (Bowring's Ed.), vol. x., p. 51. Livingston prepared a
complete Code of Crimes and Punishments, of Procedure, of Evidence,
and of Reform and Prison Discipline; but having been elected to Con-
gress and practically ceasing to reside in Louisiana, his codes were
never enacted into laws. Each code was accompanied with an elab-
orate introductory report; and these labors gave him great and de-
served fame at home and abroad. Chancellor Kent declared that
Livingston had “done more in giving precision, specification, accu-
racy, and moderation to the system of crimes and punishments than
any other legislator of the age, and that his name would go down to
posterity with distinguished honor.” Hunt, p. 281. Bentham urged
that Parliament should print the whole work for the use of the Eng-
lish nation. Hunt, p. 278; Bentham's Works, vol. xi., p. 37. Ville-
main declared it to be “a work without example from the hand of
any one man.” Hunt, p. 278. Sir Henry Maine pronounced Living-
ston to be “the first legal genius of modern times.” “Village Com-
munities,” paper on “Roman Law and Legal Education,” published
in 1856. Although the Livingston Code was not adopted as a whole,
yet Bancroft is quite justified in the observation that “it has proved an
unfailing fountain of reforms suggested by its principles.” Introduc-
tion to Hunt's Life of Livingston, p. xvii. The Livingston Codes and
Reports were republished in full in 1873 by the National Prison Asso-
ciation of the United States, with an Introduction by Chief-Justice
Chase, in which he expresses the satisfaction of the Association in
reproducing a work marked with such “keenness of insight, clearness
of statement, force of logic, beauty of diction, elevation of sentiment,
and breadth of sympathy.” He declared his own opinion to be that
the work “will prove that if Livingston was in advance of his times,
the day is at least approaching when his broad and comprehensive
views will not only be appreciated but realized.”
OUR LA W. ZTS PROGRESS/VE FORCES. 339
tham's most eminent disciples, and to show the par-
tial reaction of Austin against some of Bentham's
extreme views, and the extent to which the ques-
tions thus raised are profoundly agitating at this
moment not only a few thinking minds but the
body of the profession, — and this not only in
England, but in every country which speaks the
language and which has adopted the institutions
of England. This would lead to a consideration of
the controversies between the analytical and the
historical schools of jurisprudence, which their re-
spective advocates yet debate with much of their
original warmth, tending to the result, however,
that there is, after all, truth in each ; that properly
understood the two schools are not antagonistic but
complementary; and that the true course is to com-
bine the logical or analytical with the historical and
experimental, the former mainly supplying data for
scientific arrangement, the latter mainly supplying
the matter for a revised, improved, and systematic
jurisprudence. I must content myself with men-
tioning, without dwelling upon, these interesting
subjects. -
Passing from these general considerations, I
proceed to notice specifically two other sub-
jects. One is Bentham's reforms in the Law of
Evidence. Here the direct fruits of Bentham's
labors are plainly to be seen. In some respects
his “Judicial Evidence,” before mentioned, is the
most important of all his censorial writings on
English law. In this work he exposed the ab-
surdity and perniciousness of many of the estab-
Lecture
XII.
Bentham
and Aus-
tin.
Bentham’s
direct in-
fluence on
the Law of
Evidence.
34O Z4 WS AAWD 5'0E/SPRUDENCE.
Lecture
XII.
Bentham’s
direct in-
fluence on
...the Law of
Evidence.
Denman's
and
Brougham's
Acts relat-
ing to evi-
dence.
lished technical rules of evidence. “In certain
cases,” he says, “jurisprudence may be defined,
“the art of being methodically ignorant of what
“everybody knows.” Among the rules combated
were those relating to the competency of witnesses
and the exclusion of evidence on various grounds,
including that of pecuniary interest. He insisted
that these rules frequently caused the miscarriage
of justice, and that in the interest of justice they
ought to be swept away. His reasoning fairly
embraces the doctrine that parties ought to be
allowed and even required to testify. This work
appeared in Paris in 1802, and in England in
1825 and 1827; but it produced no immediate
effect on the professional mind. It was generally
regarded as the speculations of a visionary. As I
write I have before me Starkie's Evidence, the third
edition of which appeared in 1842, and the wisdom
of the exclusionary rules of evidence are not so
much as criticised or questioned.
But Bentham had set a few men thinking. He
had scattered the seeds of truth. Though they fell
on stony ground they did not all perish. But verily
reformis a plant of slow growth in the sterile gardens
of the practising and practical lawyer. Bentham
lived till 1832, and these exclusionary rules still
held sway. But in 1843, by Iord Denman's Act,
interest in actions at common law ceased, as a
rule, to disqualify; and in 1846 and 1851, by Lord
Brougham's Acts, parties in civil actions were as a
rule made competent and compellable to testify. I
believe I speak the universal judgment of the pro-
fession when I say that changes more beneficial in
OUR Z.A W. ZTS, AA’OGA’A.S.S/VAE AWORCAE.S. 34. I
the administration of justice have rarely taken
place in our law, and that it is a matter of pro-
found amazement, as we look back upon it, that
Lecture
XII.
these exclusionary rules ever had a place therein,
and especially that they were able to retain it
until within the last fifty years.
Let us be just. The credit of originating this
great improvement is due not to Denman and
Brougham, but it essentially belongs to Bentham,
although he was in his grave before it was actually
effected." Lord Justice Stephen forcibly remarks
of Bentham's assault on the system of judicial
evidence that “it was like the bursting of a shell
“in the powder magazine of a fortress, the frag-
“ments of the shell being lost in the ruin which
“it has wrought.”* The moral is obvious. The
philosophic student of our laws may often have a
keener and juster insight into their vices and im-
perfections than the practising lawyer, whose life
and studies are exclusively confined to the ascer-
tainment and application of the law as it is, and
who rarely vexes himself with the question of what
it ought to be, or makes any serious effort to re-
form it. But let me not be misunderstood. While
the philosophic student is able to point out defects
in the laws, yet the history of the law shows that
only practical lawyers are capable of satisfactorily
executing the work of reform. Bentham's failure
in directly realizing greater practical results grew
out of his mistaken notion that the work of actual
1 See post Lecture XIII.
2 “General View of the Criminal Law of England,” p. 206; also
Introduction to his Digest of Evidence.
Credit due
to Ben-
tham for
improve-
ments in
the Law
of Evi-
dence.
Cause of
Bentham's
failure in
directly
realizing
practical
results. ;
342 AA WS AAWD 70A:/SPAC/DEAVCE.
Tecture
XII.
Bentham’s
views of
codi-
fication
stated.
amendment could be accomplished without experts,
— that is, without the aid of the bar and without
its active support.
The last matter to which I shall refer is that to
which Bentham gave the name by which it is now
universally known, – codification.
With a view to ascertain with exactness Bentham's
views, I have recently gone over anew his writings
relating to this subject. Very different ideas in our
day are, as I have heretofore said, attached to what
is meant or implied by a code, and much of the dis-
pute concerning codification is after all one over
words, or one arising from the want of a previous
definition of the subject-matter of the disputation."
What Bentham meant by codification, however, is
plain enough. He meant that a code should em-
brace all general legislation, not simply as it exists,
but as it ought to be amended and made to exist, —
that is, all legislation except local and special stat-
utes; that it also should embody all the principles
of the common law which it were expedient to
adopt, — these to be expressed in words by legisla-
tive enactment, the gaps or lacunae to be filled up
in like manner by the legislature; the whole to be
systematically arranged, so that all possible cases
would be expressly provided for by written rules;
that the function of the courts to make “judge-
made law,” as he is fond of stigmatizing it, should
cease, and that thereafter all changes or additions to
this complete and authoritative body of law should
be made by the law-making body, and by it alone.
1 See ante Lecture VI., p. 180.
OUR LA W: ITS PA’OGRESS/VE FORCES. 343
*—
I must say that in my judgment this in its full
extent is not only an impracticable scheme, but
one founded in part upon wrong principles. In
a refined and complex civilization no legislative
foresight, no finite intelligence, can anticipate, de-
fine, catalogue, and formulate in advance rules ap-
plicable to the infinite number and the infinite
variety of cases that will inevitably arise. This
view of a code also exaggerates, or, to use Ben-
tham's language, maximizes, the evils of case-law,
and underrates or minimizes its advantages. It
overlooks the fact that case-law is a permanent
necessity. The judicial office will, at all times,
under any possible code, have to deal with and
determine questions and cases not possible to be
provided for by any express statutory provision."
A well-constructed code may, and doubtless will,
lessen the number of such questions and cases;
but no code can do more. The rest must be left
to the courts. M. Portalis, in a well-known paper
relating to the French Civil Code, expresses this
truth with clearness and force. “It is to jurispru-
“dence [using the term in distinction from statute
“ or positive law] that the legislator must abandon
“those rare and extraordinary cases which cannot
“enter into the scheme of a rational legislation;
“the variable, unaccountable details which ought
“never to occupy the attention of the legislator,
“ and all of those objects which it would be
“in vain to attempt to foresee, and dangerous
“prematurely to define.”
1 See ante Lecture X, p. 268; Dillon, Munic. Corp. (4th ed.), vol.
ii., § 934, a , Amos, “Science of Law,” chap. v.
Lecture
XII.
Bentham's
scheme
imprac-
ticable in
its full
extent,
and why
344 LA WS AAWD 520/º/SPRUDENCE.
Lecture
|XII.
Why codi-
fication
necessary.
We have now, and for centuries have had, two
wholly independent manufactories, so to speak, of
law, - the legislature professedly making statute
law, the courts silently making case-law; and this
without any unity of conception, plan, or action.
Statutes are piled upon statutes, and the law reports
of Great Britain and America may be roundly put
at eight thousand volumes, and are constantly mul-
tiplying." This colossal body of case-law is wholly
unorganized and even unarranged, except so far as
digests and elementary treatises may be considered
as an arrangement, which scientifically viewed they
are not. The infinite details of this mountainous
mass in its existing shape — bear me witness, ye
who hear me ! — no industry can master and no
memory retain. The English portion of it has
been aptly likened to “chaos tempered by Fisher's
Digest.” The American portion already exceeds in
size and complexity the English portion, and as we
attempt to survey it we are reminded of the dread
and illimitable region described by Milton, where
... “Chaos umpire sits,
And by decision more embroils the fray
By which he reigns.”
I do not believe that it is practicable to codify it
all in the sense that the resulting code shall super-
sede for all purposes the law reports; but on many
subjects, and to a very large extent in respect of
all, codification is practicable, and so far as it is
practicable, it is, if well done, desirable. Mark
the qualification, if well done, not otherwise.
1 See ante Lectures VIII., IX, X., passim.
OOWA’ Z.A. W. ZZT.S. AA’OGA’A.S.S/VAE AWOA’CAE.S. 345
g-
Any code that is made, whatever may be its
scope, must be based upon the fundamental prin-
ciple that the existing body of our law as it has
been developed in the workings of our institutions
and tested by our experience is in substance the law
that is best fitted to our condition and wants; for
all true law has its root in the life, spirit, ideas,
usages, instincts, and institutions of the people. It
springs from within ; it is not something alien to
the people, to be imposed on them from without.
If a metaphor will not mislead, true law is a na-
tive, independent, natural growth, and not an
exotic. Bentham did not deny this in principle,
but he was too much inclined to look at laws
logically rather than historically. It follows that
a code must not be one imitated from or servilely
fashioned after Roman or foreign models. On this
subject Bentham had correct notions. His bold,
original mind and his self-sufficient powers saw as
little to admire in the Roman as in the English law.
I repeat it as my judgment that our code must not
pre-suppose that the Roman law as it anciently
existed, or as it exists in the modern adaptations
of it in the States of Continental Europe, is supe-
rior in matter, substance, or value, to the native,
natural, indigenous product. It must assume pre-
cisely the contrary. Freeman puts a general truth
epigrammatically when he says “that we, the Eng-
“lish people, are ourselves and not somebody else.
“. . . Englishmen after all are Englishmen.” "
This is equally true of the American people.
And both Englishmen and Americans want their
* Preface to lecture, “Chief Periods of European History.”
Lecture
XII.
The true
basis and
principle
of codifica-
tion Sug-
gested.
346 M.A WS AAWD 9'0E/SPA’UDEAVCE.
Lecture
XII.
Tacit codi-
fication
constantly
going on.
own laws, and not those of some other people. It
would be as impossible radically to change their
legal systems as to change the nature of the people.
The materials for such a code already exist. A
period of development is at some time reached in
the legal history of every people when it is neces-
sary to restate and reconstruct their laws. It seems
to me that we have reached that period. Our mate-
rials for such restatement and reconstruction, which
we may, if you please, call a code, are ample. They
surpass in extent, in abundance, in variety, in rich-
ness, and above all in adaptation to our wants, any
supply that can come from foreign sources.”
What Sir Henry Maine aptly calls “tacit codi-
fication” is a process which is in constant operation,
through the labors of judges and text-writers. In
this work elementary writers of learning and expe-
rience take an important part. In the scattered con-
dition of our case-law their works are indispensable.
When judges and text-writers deduce from the
cases a principle and formulate it, and that for-
mula is stamped with authority, either by long
usage or judicial sanction, so that the courts do
not go behind it to the cases from which it was
deduced, there you have to this extent codifica-
tion. This “stereotyping, as it were, of certain
legal rules, is,” says Maine, “at this moment pro-
“ceeding with unusual rapidity, and is indeed one
“of the chief agencies which save us from being
“altogether overwhelmed by the enormous growth
“of our case-law.””
1 See ante Lecture VI., p. 174; Lecture X.
* “Village Communities '' (Am. Ed.), pp. 368, 369. The subject
O OVA' LA W. ZZT.S. AA’OGA’A.S.S/VE FOA’CAE.S. 347
What is needed is the constructive genius and
practical wisdom that can take these truly rich,
invaluable, native but scattered materials, — using
with a wise and generous eclecticism foreign ma-
terials only when the native do not exist or the
foreign are manifestly superior, – and out of all
these build an edifice of law, primarily designed
and adapted to daily use, which shall be at
once symmetrical, harmonious, simple, and com-
modious. There is here room and need for all.
The institutional writer, the law teacher, the philo-
sophic student, the scientific jurist, the experienced
lawyer, the learned judge, the practical legislator,
has each his place. They are not repellent and
antagonistic agencies, but allies and co-laborers in
the noblest work that can engage the attention,
and draw forth and exemplify the highest powers
of the human intellect. Toward the realization
of this ideal let us press on with generous ardor,
guided not by the motto of Ihering, prescribed
for Continental action, — “Through the Roman
law, but beyond it,” — but rather by this other
motto: “Through our own law, and beyond it
wherever it is plainly defective or incomplete.”
of text-books as one of the literary authorities of our law, their office
and use, the functions of text-book writers, and the nature of text-
book law, I have seen nowhere so fully or well presented as in Pro-
fessor Clark’s “Practical Jurisprudence,” part ii., chaps. vii.—xii.,
inclusive.
Lecture
XII.
The exist-
ing need
of our law.
LECTURE XIII.
OUR LAW : A CENTURY’s PROGRESS AND DEVELOPMENT.
— IMPORTANT CONTRIBUTIONs To our LAws MADE By
THE UNITED STATES. — SPECIFIC CHANGES IN THE LAws
OF BOTH COUNTRIES UPON SUBJECTs of GREAT AND PER-
MANENT INTEREST. — PRESENT ConDITION of our LAws
AND A FORECAST OF THEIR EvoluTION.
HAVING in previous lectures considered our law
in its old home, and its distinguishing char-
acteristics, its extension to and development in this
country, its excellences and defects, and presented
some views as to the scope and methods of its
reformation or amendment, I shall now ask your
attention to the present condition of our law as a
result of the changes which have been wrought
therein since the establishment of our national
independence, a little more than a century ago.
This lecture will illustrate anew how ceaseless
are the movements of the social forces, and as a
consequence that law inevitably undergoes constant
changes, some of which are conscious and pre-de-
termined, and others silent and irresistible but none
the less actual." It will also illustrate, I think, in a
very striking manner the truth of Burke's philo-
sophic statement, — and coming from him most
Lecture
XIII.
The pres-
ent Con-
dition of
our law.
Equity
and utility
the real
founda-
tions of
law.
1 See ante Lecture XII.
OOA” A W. A. CAEA77 UAE P'S ANACOGA’A.S.S. 349
remarkable concession, — that “in all forms of gov-
“ernment the people is the true legislator; and
“whether the immediate and instrumental cause of
“the law be a single person or many, the remote
“ and efficient cause is the consent of the people,
“either actual or implied; and such consent is ab-
“solutely essential to its validity. . . . In reality
“there are two, and only two, foundations of
“law; and they are both conditions without which
“nothing can give it any force : I mean equity and
“utility.”
It will, I think, also illustrate the fact that the
wisest must be content to see but a little way in ad-
vance; that neither jurist nor legislator can expect
the jurisprudential millennium (if I may so phrase
their ideal) to come per saltum, if it ever comes at
all, but must be content like the good physician to
aid the vis medicatria naturae, rather than rashly to
resort to heroic remedies which are full more apt
to hurt than to cure. It will, moreover, and chiefly,
exemplify the consolatory truths that the rights of
the individual man, bottomed alone on the fact
that he is a man, are being more and more realized
and secured; that men are becoming more humane,
more benevolent and sympathetic, more regardful
Lecture
XIII.
The devel-
opment of
our law
on these
lines jus-
tifies a
cheerful
forecast.
of the rights of others, more sensible of a common
bond of humanity; and that although the paths are
still toilsome, and ofttimes discouraging, the race of
man is constantly reaching a higher level by rising
1 Tract on the Popery Laws, vol. vi., pp. 320, 323 (Little, Brown,
& Co., American Edition of Burke's Works). See ante Lecture VII.,
p. 206, as to Burke's opinion that the passions of the people ought to
be restrained “by power out of themselves.” But the two views are
not inconsistent. Pollock, “Science of Politics,” pp. 86, 87.
35O - ZA WS AAWD 3'UR/SPA’UDEAVCE.
* to higher conceptions of duty, which will in the due
order and providence of God find their expression,
embodiment, and glorious fruitage, in the still higher
and better law of the future, — which will more and
more protect the rights of the individual, from inva-
sion both by the State and by temporary majorities
of the people. It will justify, I think, the encoura-
ging and sustaining forecast of humanity expressed
with the felicitous words which your Kent Professor
knows so well how to use, when in his late Ben-
nington oration he said that “the gift of prophecy
“is mercifully withheld from man, but that hope,
“kindlier than prophecy, stands in the place of it,
“and it beholds with the eye of faith the great prin-
“ciples of civil and religious liberty working them-
“selves out to their final maturity, - a prosperity
“more and more widely diffused among common
“men ; an advancing civilization not without the
“vicissitudes, the blemishes, the mistakes, the sor-
“rows through which humanity's path must always
“lie, but in which the gain shall surpass the loss,
“ and the better surmount the worse, enlightened,
“from generation to generation, by an increasing
“intelligence, a broader knowledge, and a higher
“morality.” "
Specific Preliminary to noticing the specific changes dur-
i..." ing the century that is past in the laws common to
*. both countries, I will briefly refer to a few of the
gººd more important contributions which we have made
to our own system of laws. We have introduced
into the law of nations the important principle of
1 Edward J. Phelps, Bennington, Vermont, Anniversary Oration,
1891.
OOW/º LA W. A. CAE/WZTUAE Y'S AA’OGA’A.S.S. 35 I
voluntary expatriation ; * and by the Constitution
of the United States, so far as this nation is con-
cerned, treaties are declared to be the supreme law
of the land, as binding upon the courts as the Con-
stitution or an act of Congress, and enforceable like
other laws by the judicial tribunals.
We have devised and put into successful opera-
tion, as shown in a previous lecture, written con-
stitutional limitations upon every department of the
government which protect the people against the
power of the State as well as against their own
1 The history of this doctrine has been accurately traced by Pro-
fessor Baldwin, of the Yale Law School (since raised to the Supreme
Bench of the State), in his learned address on American Jurispru-
dence, heretofore referred to, delivered in 1892, before the Ohio State
Bar Association. He says: “Into the law of nations we of America
have introduced the principle of voluntary expatriation. It is, indeed,
the condition of our existence. The doctrine of perpetual allegiance
was undisputed in the Old World. Its application to Americans by
the British Crown was one of the grievances recited in the Declaration
of Independence; but we ourselves asserted its obligation long after in-
dependence had been achieved. Jeremiah Mason once said that the
development of an American jurisprudence could only be looked for
from the courts of the National Government. Upon this question,
however, it was a court of a State, which, following the language of
her constitution, framed by Franklin, first declared expatriation an
original and indefeasible right of man ; and this at a time when those
of the United States adhered to the rules of the common law. See on
this subject Murray v. McCarty, 2 Munford (Va.) Rep., 393, 1811;
Williams’s Case, Wharton’s State Trials, 652. Thus it was left to
Congress to affirm by statute the American principle, as soon as the
nation felt strong enough to assert it against the world (United States
Revised Statutes, § 1999; Act of July 27, 1868), and treaties which
have been made, in pursuance of this declaration, have now obtained
its recognition in almost every country that can call itself civilized.
This new rule of American jurisprudence is the work of the bar rather
than the courts. Its earliest supporters were Adams and Jefferson;
and to our attorneys-general, and the great lawyers who from time to
time have had the direction of the Department of State, we owe
especially its international authority.”
Lecture
YIII.
America's
contribu-
tions.
352 ZA WS AAWD 70A:/SPRUDENCE.
Lecture
XIII.
America’s
contribu-
tions.
haste and passions.' We have effected a complete
and permanent separation of Church and State.
We have established the security of titles to lands
by a public registry system, which in effect com-
pels the registration of every instrument which
concerns real property. We have in every State
of the Union adopted the principle of the equal
inheritance of lands by all the children, male and
female alike. We have made lands freely alienable
and subject to the payment of debts, and in many
respects ameliorated, improved, and simplified the
law of real property.”
1 See ante Lecture WTT., passim.
2 Ante Lecture VIII., p. 237 et seq., and note on p. 241. Mr. David
Dudley Field, in a paper entitled “American Progress in Jurispru-
dence,” prepared by request for the World’s Congress on Jurispru-
dence and Law Reform in connection with the Columbian Exposition
in Chicago, 1893, reprinted in the American Law Review, vol. xxvii.,
p. 641, gives a summary account of the progress of American laws
and jurisprudence. I have space for only a few extracts from this
instructive paper illustrative of the text: “We began with asserting
the sovereignty of the people. This was done by the Declaration of
Independence in 1776. . . . In our country this supreme power is
divided between the Union and the States, but so much of it as has
been given to the former was given by the latter. The result is, that
Congress is not sovereign, nor is the President sovereign, nor is the
Judiciary sovereign ; nor, indeed, are all three combined sovereign.
They may exercise their part of the sovereign power, but it is only
by delegation that they exercise it at all. On the other hand, the
reserved powers are all with the separate States [or the people
thereof.], so that we have in fact a divided sovereignty, but none
the less is it true, that sovereignty in this country resides with the
people, partly in all the States united, and partly in the several States
— ‘E pluribus unum.” (See ante Lectures V., VII.) . . . Following this
primal and fundamental principle of sovereignty in the people, and
consecrated by it, are certain rights pronounced inherent in every
human being, to be lost only for crime : the right to life; the right
to liberty; the right to worship God as conscience dictates; the right
to choose one’s home wherever he can find it ; the right to speak and
Write freely; and the right to labor when, where, and for such reward
OCZA WA W. A. CAEAV7'OWA’Y’.S. AA’OGAEA.S.S. 353
It is almost needless to remark that at the date of
the establishment of our national existence, English
as the laborer and his employer may agree to between themselves.
Under the influence of these great principles, our political system,
State and national, has been built ; a fabric purely American, with-
out precedent in the past and ready for further development in the
future. . . . The United States have placed their constitution beyond
the reach of executive or legislative power. The President may act
and the Congress may act, but the judiciary may decide after all,
whether the act is authorized by the constitution. Never before in
any constitutional government was the organic law put under the
guardianship of the judiciary. (See ante Lecture VII.) This is a
feature purely American, and of value incalculable for the protection
of individual rights.
“In the category of these individual rights I conceive that the
greatest achievement ever made in the cause of human progress is
the total and final separation of the State from the Church. If we
had nothing else to boast of, we could claim with justice that first
among the nations we of this country made it an article of Organic
law that the relations between man and his maker were a private
concern into which other men had no right to intrude. . . . Besides
this great act of deliverance, we have emancipated woman from the
domination of her husband; we have freed the honest debtor from
the possibility of passing his life in prison; we have rendered it im-
possible for legislation to make that act a crime which was not a
crime when it was committed ; we have forbidden the States to
impair the obligation of a contract between man and man ; we have
proclaimed from sea to sea that all men are created equal in rights,
and that among those rights are the rights to life, liberty, and the
pursuit of happiness; we have imbedded in the fundamental law of
the land as principles inviolable and eternal, that no man can be de-
prived of these rights without due process of law, and that all are
entitled to the equal protection of the laws.”
I close this note with the observation that we are thus essen-
tially a free people. “For who,” inquired the author of the famous
“Farmer's Letters,” A. D. 1767–68 (John Dickinson, a great and
venerable name, to which history has as yet scarcely done full jus-
tice), — “for who are a free people 2 * His answer to this question
has perhaps never been excelled. It was in these words: “Not those
over whom government is reasonably and equitably exercised, but
those who live under a government so constitutionally checked and
controlled that proper provision is made against its ever being other-
wise exercised.” Stillé’s “Life and Times of John Dickinson,” p. 89.
Lecture
XIII.
23
3.54 LA WS AAWD # CVRISPRUDEAVCE.
Lecture law was, notwithstanding the modifications neces-
YIII. * wº e º
sary to adapt it to our situation, substantially our
§º. law. The first completed edition of Blackstone
tial iden-
tity of was published in 1769, only six years before the
*. American Revolution. Professor Hammond in the
ican law. preface to his edition of Blackstone tells us that
“ there is abundant evidence of the immediate
“absorption of nearly twenty-five hundred copies
“of the Commentaries in the thirteen colonies
“before the Declaration of Independence. The
“natural result must have been that this work
“became at once the standard authority upon
“law in every American court.” We have thus,
fortunately, the means of conveniently ascertaining
the exact state of the English and American law
at the period when our existence as a separate
nation began.
Condition The great divisions of the English law were then
#"..."º definitely fixed. It consisted of the common law as
ºr, modified and supplemented by acts of Parliament;
ºpend of equity law, the product of the Court of Chancery;
of the admiralty law, crippled indeed by the jealousy
and hostility of the common lawyers and judges;
and of the criminal law, resting mainly upon an
enormous number of statutes, passed at different
times, during several hundreds of years. If we
look with an unprejudiced eye at the common law
excluding equity, but including the amendments
and changes which had been made therein from
time to time by Parliament, our wonder is how the
great Commentator, whose perpetual note is one of
praise, could be so blind to its defects, both of sub-
* See ante Lecture V., p. 150, note; Lecture XI., p. 298.
O UR Z.A. W. A. CAEAV7'OWA’ V'.S. AA’OGA’A.S.S. 355
stance and form. Many of its doctrines resting
upon usage and custom had originated when the
nation was in the twilight of its civilization, and
they were not adapted to a more refined and com-
plex state of society." Conservatism patiently bore
the evil and resisted change. The common-law
forms of action were inelastic and inadequate, be-
sides which the common lawyers were idolaters of
the system, and regarded innovation as a species
of legal sacrilege. They had, moreover, much of
the fondness of the schoolmen for verbal subtil-
ties, puerilities, and refinements, which obscured
and thwarted sound reasoning, and which, being
essentially sterile, could never bear any whole-
some fruit.
But, largely, the curse of the common law came
from the feudal system, and from the obstimacy
with which the doctrines of feudalism were ad-
hered to, when the system, as a distinct system,
had ceased to exist. The feudal doctrine of ten-
wre, by which all real property was held of
a superior, by which the tenancy was always to
be full, by which alienation was restrained, by
which land was bound up in fetters of iron and
made by entail to gratify ancestral and family
pride, and by legislation to escape its share of the
public burdens, out of which doctrine of tenure
grew uses and trusts, and equitable as distinguished
from legal estates, and from thence a large portion
of the extraordinary jurisdiction of the Chancellor,
— the feudal doctrine of tenure pervading every
part of the common law, left, in every part, its
1 See ante Lectures XI., XII.
Lecture
XIII.
The poi-
SOIT OUIS
effects of
feudalism
and the
doctrine
of tenure.
356 A WS AAWD jº/A/SPACOZ)ZAVCAE.
Lecture
XIII.
baneful effects. It has always seemed to me that
tenure, in its manifold ramifications and conse-
Quences, in time came to be the chief bane of the
common law. Had it not been for equitable estates
and rights which thus originated, it is not improb-
Land laws
of Great
Britain.
Our more
fortunate
Condition.
able that Chancery as a separate tribunal would long
since have been rendered unnecessary, and ceased
to exist by the natural enlargement of the jurisdic-
tion and remedies of the common-law courts."
The land laws of Great Britain, which to-day
press with such heavy weight upon the agricultural
classes, grew out of the feudal system. That sys-
tem has never died at its roots in England. John
Bright not many years ago declared that “ancient,
“stupid, and mischievous legislation embarrassed
“land in every step you take in dealing with it.”
In England and Wales, about five thousand persons
hold nearly one half the entire acreage; in Scot-
land, less than one hundred persons own about one
half, and less than two thousand about nine tenths
of all the lands; and in Ireland, less than two thou-
sand proprietors, many of whom are non-residents,
hold two thirds of the island. As a result of primo-
geniture, of entailed estates and family settlements,
Great Britain is to-day a land of tenants.
We have not, indeed, in this country wholly es-
caped from the complicated system of estates, which
characterizes the English law. We ought to be free
from them. We yet shall be. Primogeniture, en-
tails, family settlements on the English model, are
here unknown ; land is plenty and cheap, and the
happy result is that we are a nation of proprietors
1 See ante Lecture VI, pp. 169–171.
OUA’ ZA. V. A. CAEN 7TOWA’ V’.S. AA’OGA’A.S.S. 357
and not of tenants. Herein consists one of the
chief sources of individual prosperity and national
strength. In many of the countries of the Old
World the landless poor are the natural enemies of
the government. Here, every proprietor, however .
small, is the natural ally of government and of law.
There may be some reason for the various forms of
socialism, communism, anarchism, among the strug-
gling and oppressed peoples of the Old World.
They are the unreasoning and desperate remedies
of caste, and hunger, and despair. But here, and
among us, such ideas are baneful exotics, which
have taken no deep root, and attract little notice
except when their wild or bad adherents seek to
propagate them by illegal violence or murder.
Sydney Smith drew this graphic picture of the
condition of the English laws, on the enumerated
subjects, in 1802, — that is, about fifteen years after
our government was established: “ The Catholics
“were not emancipated. The Corporation and
“Test Acts were unrepealed. The game laws
“were horribly oppressive. For every ten pheas-
“ants which fluttered in the wood, one English
“peasant was rotting in jail. Steel traps and
“spring guns were set all over the country; pris-
“oners tried for their lives could have no counsel.
“Lord Eldon and the Court of Chancery pressed
“heavily on mankind. Libel was punished by the
“most cruel and vindictive imprisonments. The
“laws of debt and conspiracy were little under-
“stood. Not a murmur against any abuse was
“permitted; to say a word against the suitorcide
“delays of the Court of Chancery, or the cruel
Lecture
XIII.
Sydney
Smith’s
picture
of the Eng-
lish laws
at the be-
ginning
of the cen-
tury.
358 LA WS AAWD 70A/SPA’UDENCE.
Lecture
XIII.
Specific
changes
since
wrought.
“punishments of the game laws, or any abuse
“which a rich man inflicted and a poor man suf-
“fered, was treason against the plousiocracy, and
“was bitterly and steadily resented.” Again he
said: “The abuses of the Court of Chancery have
“been the curse of England for centuries. For
“twenty-five long years did Lord Eldon sit in
“the court, surrounded by misery and sorrow,
“which he never held up a finger to alleviate.
“The widow and orphan cried to him as vainly
“as the town-crier cries when he offers a small
“reward for a full purse; the bankrupt of the
“court became the lunatic of the court; estates
“mouldered away and mansions fell down, but
“ the fees came in and all was well. But in an
“instant [in 1832] the iron mace of Brougham
“shivered to atoms this house of fraud and delay.”
If this picture is too highly colored, its essential
features are correct; but we are glad to know
that in all of these respects the English law has
been greatly improved, mostly within the last
sixty years.
Let us now look more specifically at other
changes in the laws of England and America upon
subjects of general and permanent interest.
Imprisonment for Debt, Distress for Rent, Modern
Homestead and other Ea'emption Laws. – One hundred
years ago imprisonment for debt in Great Britain
and in this country was a common remedy. I do
not remember any suggestion in Blackstone that it
had ever occurred to him that the law giving such a
tremendous power to the creditor was unjust or im-
politic. The old reasoning was this: The creditor
O OVA2 WCA VV : A CAE/WZTOWAQ P’.S. AA’OGA’A.S.S. 359
has a legal right to his debt; if the debtor will not
or does not pay, the creditor is entitled to seize
and sell his property; if he has no property, the
creditor is entitled to his services, and if so, then to
the control and possession of his person. Cases of
fraud were not distinguished from cases of misfor-
tune. A writ of capias ad satisfaciendum upon which
the judgment debtor was committed to prison till
the debt was paid was as common a remedy one
hundred years ago as an ordinary writ of execution
to sell the debtor's goods. As we look back upon
the absurdity, impolicy, and cruelty of imprison-
ment for debt, we wonder what influences had stu-
pefied the conscience and intelligence of mankind
that laws so atrocious were so long endured. About
sixty-five years ago, agitation on this subject first in
this country and then in England commenced, and
it soon led in the various States of the Union to the
total abolition of imprisonment for debt, except in
cases of actual fraud and fraudulent breaches of
trust, And thus was forever swept away this relic
of the severity of the earlier periods of our race."
England followed our example. A parliamentary
inquiry showed that in eighteen months after the
commercial revulsion of 1825, more than one hun-
dred thousand writs were issued, and thousands of
debtors were actually confined in the English
prisons. By various acts passed during the reign
of the present sovereign, beginning in 1838, im-
1 Kent's Com., vol. ii., p. 398, note. America, indeed, began, says
Professor Baldwin, to open the prison doors of insolvent debtors at
the era of the Revolution. See the Constitution of Pennsylvania of
1776, art. 1, § 28; 2 Poore’s “Charters and Constitutions,” p. 1546.
Lecture
XIII.
Abolition
of impris.
Onment
for debt.
36O M.A WS AAWD jº/R/SPA'UDAEAVCE.
Lecture
XIII.
Iºxemption
laws.
prisonment of honest debtors has ceased to exist.
The enlarged English Act of 1869 substantially
abolished imprisonment for debt. It remains only
in a few cases of criminal or fraudulent character.
Verily, the world does move | And happily the
permanent trend and movement are ever in the
direction of a higher and a more humane level.
In this connection and by reason of the striking
contrast of policy which the law of our own day
offers to the law of a century ago, I may refer for a
moment to the existing exemption and homestead
laws in this country.
When Blackstone wrote, not only did imprison-
ment for debt exist, but the harsh and oppressive
remedy of distress for rent was in both countries in
full force. Various acts of Parliament, some then
comparatively recent, had given to this remedy a
sharper edge than it had at common law. The
landlord, without suit or adjudication, could enter
the tenant's premises and seize everything, with
insignificant exceptions, and hold or sell it for his
rent. Our State legislatures commenced years ago
to pass laws exempting from execution necessary
household goods and personal apparel, the horses
and implements of the farmer, the tools and instru-
ments of the artisan, etc. Gradually the beneficent
policy of such laws has been extended. In 1828,
Mr. Benton warmly advocated in the Senate of the
United States the policy of a national homestead law.
The Republic of Texas passed the first Homestead
Act, in 1836. It was the great gift of the infant
Republic of Texas to the world. In 1849, Vermont
followed; and this policy has since been adopted in
OOA' L.A. W.' A CENTURY'S PROGRESS. 361
all but eight States of the Union." By these laws, a Lecture
homestead (under various restrictions as to value) XIII.
for the shelter and protection of the family is now ...a
exempt from execution or judicial sale for debt, un- tºption
less both the husband and the wife shall expressly ""
join in mortgaging it or otherwise expressly sub-
jecting it to the claims of creditors.
And still more recently this policy, as wise as it
is humane, has been adopted by the Congress of the
United States, which has provided that on the sole National
tº . º 7 - Homestead
condition of five years' occupancy by any head of . -
a family, of not exceeding one hundred and sixty
acres of government land, the United States will,
at the end of that period, convey the same in fee
simple absolute, without payment therefor, to such
occupant or his heirs. From 1862, when the act
took effect, to June 30, 1892, 1,049,643 original
entries, covering 138,195,967 acres, have been made
of government lands, of which 55,420,220 acres
have been patented to 423,167 heads of families
or their heirs; and the remainder is being patented
in due course.” Words are not needed to por-
tray this beneficent result. Such legislation, while
“touched with human gentleness and love,” is based
upon the highest wisdom. “It is twice blessed; it
blesseth him that gives and him that takes.” It in-
vests the era which originated and sustains it with a
halo of true glory.
The Domestic Relations. – Undeniably the most
1 Treatise on the Law of Homesteads, by Hon. Seymour D.
Thompson, chap. i.
2 This statement was furnished to me by the General Land Office
at Washington, and is taken from the records of the office.
362 ZA WS AAWD 707/e/SPRUDENCE.
interesting and the most important relation to the
persons immediately concerned, to society, and to
the State, is the relation of husband and wife. Upon
this relation feudalism impressed its essential char-
acter." Woman could not render military service;
and feudalism, as a military system, logically ignored
the wife's legal rights. Hence by a fiction of the
common law, the husband and wife were for most
purposes a single legal person, and that person was
the husband. This fiction of the wife's merger was
characteristic of the common law, and the com-
mon law pressed inexorably the dogma to all of its
logical consequences. Therefore, immediately upon
marriage, the wife's personal property in possession
became absolutely the husband's. He had the com-
plete jus disponendi. It was liable for his debts. By
marriage also he took a sole estate in her lands dur-
ing coverture. She could not alien them ; she could
not dispose of them by will; she could not exercise
any power over them by contract or otherwise. If
the improvidence, misfortune, or dissipation of the
husband compelled the wife to become the “bread-
winner" of the family, her earnings belonged to
him and were subject to the claims of his creditors.
No matter how wealthy she was before marriage,
the legal effect of that event was to impoverish her.
Parliament could have changed this any day, by a
single enactment, but did not. The inadequacy of
the common-law rules to an advanced stage of
society was daily seen, and the unjust operation
of those rules was daily felt. Yet the conservatism
of the profession raised no voice against them. The
Lecture
XIII.
Legal rela-
tion of
husband
and wife
at common
law.
1 See ante Lecture VI."
OUR Z.A. W. A. CE/W7'UR }^*,S' PA’OGA’A.S.S. 363
anomalous manner in which the English law con-
cerning the rights of married women progressively
developed itself and assumed the shape in which
it existed a century ago and down even to our
own day, is a most curious, characteristic, and
suggestive history. While the common law thus
denied the separate existence of the wife, it is
certain that it did not truly reflect her domestic
situation. The English baron was an affectionate .
husband and father. A song of 1596 says, “The
wife of every Englishman is counted blest.”
Whatever else may be charged against feudalism,
it must have great credit for its appreciation of
the dignity and worth of woman, and her elevation
and companionship. Leigh Hunt happily says that
the episode of Francesca stands in the Inferno of
Dante “like a lily in the mouth of Tartarus.” So
the poetic and chivalrous regard for woman and the
tender consideration of mother, wife, daughter, and
sister, is the one “bright consummate flower” which
rejoices the eye as it looks back over the feudal
desert, — a flower that still lives, and whose fra-
grance perennially fills home with all of its happi-
ness and joy. We need have no fear that it will
perish because the disabilities of coverture are re-
moved and woman is given her just legal status
and rights. The only relief which the English and
American jurisprudence gave to the married woman
against the injustice of the common-law doctrine
of merger was the partial relief which the Court of
Chancery afforded; namely, that under certain cir-
cumstances and to a limited extent it would recog-
nize separate property rights in the wife, and to that
Lecture
XIII.
Effect of
feudalism
on the
domestic
relation.
Relief
afforded
by the
Court of
Chancery.
364 ZA WS AAWD 90R/SPRUDENCE.
Lecture
XIII.
Modern
Married
Women’s
Acts.
extent her separate existence. These opposing rules
of law and equity had one hundred years ago grown
up into an exceedingly complicated system, without
plan, full of uncertainty, and fruitful of litigation.
About fifty years ago the legislatures in this
country commenced enacting what are known as
Married Women's Acts. These have been extended
from time to time, and to-day throughout the entire
Union it may be said, speaking generally, that mar-
ried women have been secured in all their just rights
of property." Our example spread at length to Eng-
land, and Parliament passed the Married Women's
Property Acts of 1870 and 1882, based upon the
principles of the American legislation. I may have
dwelt upon this subject at a tedious length. I can-
not, however, but regard legislation which emanci-
pates the wife from the shackles of the common law,
which enlarges her rights far beyond those which
Equity recognized, and places them upon an as-
1 A recent address to the Mississippi Bar Association by its president,
Mr. R. H. Thompson, upon the changes in the organic law of that
State made by the new Constitution of 1890, is printed in the Amer-
ican Law Review. He states that Mississippi was the first State to
give married women enlarged property rights, and that the act of the
Mississippi Legislature passed in 1839 has been followed by nearly
every State in the Union. As Mississippi was the first to remove wo-
man’s property disabilities by statute, so that State is the first to guard
her entire emancipation in this particular by constitutional provision.
Section 94 of the new Constitution deprives the Legislature of all
power to create by law any distinction between the rights of men and
of women to acquire, own, enjoy, and dispose of all kinds of property,
or their right to contract in reference to it. Mr. Thompson adds the
curious statement that the sources of Mississippi's first married women’s
law were the tribal customs of the Chickasaw Indians then residing in
the State, and that its author was a member of the Legislature who
was about to marry a rich widow, and who was himself harassed by
creditors. -
O OVAE Z.A. W.; A. CAEAV7'OWA’ V’.S. AA’OGA’A.S.S. 365
sured statutory basis, – legislation whose consid-
erate beneficence penetrates every household in
the land, and whose blessings will be the most felt
where most needed, - as meriting unqualified ap-
proval, and which the future historian of our laws
will place to the lasting credit of our own era.
Criminal Law and Procedure. — If we turn to the
criminal law of a century ago and compare it with
the law of to-day, the exhibit of progress and im-
provement is yet more striking. Not to mention
the doctrines of forfeiture and attainder, whose hor-
rible injustice mainly fell upon the innocent; the
cruel manner in which for many offences the death
penalty was inflicted, by quartering, and disem-
boweling, and kindred cruelties, – the criminal
law of England, even in the ameliorated state in
which it existed a century ago, had two grave
and fundamental faults: (1) It did not distin-
guish as to the heinousness of different crimes,
but punished with equal severity crimes of essen-
tially different degrees of guilt. (2) Its penal-
ties were severe and cruel. It was a code of
blood. Nothing seemed to be so cheap as hu-
man life. “Better, they said in England, kill a
man than a hare.”" That I may not be suspected
of being too severe a critic of the English criminal
law, I will let English pens portray it. Sir James
Stephen, speaking of the older law, says: “The
“common law was in all ways a most defective
“system. It was incomplete. Its punishments
“were capricious and cruel.” Sir William Black-
1 Emerson, “English Traits.”
* Hist. Crim. Law, vol. i., chap. vi.
Lecture
XIII.
Severity of
the former
criminal
law of
England.
Justice
Stephen's
opinion.
366 M.A WS AAWD 90R/SPRUDEAVCE.
Lecture
XIII.
Sir
William
Black-
stone's
opinion.
stone, commenting on the severity of the English
law at the time he wrote, says: “It is a melancholy
“truth that among the variety of actions which men
“are daily liable to commit, no less than one hun-
“dred and sixty have been declared by act of Parlia-
“ment to be felonies without benefit of clergy; or,
“in other words, to be worthy of instant death.” "
And the Commentator so far departed from his
wonted strain of eulogy as to venture to call atten-
tion to this severity, and modestly “to hint these
“outrageous penalties with decency to those whose
“abilities and stations enable them to apply the
“remedy.”
Sir James Mackintosh in 1819, in moving in Par-
liament for a committee to inquire into the condition
of the criminal law, stated that there were then
“two hundred capital felonies on the statute book.”
Undoubtedly this apparent severity, for the reasons
stated by Sir James Stephen,” is greater than the
real severity, since many of the offences made capi-
tal were of infrequent occurrence; and juries, more-
over, often refused to convict, and persons capitally
convicted for offences of minor degrees of guilt were
usually pardoned on condition of transportation to
the American and afterwards to the Australian colo-
nies. But this learned author admits that, “after
“making all deductions on these grounds, there can
“be no doubt that the legislation of the eighteenth
“century in criminal matters was severe to the
“highest degree, and destitute of any sort of prin-
“ciple or system.”
Sir James
Mackin-
tosh's
State-
ment and
Justice
Stephen's
explana-
tory obser-
vations.
1 4 Blacks. Com., 18. ° 4 Blacks. Com., 5.
* Hist. Crim. Law, vol. i., chap. xiii.
O OVA’ Z.A. W. A. CAEAV7'OW/e}^*.S. AA’OGA’A.S.S. 367
The Edinburgh Review censuring, in 1826, the
injustice of denying prisoners accused of felony
the right to be defended by counsel, declared, “The
“judges and Parliament would have gone on to this
“day, hanging by wholesale for forgeries of bank
“notes, if juries had not become weary of continual
“butchery and resolved to acquit.” And the writer
added these words, – each of which legislators
should “weigh like a diamond’’: “The proper ex-
“ecution of laws must always depend in a great
“measure upon public opinion ; and it is undoubt-
“edly most discreditable to any man intrusted with
“power, when the governed turn around upon their
“governors, and say, ‘Your laws are so cruel, or so
“foolish, we cannot and will not act upon them.’”
Hallam, writing about the year 1818, says: “A
“convicted criminal is at present the stricken deer
“of society, whose disgrace his kindred shrink from
“ participating, and whose memory they strive to
“forget.” "
It is not much over fifty years since prisoners in
England accused of felony have been allowed to be
defended by counsel.” In this country this right
has, in many of the States, long been secured by
constitutional provision. The criminal legislation
of Great Britain for the last fifty years has tended
uniformly in the direction of greater mildness. It
is not necessary to trace the history of the legisla-
tion from the time when Blackstone wrote to the
Criminal Consolidation Acts of 1861. It suffices
for present purposes to state that the only offences
1 Middle Ages, chap. iii., part i.
* 6 and 7 William IV., chap. cxiv.
Lecture
XIII.
Defence by
counsel
denied.
Ameliora-
tions of the
criminal
laws of
England.
368 LA WS AAWD 70A/SPA’UDAEAVCE.
Lecture
XIII.
Compara-
tive mild-
ness of the
criminal
laws in the
United
States.
which are now capitally punished in Great Britain
are treason, murder, piracy with violence, and set-
ting fire to dockyards and arsenals.
In this country we never adopted the extreme
severities of the English statutes. We were early
influenced by the views of Beccaria. Instead of
hanging we condemned the criminal to labor for
a term of years in what we named a penitentiary.
Pennsylvania led the way to this great change
by a provision in her Constitution of 1776." Since
this we have established reformatories for young
offenders. With us the list of capital offences is
still smaller than in Great Britain, having long
been confined to treason, and murder in the first
degree ; that is, to murder where the killing was
intentional, deliberate, and premeditated.
The severity of the English criminal law, in addi-
tion to its injustice to the prisoner, was productive of
two evil consequences of great moment, one of which
operated on juries and the other on the judges.
1 “Section 38. The penal laws shall be reformed by the Legislature
as soon as may be, and punishments made in Some cases less San-
guinary, and in general more proportionate to the crimes.
“Section 39. To deter more effectually from the commission of
crimes, by continued visible punishments of long duration, and to make
sanguinary punishments less necessary, houses Ought to be provided for
punishing by hard labor those who shall be convicted of crimes not
capital, wherein the criminals shall be employed for the benefit of the
public and for reparation of injuries done to private persons; and all
persons at proper times shall be admitted to see the prisoners at their
labor.” Constitution of Pennsylvania of 1776; 2 Poore's Charters
and Constitutions, 1547; Professor (now Justice) Simeon E. Baldwin’s
Address before the Ohio State Bar Association, 1892; Beccaria's
“Crimes and Punishments” was in 1766 translated into French, and
in 1768 into English. A new corrected edition was reprinted in
Philadelphia in 1793, with Voltaire’s “Commentary,” p. 230.
O UAE LA W. A. CAEAVTUR }^*.S. PA’OGAE E.S.S. 369
Where the penalties were disproportionately severe,
the humanity of juries often led them, by what
Blackstone calls “pious perjuries,” to acquit in
cases where the prisoner's guilt was clear. The
same consideration operated with the judges, who
mercifully allowed defendants to escape on such
fine-spun technical objections to indictments, and
frivolous variances, as made criminal trials seem
like a game of chance or a judicial farce. “Such
“scandals,” says Sir James Stephen, “do not seem
“to have been unpopular. Indeed, I have some
“doubt whether they were not popular, as they did
“mitigate, though in an irrational, capricious man-
“ner, the severity of the old criminal law.”
In this country the courts implicitly followed
the English decisions, although the penalties here
were not so severe, and acquittals upon unsubstan-
tial technical points disfigured our administration of
criminal justice until within the last forty or fifty
years quite as much as they did that of England.
The mischievous consequences of this course of ad-
ministration were that it encouraged the commission
of crime, since it was seen that punishment by no
means followed upon guilt, and it also undermined
the public trust in the efficiency of the laws to pro-
* Hist. Crim. Law, vol. i., chap. ix., p. 284. Writing in 1882, Mr.
Serjeant Ballantine, certainly well qualified to speak on the subject,
says: “No one can doubt that the general administration of the law
has during the last half century improved in every branch, and the
present generation would scarcely credit the amount of villainy, fraud,
and oppression which, previous to that period, flourished under its
auspices. The gaols were filled with victims, officers of the sheriff
robbing both creditors and debtors. . . . Immense taxes were im-
posed upon legal proceedings by numerous sinecure offices paid out of
suitors’ pockets.” “Some Experiences of a Barrister's Life,” chap. l.
Lecture
XIII.
Evil effects
of the
undue
severity
of the
criminal
laws.
24
37O LA WS AAWD # UR/SPAE (JDEAVCE.
Lecture
XIII.
Improved
procedure.
Amend-
ments in
the law of
Civil Pro-
cedure.
tect society against evil-doers. It thus became the
parent of lynch law and of vigilance committees,
whereby the community, in supposed self-defence,
at times irregularly and violently took the punish-
ment of offenders into their own hands. Modern
legislation has so improved the mode of criminal
procedure that unsubstantial technicalities in plead-
ings and procedure have almost ceased, - only a
flavor of the old system remains. A great reform
this, which also redounds to the lasting credit of
our own times.
Civil Procedure. — Remedial law in civil proce-
dure, including in the term “remedial,” as here
used, the pleadings, evidence, and mode of pro-
cedure in civil causes from the beginning to the
end, has undergone during the period under re-
view even more radical changes than substantive
law. These changes have occurred within the last
fifty and largely within the last thirty years. The
practical inconvenience and the mischiefs arising
from the division of rights into legal and equitable,
which rights, often conflicting, had to be asserted in
different suits and frequently in different tribunals,
thus necessitating double litigations, with the delays
and costs incident thereto, as well as the unnecessary
uncertainty thus introduced into the administration
of justice, had long been felt, and patiently borne.
The technical forms of common-law actions, and
especially the system of pleadings in such actions,
abounding in arbitrary and artificial rules and sub-
tile distinctions, whereby form was elevated over
substance and the client's case oftentimes depended
full more upon the skill and ingenuity of his coun-
OUAE Z.A. W.' A CE/V7'OW/e Y’.S. AA’OGAE AE.S.S. 37 I
g=-
sel than upon its justice, produced much popular
distrust of the law, and at length much professional
discontent. These and other causes concurring,
efforts were made in England and in this country
toward a reform in the mode of pleading. In
1834 England adopted the “New Rules.” These
were a sort of compromise between the old notions
and the new ones, and failed, as compromises usu-
ally do, to satisfy the profession or to remedy the
mischief.
The subject was earnestly taken hold of in this
country; and in New York, in 1848, a Code of Civil
Procedure, prepared by an able commission, was
adopted. This commission was not only able, but
courageous.' True reformers, they worked under
an inspiration like that which “made the canons
“ of the church of Seville say, ‘Let us build so that
“‘all men hereafter will say that we were mad-
“‘men.” This commission applied a radical remedy.
It abolished, without reservation, all common-law
forms of action and of pleadings. It allowed all
matters, legal and equitable, growing out of the
same transactions, both on the part of the plaintiff
and defendant, to be litigated in one and the same
suit; and it was implied, if not expressed, that
where the legal rule and the equitable rule con-
flicted, the latter should prevail.
The New York Code of Procedure of 1848, either
in substance or principle, spread with rapidity,
and has been adopted in a large majority of the
States and Territories of the Union ; and it is a re-
markable fact that where once adopted it has never
1 See ante Lecture VI., p. 183.
Lecture
XIII.
Codes of
Procedure
in the
United
States.
372 ZA WS AAWD 5'0EISPRUDEA CE.
Lecture
XIII.
English
Judicature
Act based
on the
principles
of the
American
Codes.
Codes of
Criminal
Procedure.
been repealed, or the superseded system restored.
Reforms in procedure were adopted in England in
1852; but in 1873, by the Judicature Act of that
year, changes more radical and important than had
before ever been made by a single enactment, were
effected. That act and its amendments proceeded
upon the principles of the American Codes, and
they have since been followed in many of the Brit-
ish Colonies." It was expressly provided in the
Judicature Act that where the legal rule and the
equitable rule were different, the latter should con-
trol. Equity had here by the express declaration
of Parliament its crowning and final triumph over
the common law.
The New York Code of Criminal Procedure, in
substance or principle, has also been adopted in
many of the States and Territories; and the New
York Penal Code, adopted in that State in 1882,
is already substantially enacted in California and
Dakota. Similar legislation has been seriously pro-
posed in England, and is there one of the leading
questions which is to-day passing through the neces-
sary stages of discussion and examination. It can
have but one eventual issue. These changes in
procedure were violently opposed before they were
made and afterwards; but they were necessary
changes, and time and experience, which are the
best tests, have established their wisdom. The con-
clusive proof of this is the fact, above mentioned,
that when made they always come to stay.
Codification. — One related question of great prac-
* Ante Lecture VI, p. 183, and note on pp. 183–186; Lecture IX.,
p. 260, note.
OO//º AA W: A CAE/VZTOWAE P'S AA’OGA’A.S.S. 373.
tical interest and moment still remains to a large
extent undecided, and that is as to the wisdom of
undertaking a systematic restatement of the body of
our statutory and case law. This subject is actively
engaging the best minds of the profession in both
countries. I have in the previous lectures of this
course expressed my general views upon it. In
the sense that a code “aims at nothing more than
“the reduction to a definite and systematic shape
“of the results obtained and sanctioned by the ex-
“perience of many centuries,” as that experience
is embodied in statutes, in the law reports, and
in the writings of the sages and masters of the
law, - in this practical sense, within these con-
servative limits, a code in England and a code
in each of the United States is, I think, mani-
fest destiny. I venture this prediction, because
this is the only remedy which it is possible to sug-
gest to make the overgrown body of our law, I will
not say convenient or symmetrical, but reasonably
certain, public, and accessible. Such a course has
been found not simply desirable, but necessary, in
the developed stage of every other jural system ;
and I am unable to perceive how we can perma-
nently avoid it, whatever our timidity, and however
reluctant we may be to enter upon it.
The Law of Evidence. — Many emendations in the
law of evidence have been made within the last forty-
five years. The principal change is that by which
interest in a witness no longer disqualifies him to
testify, and that far greater change, by which par-
ties to the record are competent to testify in all civil
suits, and by which also in some of the States, and
Lecture
XIII.
Codifi-
cation
within
certain
limits in-
creasingly
necessary.
Reforms in
the law of
evidence.
374 LA WS AAWD 70RISPRUDENCE.
in all of the courts of the United States," the defend-
ant is competent, at his own request, to give evi-
dence in his own behalf, in prosecutions for crimes.
In this kind of legislation England led the way.”
Bentham early in this century opened a vigorous
fire upon the absurdity of the common-law rules of
evidence on the competency of witnesses, which, as
he maintained, were framed to exclude rather than
to admit the light.” He was regarded as a vision-
ary, and his criticisms were slow in ripening into
practical results. But in 1843, by Lord Denman's
Act," interest in common-law actions, with a few
exceptions, ceased to disqualify; and in 1846 and
1851,” by Lord Brougham's Acts, parties in civil
actions, with a few enumerated exceptions, were
made competent and compellable to testify. The
wisdom of this legislation, especially in respect of
Lecture
XIII.
Denman's
and
Brough-
am's Acts
relating
to com-
petency of
witnesses
and par-
ties.
1 Act of March 16, 1878; 20 Sts. 30.
* The earliest act of this kind in this country was passed by the
Legislature of Connecticut in 1848. It is very broad and sweeping in
its provisions. It is in these words: “No person shall be disqualified
as a witness in any suit or proceeding at law, or in equity, by reason
of his interest in the event of the same, as a party or otherwise, or by
reason of his conviction of a crime ; but such interest or conviction
may be shown for the purpose of affecting his credit.” (Revised
Statutes of Connecticut, 1849, p. 86, § 141. In the margin of the page
the time of the passage of the law is given as 1848.) This act was
drafted and its enactment secured by the Hon. Charles J. McCurdy,
a distinguished lawyer and the Lieutenant-Governor of that State. A
member of Judge McCurdy’s family, having been present at the de-
livery of this lecture at New Haven in 1892, called my attention to
the above fact, claiming, and justly, for this act the credit of leading
in this country the way to such legislation. But he was mistaken in
his claim that it preceded similar legislation in England, although its
provisions are an improvement on the contemporary enactments of
the like kind in that country.
8 1 EV. 6. 4 6 & 7 Vic.., chap. 85.
* 14 & 15 Vic, chap. 99; ante Lecture XII.
O UAE Z.A. W.' A CE/WTURY'S PA’OGA2E.S.S. 375
civil suits, has been vindicated so fully by expe-
rience that I think scarcely a single objector now
remains. How much these changes in procedure
and evidence have simplified and improved the ad-
ministration of justice is known to every lawyer.
These, too, belong to the credit of our era.
Libel ; Growth of Corporations and of Corporate
Litigation. — It is impossible within the compass
of these lectures to notice all of even the more
important improvements in our law which have
been made within the century. I must pass over
with bare mention the Fox Libel Act of 1792 and
the subsequent legislation on that subject in both
countries. Truth is with us a justification, both in
civil and criminal cases, if it is written with good
motives and for justifiable ends, whereof the jury
are the judges."
1 Professor, now Mr. Justice Baldwin, succinctly states the manner
in which we have dealt with this important subject : “The law of
libel, in any government, is one of the surest tests by which to esti-
mate its hold upon the people. The United States was the first to
renounce, for its rulers, the protection of this law. When the decem-
virs were framing the Twelve Tables of Rome, few as were the subjects
they thought it important to cover in their code, they were careful to
make libel against the State a capital offence; for they were the State,
and they were turning a republic into a despotism. When the people
of England were beginning to demand a greater share in her gov-
ernment, it was the law of libel to which the crown resorted for its
surest weapon of defence, and it was the pride of the English bar that,
in criminal cases, they nullified it by the aid of the jury. With us,
in the United States, the law of libel is unknown, because the Federal
government has no common law, and because the only statute ever
passed by Congress to replace it on this subject was swept away in
the first change of administration, and, indeed, in no small part was
the cause of that change of administration ; while in our State gov-
ernments we have almost everywhere come to the position that, both
in civil and criminal cases, truth is a justification, unless actual malice
is proved.” “Address before the Ohio Bar Association,” 1892.
Lecture
XIII.
Libel laws.
376 LA WS AAWD 70A:/SPRUDENCE.
Lecture
XIII.
Enormous
growth of
corporate
litigation.
Illustra-
tions.
One important subject, however, I must briefly
refer to. It is the growth of corporations or the
use of aggregated capital by corporate associations.
The results of an examination of the comparative
extent of corporate and private litigation surprised
me. I found that in a recent volume of the reports
of the Supreme Court of the United States sixty-
one cases were reported, of which twenty-eight were
between natural persons on both sides; twenty-
seven were cases in which private corporations and
six cases in which public corporations were con-
cerned. In May, 1879, Chief-Justice Waite wrote
me that the court had at the recent term disposed
of three hundred and seventy-nine causes, of which
ninety-one related to the United States, one hun-
dred and eighty-three were corporation cases, and
only one hundred and five were between private in-
dividuals. To ascertain whether the amount of cor-
porate litigation in the Supreme Court was abnormal,
I personally examined three volumes of the New
York Court of Appeals Reports, – that is, volumes
lxxiii., lxxiv., and cv., - with the following result:
civil cases reported, four hundred and twenty-four ;
of which two hundred and thirty-four were between
private persons, and one hundred and ninety were
cases in which corporations, public or private, were
concerned on one side or the other. I then examined
volume i., Johnson's Reports, published in 1806. I
found one hundred and thirty cases reported, of
which only twenty related to any sort of corpora-
tions or involved corporation law.
This change in the character of the litigation
ought not perhaps to surprise us, since we know
OUR Z.A. W. A. CAEAVTOWA’ V’.S. AA’OGA’A.S.S. 377
s=–
the business of banking, of manufacturing, of in-
surance, of railway and water transportation, of
telegraphy, and of nearly every branch of in-
dustry requiring considerable capital, prefers the
safe and facile form of corporate organization
and ownership to the inconvenience and liabilities
of the copartnership or even joint stock relation.
How wisely and satisfactorily to govern our popu-
lous public and municipal corporations is yet an
unsolved problem." The facts here brought to
view, however, present to statesmen and lawyers
questions in political economy and practical legis-
lation of exceeding interest and difficulty. They
are not, I am persuaded, insoluble, but the future
must considerately deal with them in the light of
time and experience, which alone can supply the
needed wisdom. -
American Law Reports and Development of the Lit-
erature of the Law in this Country. — In the Edin-
burgh Review in 1820 an eminent man, in an
article in which he kindly advised the Americans
not to grow vain and ambitious, said: “During the
“thirty or forty years of their independence, they
“have done absolutely nothing for the sciences, for
“the arts, for literature, for politics or political econ-
“omy. . . . In the four quarters of the globe,” he
tauntingly inquired, “who reads an American
book 3 "
This was, even at that time, unjust, because un-
true. Franklin had made the discovery which in
its application by Morse and other American inven-
tors has since resulted in the modern telegraph.
1 Dillon, “Law of Municipal Corporations,” chap. i.
Tecture
|XIII.
*
Public and
municipal
corpora-
tions.
Contribu-
tions of
America.
to the
Sciences,
arts, and
literature.
378 ZA WS AAWD 70A/SPRUDEAVCE.
Lecture
YIII.
American
Law and
Chancery
Reports.
---------4
Whitney had invented the cotton gin. Fulton had
successfully introduced steam navigation. We had
always supposed that the statesmen who founded
our free governments and embodied their basis
principles in our State and Federal Constitutions
had done something worthy of respectful regard.
Gladstone's well-known, though historically inex-
act, eulogium is that “the American Constitution
“is the most wonderful work ever struck off at a
“given time by the brain and purpose of man.”
In general literature and in the literature of the
law, our development had in 1820 just fairly begun.
James Russell Lowell at the Authors' Readings in
New York, in a review of American literature,
said that when he was a boy, sixty years ago, there
were but two American writers who could have
supported themselves with their pens, - Irving
and Cooper. Since then our literature has had
an expansion which is truly marvellous. I fancy
that, in this year of grace, 1892, no one repeats the
inquiry, “Who reads an American book? What
“has America done for the sciences and the
“arts 3 '' t
It more immediately concerns us to see what
America has done for the law. At the beginning
of this century, Dallas had just commenced the
publication of the Reports of the Supreme Court.
Reports of some of the States soon followed.
Kirby's Reports and Swift's Digest were the early
contributions of Connecticut. In 1817 Chancellor
1 One of the principles of that Constitution, Mr. Gladstone, in
February, 1893, avowed in Parliament, in introducing his so-called
Home Rule measure, he had adopted in the proposed act.
O Ú/ú Z.A. W.' A CE/V7'UA' V’.S. AA’OGAEA.S.S. 379
De Saussure, of South Carolina, published the first
volume of Equity Reports which ever appeared in
this country. Kent was appointed a judge of the
Supreme Court of New York in 1798, and Chan-
cellor in 1814. He held the latter office until 1823,
during which period his seven volumes of Chancery
Reports were given to the world. As a judge and
author, he will not suffer when compared with the
greatest names which have adorned the English law.
Higher praise it is not possible to give. When he
had reached the constitutional limit of sixty years,
at which he could no longer hold judicial office, he
retired to private life and gave himself to the prep-
aration of his Commentaries on American Law,
which appeared from 1826 to 1830, and which he
publicly acknowledged owed their origin to the lib-
erality of the trustees of Columbia College. To be
the Kent Professor of Law in this University is
an honor, sir [addressing Mr. Phelps], which, worn
by you, pales not its effectual light, even by the
side of the great public honors which you have so
worthily borne. The American Bar and people ven-
Lecture
XIII.
Chancel-
lor Kent's
labors as a
judge and
author.
erate the name and character of Chancellor Kent. .
Simple as a child in his tastes and habits through-
out his tranquil and useful life; more than any
other judge the creator of the equity system of this
country; the author of Commentaries which, in ac-
curacy and learning, in elegance, purity, and vigor
of style, rival those of Sir William Blackstone, his
name is admired, his writings prized, and his judg-
ments at law and in equity respected in every
quarter of the globe (and nowhere more than in
England), wherever in its widening conquest the
38O M.A WS AAWD jº/R/SPA’UDEAVCE.
Lecture
XIII.
Marshall’s
judg-
ments.
Mr. Jus-
tice Story
and his
works.
Number
of the law
reports.
English language, which is the language of free-
dom, has carried the English law."
The development of our jurisprudence, National
and State, progressed with astonishing rapidity.
Marshall's judgments on the Federal Constitution
which fixed its outlines and established its prin-
ciples, and which are among the greatest and most
Original productions of the human reason, were pro-
nounced between 1801 and 1835.” In 1832 Mr.
Justice Story published his first legal work, and
until his death in 1845 his pen was never idle.
By reason of the greater variety of his labors he
obtained, perhaps, a wider transatlantic reputation
than Chancellor Kent, or any other American jurist
or author. I cannot, of course, refer to our many
other law writers of merit, not even to the most
eminent. I endeavored not long since to ascertain
the number of American elementary treatises on
the law, but did not succeed. I found that down
to 1881 the judicial reports in England numbered
2,944 volumes; that in this country down to
December 31, 1885, the number exceeded that in
England, and was as follows: Federal Reports,
409; miscellaneous reports, 203; American State
Reports, 3,186, - making in all 3,798.” And this
mostly within the last fifty years If this multi-
plication continues, and no relief shall come, may
1 “If,” says the late Mr. Justice Stephen, “we except the Com-
mentaries of Chancellor Kent, which were suggested by Blackstone, I
should doubt whether any work intended to describe the whole of the
law of any country possessed anything like the same merits” as Black-
stone's work. “History of the Criminal Law of England,” vol. ii.,
chap. xxi., p. 215.
* See ante Lecture V., p. 165. * See ante Lecture X, p.266, note.
OOA’ CA. W. A. CAE/V2'OZe P’.S. AA’OGA’A.S.S. 381
we not stop, and in anticipation heave a sigh of pity
for the judges and lawyers of a century hence?
The first impulse of every just man is to satisfy
his just obligations. So it should be with States.
And it is a satisfaction to us all to know that
“in the august accounting of nations "America is
rapidly discharging, in law and literature, in the
sciences and arts, her great indebtedness to Europe,
and especially to England, and that America may
not unreasonably expect a period to arrive when, in
the accounting, the Old World may become the
acknowledged debtor of the new."
A few reflections suggested by this retrospect
may have some value. The evolution of our law
which has been sketched in the course of these
lectures impresses me with the conviction of the
general truths which underlie the leading doctrines
of Savigny and the historical jurists; namely, that
law is largely the outcome of all of the past condi-
tions, circumstances, and customs of a people; that
it ordinarily originates in or is introduced by cus-
tom (using this word in the broad sense of including
judiciary law), and is supplemented by legislation,
direct or oblique, when, and in general only when,
the law is otherwise inadequate to meet difficult and
complex or new situations and exigencies. This
view recognizes the fact that the life of a nation
or people flows ever on, though its channels may
be invisible; that its workings are unseen until
they show themselves in usages and acts which
are its external and superficial manifestations, and
1 See ante Lecture VI., p. 186, where an extract from Webster's
finished eulogy on Justice Story is given.
Lecture
XIII.
America.
repaying
her debt
to the Old
Country.
Reflec-
tions.
Truths in
Savigny’s
conception
of law.
382 ZA WS AAWD 3'UR/SPRUDEAVCE.
Lecture
XIII.
Truths in
Austin’s
conception
of law.
Austin's
conception
defective.
The high-
est ideal
of law
realized
in the
American
Consti-
tutions.
which we are too prone to consider as detached
and unrelated: whereas, if we enlarge our view and
penetrate beyond the surface to the hidden springs
and causes of human action, we shall find that in a
deep and real sense there is in the life of a nation
no past, no present, and no future, — since the past,
the present, and the future form one unbroken
chain which binds the people thereof as truly to
that which is to come as it does to that which is
already gone.
This review, and particularly the century’s retro-
spect we have just made, also exemplifies the truth
that lies in the Austinian conception that law is
the direct creation or command of the sovereign,
enforced or enforceable by the State. But it also
makes plain that Austin's doctrine that all law pro-
ceeds from the sovereign, and therefore is binding
alone upon the subject, is defective in that it fails
to realize that law has not reached its full develop-
ment until it attains complete supremacy by bind-
ing alike the sovereign and the subject. This ma-
tured, and it is not extravagant to say, sublime
conception — the great gift of America to the
world — has only been made a reality by the
American device of written constitutions, which
are the supreme law of the land, since their pro-
visions are obligatory both upon the State and
upon those subjected to its rule, and equally en-
forceable against both, and therefore law in the
strictest sense of the term."
1 See ante Lecture VII., p. 197; Lightwood, “Nature of Positive
Law,” Macmillan & Co., London, 1883, chap. xiii., where Ihering's view
(“Der Zweck im Recht,” pp. 324, 344, 346, 371) is clearly expounded.
OUR LA W: A CENTURY'S FORECAST: 383
This review likewise shows that under existing
conditions legislation is the usual and in many
cases the only effective means of making the
changes and additions necessary to conform the
laws to the changed sentiments and needs of people.
If you will run your eyes over the great and
beneficent improvements and reforms in the mode
of procedure and in substantive law to which I
have referred, you will see not only that they have
all been wrought by legislation, but are of such a
nature that they could not have been accomplished
in any other way. Nor is this result peculiar to the
English and American systems. Roman law and
Continental law exhibit the same phenomena of the
gradual evolution and amendment of the laws by
the concurrent forces of jurisprudence and legisla-
tion, and of the respective spheres of each. Accord-
ingly, Won Ihering observes that “all thorough
“reforms in the mode of procedure and of positive
“law may be traced back to legislation.”
The Century to Come. — Having looked at the
century that is gone, how natural to turn our long-
ing eyes — though dim and purblind — to the
future. The folly of prophesying has passed into
an adage. James Russell Lowell wisely as well as
wittily says, “Don’t prophesy unless you know ; ”
but when the time of fulfilment is laid one hun-
dred years off, one is safe at least from being
overwhelmed with confusion in his own lifetime.
Unadmonished and undeterred, I venture a timid
forecast of some of the changes which our laws
1 Ihering, “Struggle for Law " (Lalor’s translation), p. 9.
Lecture
XIII.
Increasing
energy of
legislative
action and
the rea-
sons there-
for.
Forecast of
changes in
our laws.
384 M.A WS AAWD # CVRISPRUDEAVCE.
Lecture
XIII.
Predicted
changes
in inter-
national
law.
and jurisprudence will witness within the next
century.
In International Law. — I predict that the ra-
tional practice of settling disputes between nations
by arbitration, so successfully applied in recent
years, will become general; that wars, the oppro-
brium of Christian civilization, if they shall not
wholly cease (which is hardly to be expected),
will be comparatively infrequent; and that they
will no longer be regarded as making the inhabi-
tants of each country enemies of the other, but only
as a conflict between the States concerned in their
organized capacity, in which private property on
land and sea shall no longer be subject to capture,
confiscation, or destruction, and the cruelty of what
are called the laws of war will be otherwise greatly
ameliorated.”
* As this volume is passing through the press, a cable despatch,
August 15, 1893, from Paris, thus announces the arbitrators’ decision
in the Bering Sea Seal Controversy between Great Britain and the
TJnited States: “At eleven o’clock the arbitrators reassembled in the
room in the Foreign Office in which the public sessions of the tribu-
nal had been held. Baron de Courcel, the president of the tribunal,
then delivered to the agents of the United States and Great Britain
original copies of the decision signed by all the arbitrators; and he,
thereupon, addressed the arbitrators, saying that he recognized the
great value of arbitration as a cause of peace between nations. He
expressed the opinion that every international arbitration renders
war less probable, and said he looked forward to the time in the near
future when it would be the rule and not the exception to settle inter-
national differences in this way. Senator John T. Morgan, one of the
American arbitrators, and Lord Hannen, one of the arbitrators ap-
pointed by Great Britain, responded to Baron de Courcel, declaring
that they reciprocated the sentiments expressed by him, and recog-
nized the hospitality extended by France to the arbitrators. The
Session terminated amid mutual congratulations and expressions
of good feeling.”
ovº LAW. A CENTURY'S FORECAS7. 385
I predict that the existing apathy of the public
conscience will be aroused, and that the avarice
of publishers will not be able to continue the pres-
ent system of literary piracy, since all civilized na-
tions will recognize the principle that an author has
by the highest of all titles — namely, that of crea-
tion — a right of property in his work, which
treaties and legislation will protect on the basis
of reciprocity.
I predict (in view of the universality and increas-
ing freedom and intimacy of commercial intercourse
between nations) that substantial unity in the va-
rious departments of mercantile and maritime law
on the great subjects of Bills of Exchange, Marine
Contracts, Marine Insurance, Marine Torts, etc., will
replace the diversity and conflict which now exist.
In Municipal Law. — In municipal law I predict
important changes of substance and form. Our real
property law is still poisoned by the feudal taint.
It is artificial, complicated, and excessively techni-
cal, - quite as much so as the almost extinct system
of common-law pleadings. The remedy must be
radical. In fact, the division of property into real
and personal, whereby each class possesses distinct
qualities and is governed by different rules as to
acquisition, mode of transfer, devolution, etc., is
largely, although not wholly, artificial; and so
far as it is artificial, it must be abrogated, and
the law of real and personal property made, as far
as practicable, substantially uniform, and thereby
simplified. Substantive changes only will meet the
exigencies of the situation."
1 See ante Lecture VIII., pp. 237–241.
Lecture
XIII.
Predicted
changes in
the law of
real and
personal
property.
25
386 £A WS AAWD 9°C/R/SPAC/DEAVCE.
Lecture
XIII.
Future
union of
legal and
equitable
rights and
remedies.
Systematic
restate-
ment of
our laws
the work
of the
future.
In no other system of jurisprudence do we wit-
ness the competing and conflicting rules which mark
our division of rights and remedies into legal and
equitable. The separation of what we call equity
from law was originally accidental,—or at any rate
was unnecessary; and the development of an inde-
pendent system of equitable rights and remedies is
anomalous, and rests upon no principle. The con-
tinued existence of these two sets of rights and
remedies is not only unnecessary, but its inevita-
ble effect is to make confusion and conflict. The
existing diversity of rights and remedies must
disappear, and be replaced by a uniform system
of rights as well as remedies, – what we call a
legal right ceasing to exist if it is in conflict
with what we now distinguish as the equitable
right."
And generally the forecast may be ventured that
while the law will in its development undoubtedly
keep pace with the changing wants of society, yet
the work of jurists and legislators during the next
century will be pre-eminently the work of system-
atic restatement, probably in sections, of the body
of our jurisprudence. Call it a code, or what you
will, this work must be done. If not done from
choice, the inexorable logic of necessity will compel
its performance. -
It seems to me to be reasonably clear that in
these and many other respects our laws and juris-
prudence are likely to undergo essential changes.
Scientific jurisprudence, already a necessity, will
play a more important part in the future of our
1 Ante Lecture VIII., pp. 234, 285.
OUR /A W. A. CAEAVTOWA’ Y’.S. AſOA&A. C.A.ST. 387
law than it has in the past. It is a mistake to
suppose that the jurist, any more than the legis-
lator, must look only to the past. He must also
study the present, and bring himself into actual
contact with the existing conditions of society, its
sentiments, its moral convictions, and its actual
needs. And the work must be done with all the
aids that the learning and experience of the past
affords, and under the inspiration of a higher ideal
than the existing state of our law supplies.
This work, as important, as noble, as any that
can engage the attention of men, will fall to the
profession to do, since it cannot be done by others.
It rests therefore upon the profession as a duty. It
will not be performed by men whose sun, like mine,
has passed the zenith, and whose faces are already
turned to follow its setting. I address young men,
men who are hailing the advance of their sun up the
eastern sky, and who are full of the hopes, the aspi-
rations, the generous illusions, the sublime audacity,
which give to that interesting stage of life, when
animated by high resolves, a present charm and a
prophetic splendor all its own. No single laborer,
unassisted, can do much in a work so vast. It is,
indeed, a work which must be done more or less in
compartments, and it is given to every earnest and
devoted lawyer to do in his day and generation his
utmost part, however humble. And mayhap some
young man hears me to-day, gifted beyond the
common lot, with an eye couched to that wider and
higher sweep of “the gladsome light” which takes
in all the constructive possibilities of the rich but
scattered materials of our laws, and with hand and
Lecture
XIII.
Nobility
and diffi-
culties of
the work
of improv-
ing our
laws and
jurispru-
dence.
388 LA WS AAWD jº/RISPRUDEAVCE.
Lecture
XIII.
*-
brain which shall tire not, day nor night, in the
arduous work; — mayhap some such man will be
so fortunate as to leave on the massive, the im-
posing, the ever-advancing but ever-uncompleted
structure of our jurisprudence some visible imprint,
some lasting expression, some embodied memorial
of his genius and his labors. If the foregoing
retrospect of a century’s progress in our laws
illustrates any one thing, it is that in the domain
of the law, as elsewhere, -
“There are great truths that pitch their shining tents
Outside our walls, and though but dimly seen
In the gray dawn, they will be manifest
When the light widens into perfect day.” 1
Conclusion. — And here the STORRS LECTUREs for
the current year come to an end. It has been a sin-
cere pleasure to me to give them. I have scattered
such poor seed as I had in hand, in the hope
that, as sometimes happens, even a seedling may
chance to spring up into something of worth.
The teacher must sow in faith, and in faith the stu-
dent must hear, and the lawyer must labor; but
the latter will miss his highest, his noblest end and
aim, if he degrades his great calling into a trade,
a mere means of livelihood. Such happily are
not the influences that in the past have gone forth
from this famous university, which, as I speak
these parting words, enjoys the rare distinction of
having two of its sons worthily holding and adorn-
ing seats upon the Supreme Bench of the United
Inspiring
influences
of Yale
Univer-
sity.
A pre-emi-
nent dis-
tinction.
1 Longfellow, “Michael Angelo.”
ovº LA W: A CENTURY's Forecasz. 389
States, honoring it and honoring their alma mater."
Young gentlemen, with tender regret, full of faith
and hope, and entreating you as you shall go
hence to the stern duties of your profession to
wear ever “ the white flower of a blameless life,”
I take my leave of you with the benison that
of old was bestowed upon the youthful knight:
BE BRAVE, LOYAL, AND SUCCESSFUL
1 Justices Brewer and Brown. Since then, Mr. Justice Shiras has
been added, so that Yale University has the unique and pre-eminent
distinction of having three of the nine judges who now (1893) consti-
tute the bench of the Supreme Court.
Lecture
XIII.
TABLE OF CASES CITED.
PAGE
Attorney-General v. Forster (10 Vesey, 335, 342) . . . . . 280
Ayers, In re (123 U. S. 443) . . . . . . . . . . . . 228
Bay v. Coddington (5 Johns. Ch. 54; 20 Johns, 637) . . . . 246
Bayard v. Singleton (1 Martin, Nor. Car. 48) . . . . . . 200
Booreman's Case (March Rep. 177) . . . . . . . . . . 90
Bowditch v. Boston (101 U. S. 16) . . . . . . . . . . . 130
Bowman v. Middleton (1 Bay, S. C. 252) . . . . . . . . 200
Case of the Judges (4 Call, Va. 135) . . . . . . . . . 200
Chicago, &c. Ry. Co. v. Minnesota (134 U. S. 418) . . . . . 32
Commonwealth v. Caton (4 Call, Va. 5) . . . . . . . . 200
Davis v. Duke of Marlborough (2 Swanst. 113, 162) . . . . 230
v. Lord Strathmore (16 Vesey, 419, 429) . . . . . . 230
Gee v. Pritchard (2 Swanst. 402,414) . . . . . . . . . 230
Hallett's Estate, Re (L. R. 13 Ch. Div. 696, 710) tº º 6
Hart's Case (Rex v. Gray's Inn, 1 Doug. 353, 354) . . . . 39, 90
Hays v. Bell (16 Mo. 496) . . . . . . . . . . . . . 126
Holmes v. Walton (New Jersey) . . . . . . . . . . . 200
Houghtaling v. Ball (19 Mo. 84) . . . . . . . . . . . 126
Kamper v. Hawkins (1 Va. Cas. 20). . . . . . . . . . 200
Kilbourn v. Thompson (103 U. S. 168) . . . . . . . . . 227
Lahr v. Metropolitan El. Ry. Co. (104 N. Y. 268) . . . . .
Legal Tender Cases (8 Wall. 603; 11 Wall. 682; 12 Wall. 457;
110 U. S. 421) . . . . . . . . . . . . . . . 214
290
392 7TA A/LA2 OA’ CA.S.A.S. CZ 7TAZZO.
PAGE
Lord Rosslyn v. Jodrell (4 Campb. 303; 1 Starkie Rep. 148) . . 90
Louisville & N. R. R. Co. v. Woodson (134 U. S. 614) . . . . 130
McKown v. Craig (39 Mo. 156) . . . . . . . . . . . 126
Marbury v. Madison (1 Cranch, 137) . . . . . . . . 200, 227
Marshall v. Hubbard (117 U. S. 415) . . . . . . . . . 130
Maundrell v. Maundrell (10 Vesey, 246, 259) . . . . . . . 230
May v. Harvey (13 East, 197) . . . . . . . . . . . . 90
Munn v. Illinois (94 U. S. 113) . . . . . . . . . . . . 214
Murray v. McCarty (2 Munf. Va. 393) . . . . . . . . . 351
Ogden v. Witherspoon (2 Haywood, Nor. Car. 227) . . . . 200
Pleasants v. Fant (22 Wall. 116) . . . . . . . . . . . 130
Poindexter v. Greenhow (114 U. S. 270) . . . . . . . . 228
Railroad Co. v. National Bank (102 U. S. 14) . . . . . . 245
Rakestraw v. Brewer (Abridg. Cases in Equity, 162) . . . . 90
Rex v. Bembridge (3 Doug. 327, 332) . . . . . . . . 182, 278
Rex v. Gray's Inn (Hart's Case, 1 Doug. 353, 354) . . . . 39, 90
Rex v. Lincoln's Inn (Wooller's Case, 4 Barn. & Cress. 855) . 90
Schofield v. Chicago, &c. R. R. Co. (114 U. S. 615) . . . . . 130
Slaughter-House Cases (16 Wall. 36) . . . . . . 208
State v. Parkhurst (4 Halst. N. J. Law, 427, 444) . . . . . 200
Story's case (90 N. Y. 122). . . . . . . . . . . 291
Stowel v. Lord Zouch (1 Plowd. 357) . . . . . . . . . 23
Swift v. Tyson (16 Peters, 1) . . . . . . . . . . . . 246
Townshend's Case (T. Raymond, 69) . . . . . . . . . 90
Trevett v. Weeden (Rhode Island) . . . . . . . . . . 200
United States v. Lee (106 U. S. 196). . . . . . . 198, 214, 227
v. Schurz (102 U. S. 378). . . . . . . . . . . . 201
Williams's Case (Wharton's State Trials, 652) . . . . . . 351
Wooller's Case (4 Barn. & Cress. 855) . . . . . . . . . 90
AUTHORS CITED.
PAGE
A Generation of Judges, by their Reporter . . . 92, 128, 257, 288
Alison : History of Europe . . . . . . . . . . . . 210
American Jurist . . . . . . . . . . . . . . . . 241
American Law Review . . . . . . . . . . . . 120, 352, 364
Amos : The Science of Law . . . . . . . . 7, 124, 177, 343
Arnold : History of Rhode Island . . . . . . . . . . 200
Austin: Jurisprudence (Campbell's) . . . 10, 269, 270, 286, 291, 309
— Province of Jurisprudence determined . . . . . . . 6
Bacon : Advancement of Learning . . . . . . . . . 30, 138
Essays . . . . . . . . . . . . . . . . . . 225
— Works of (Montagu's Edition) . . . . . 117, 260, 274, 294
Baldwin, Simeon E. : Address before Ohio Bar Association . . 289,
351, 368, 375
Ballantine: Some Experiences of a Barrister's Life . . 73,224, 369
Bancroft: History of the Constitution . . . . . . . . . 200
Introduction to Hunt's Life of Livingston . . . . . . 338
Beccaria : Crimes and Punishments . . . . . . . . . . 368
Bentham's Works . . . . . 175, 271, 318, 327, 336, 338, 339, 374
Blackburn on Sale . . . . . . . . . . . . . . . 236
Blackstone : Commentaries 10, 43, 45, 59, 63, 91, 94, 232, 291, 310,
322, 366
Boswell: Life of Dr. Johnson . . . . . . . . . . . 41, 97
Boutmy, Emile: Studies in Constitutional Law . . . 146, 147, 211
The English Constitution (Eaden's Translation) 118, 164, 305, 306
Bradley, Mr. Justice : Manuscript letter . . . . . . . . 22
Brougham: Speeches (Black's Edition) . . . . . . . . . 330
The British Constitution . . . . . . . . . . . 31
Brown : Life of Rufus Choate . . . . . . . . . . . 46
Bryce: American Commonwealth . . . . . . . 200, 206, 207
Burke's Works . . . . . . . 31, 150, 207, 208, 323, 324, 349
Byron : Childe Harold . . . . . . . . . . . . . . 49
394. A C/7 HOA'S CZ 7TEZO.
PAGE
Campbell: Lives of the Chief-Justices . . . . . . . . . .11
Carson: History Supreme Court of United States . . . . . 201
Carter, James C. : Address before American Bar Association . 13
Chase, Chief-Justice: Introduction to the Livingston Codes and
Reports. e e º e ºs tº e º te gº 338
Chaucer: Canterbury Tales . . . . . . . . 38, 55
Choate, Rufus : Addresses and Orations . . . . . . 198, 200
Clark: Bibliotheca Legum . . . . . . . . . . 79
Clark: Practical Jurisprudence: A Comment on Austin . . 11, 232,
259, 270, 286, 347
Coke: Reports, Preface . . . . . 37, 50, 59, 70, 74, 79, 133, 192
Coleridge, Samuel Taylor: Church and State . . . . . . 296
Translation, “The Piccolomini,” . . . . . . . . . 199
Cooley: Constitutional Limitations . . . . . . . . . . 200
Crabb : History of English Law . . . . . . . . . . . 74
Daniels, W. T. S. : The History and Origin of the Law Reports 276
Dicey : The Law of the Constitution . 25, 117, 202, 214, 224, 225, 226
Dickens : Martin Chuzzlewit . & © tº e º 'º e 103
Digby : History of the Law of Real Property . . . . 158, 291, 310
Dillon: Commentaries on the Law of Municipal Corporations . 119,
163,203, 322, 343, 377
Douthwaite: Article on “Gray’s Inn” in Green Bag Magazine . 61
Gray’s Inn; Its History and Associations . . . 48, 61, 78, 94
Dugdale, Sir William : Origines Juridiciales . . . . . . . 67
Dumont : Editions of Bentham's Works . . . . . 318, 327, 336
Durand and Terrel: Pref. to Prof. Lioy’s “Philosophie du Droit’” 84
Edinburgh Review . . . . . . . . . . . . . 367, 377
Ellis: Original Letters Illustrative of English History . . . 118
Emerson: English Traits * * * * * * . . . 365
Encyclopædia Britannica. . . . . . . . . . . 51, 53, 58, 94
Field, David Dudley: American Progress in Jurisprudence . 352
Finlason: Introduction to Reeves’ History of the Common Law 159
Forster : Life of Goldsmith . . . . . . . . . . . . . . 99
Fortescue : De Laudibus Legum Angliae . 45, 49, 50, 54, 63, 74, 117,
125, 172
Governance of England (Plummer's Edition) . . . . . 66
Foss : Judges of England . . . 59, 60, 61, 62,63, 66, 67, 70, 94, 111
Freeman : Chief Periods of European History . . . . . . 345
Growth of the English Constitution . . 29, 157, 161,230, 302
— Norman Conquest . . . . . . . . . . . . . . 158
A C/7 HOA'S C/7ZZO. 395
PAGE
Gardiner: History of England . . . . . . . . . . . 80
Gibbon: Autobiography . . . . . . . . . . . . 95, 96
Glasson: Elements du Droit Français . . . . . . . . . 120
Goldsmith : English Bar; or, Guide to the Inns of Court. . . 44
Goldsmith, Oliver: Citizen of the World . . . . . . . . 100
Green Bag Magazine . . . . . . . . . . . . . . 61, 250
Greenleaf on Evidence . . . . . . . . . . . . . . 279
Guizot: History of Civilization in Europe . . . . . . . 154, 158
Hale: Analysis of the Civil Part of the Law . . . . . . . 808
History of the Common Law . . . . . . . 20, 172, 232
Hallam : Middle Ages . . . . . . . . . . . 121, 164, 367
Hammond: Edition of Blackstone's Commentaries 10, 24, 63, 230,
232, 291, 298, 308
— Edition of Sandars's Justinian . . . . . . . . . . 808
On Law Schools . . . . . . . . . . . . . . 81
Hardcastle, Hon. Mrs. : Life of John, Lord Campbell . . . 54, 73
Hargrave's Law Tracts . . . . . . . . . . . . . . 173
Harrington's Oceana . . . . . . . . . . . . . . . 197
Hawthorne: English Note-Book . . . . . . . . . . . 109
Hearn : The Government of England . . . . . . . 25, 30, 160
Herbert : Antiquities of the Inns of Court and Chancery, 37, 74, 93, 94
Hitchcock: Constitutional History of the United States . . . 201
Hobbes: Dialogue of the Common Laws . . . . . . . . 316
Leviathan . . . . . . . . . . . . . . . . 10
Holland: Elements of Jurisprudence . . . . . . 11, 12, 20, 27
Holtzendorff’s Encyklopädie der Rechtswissenschaft . . . . 310
Horwood's Year Book (32 Edw. I., p. 32 A.D. 1304) . . . . 230
Hume : History of England . . . . . . . . . . . . 49
Hunt: Life of Edward Livingston © e º º 337, 338
Hutton : Literary Landmarks of London . 48, 76, 95, 96, 97, 98, 99,
100, 102
Ihering : Der Zweck im Recht . . . . . . . . . . . 382
Imperial Dictionary . . . . . . . . . . . . . . 36,270
Irving : Life of Goldsmith . . . . . . . . . . . . . 98
Jesse: London . . . . . . . . . . . . . . . . . 95
Memories of Westminster Hall . . . . . . . . . 112
Johnson's Dictionary . . . . . . . . . . . . . . . 88
Johnson: Journey to the Western Isles; Inch Kenneth . . . 41
Life of Milton . . . . . . . . . . . . . . . 188
Jones, Sir William : Preface to the Speeches of Isaeus . . . . 137
Struggle for Law (Lalor's Translation) . . . . . . . 383
396 - A C/ZTHOA'S CZ 7TA2 D.
PAGE
Jonson : Every Man out of his Humour . . . . . . . . 92
Juridical Society Papers, Best . . . . . . . . . . 121, 122
Hawkins: Digests and Codes e - e. . 277
— Smith: Ancient Legal Education in the Inns of Court . . 78
— Stephen • e º e e e º e e º e . 122
Westlake: A Plea for Official Reporting . . . . . . . 275
Jurist (London) e tº g o e º 0 & 0 & 282
Justinian . . . . . . . . . . . . . . . . . . 258
Kent : Commentaries . . . . . . . . . 200, 246, 359, 379
Kolb : Condition of Nations (Translated by Mrs. Brewer) . . 26
Lamb : Essay “On Some of the Old Actors ”. . . . . . . 46
On the “Old Benchers ” . . . . . . . . . . . 46, 101
Law Quarterly Review . . . . . . . . . . . . . 299
Lee, Francis Bazley: History of the Supreme Court of New Jersey 57
Lightwood ; Nature of Positive Law - 382
Loftie, W. J. : The Tnns of Court and Chancery. 35, 61, 75, 94, 95,
7, 98, 102, 103
Longfellow : Michael Angelo . . . . . . . . . . . . 888
Lorimer: The Institutes of Law . . . . . . . . . . . 4
Macaulay: Article on Sir James Mackintosh . . . . . . . 300
Essay on History . . . . . . . . . . . . . . 159
Essay on Warren Hastings . . . . . . . . . . . 109
Review of Dumont's Mirabeau . . . . . . . . . 817, 328
Maine: Ancient Law . . . . . . . . . . . . . . 297
Early History of Institutions . . . . . . . . . 13, 317
Early Law and Custom . . . . . . . . . . . . 808
Essay on Popular Government . . . . . . . . . . 211
Village Communities . . . . . . . . . . 314, 338, 346
Mackintosh, Life of Sir James . . . . . . . . 137, 205,.212
History of England . . . . . . . . . . . . 85, 159
Speech in Defence of Jean Peltier . . . . . . . . . 91
Manning: Serviens ad Legem . . . . . . . . . . . . 70.
Manning's Report of the Serjeants’ Case . . . . . . . . 74
Markby: Elements of Law . . 6, 11, 22, 23, 29, 229, 231, 232, 259
Martin, Benj. Ellis: Footprints of Charles Lamb . . 99, 100, 101
Merrill (in 11 Am. Law Rev. 677) . . . . . . . . . . 120
Mill, John Stuart : Autobiography e e e o e 335, 336
Dissertations and Discussions . . . . 804, 307, 318, 831, 385
Miller, Justice Samuel F. : Lectures on the Constitution of the
United States . . . . . . . . . . . . 201, 209, 227
— The System of Trial by Jury . . . . . . . . . . 123
A C/7 HOA'S CZ 7 A.D. 397
- PAGE
Milton : Comus . . . . . . . . . . . . . . . . 80
Modern Reports . . . . . . . . . . . . . . 54
Montesquieu : Spirit of the Laws . . . . . . . . . . 159
Morley, John : Critical Miscellanies . . . . . . . . . . 296
Murphy: Essay on Johnson . . . . . . . . . . . . 97
Nash: Life of Lord Westbury . . . . . . . . . 277, 278
Paston: Letters . . . . . . . . . . . . . . . . 50
Paterson: Liberty of the Subject . . . . . . . . . . 813
Pearce : Inns of Court . . . . . 37, 51, 59, 60, 74, 78, 79, 80, 94
Pepys's Diary . . . . . . . . . . . . . . . . . 47
Phelps, Edward J. : Address before American Bar Association 166
Bennington Anniversary Oration . . . . . . . . . 350
Political Science Quarterly . . . . . . . . . 197, 200
Pollock, Sir Frederick: Article in Law Quarterly Review. . 83, 299
Essays in Jurisprudence and Ethics, 11, 21,233,236,244, 286, 312
History of the Science of Politics . & 8, 10, 349
— Oxford Lectures and Other Discourses 21, 25, 28, 205, 297, 310
— Oxford Studies . . . . . . . . . . . . . . . 143
Pomeroy: Municipal Taw . . . . . . . . . . . . . 291
Poore's Charters and Constitutions . . . . . . . . 359, 368
Pulling: Order of the Coif, 37, 42, 43, 55,66, 68, 70, 72, 73, 74, 94, 112
Raleigh : History of the World . . . . . . . . . . . 50
Reeves: History of the English Law . . . . . . . . . 62
- History of the Common Law (Introduction by Finlason) . 159
Rendle, William : The Inns of Old Southwark . . . . . . . 38
Reports of American Bar Association . 122, 245, 249, 255, 266, 309
Report of Committee of American Bar Association . . 83, 85, 309
Report of Common-Law Commissioners on subject of Serjeants’
Inn and the Inns of Court . . . . . . . . . . . . 74
Report on Legal Education — U. S. Bureau of Education . . 18, 85
Robinson, B. Coulson : Bench and Bar . . . . 55, 56, 68 et seq.
Robinson, Henry Crabb : Diary . . . . . . . . . . . 324
Romilly : Life of Sir Samuel . . . . . . . . . . 325, 334
Schiller . . . . . . . . . . . . . . . . . . . 198
Sharswood: Law Lectures . . . . . . . . . . . 203, 286
Skeats's Dictionary . . . . . . . . . . . . . . . . 38
Smith, Philip Anstie: History of Education for the English Bar
39, 59, 78, 81, 94
Southey : Works of Cowper . . . . . . . . . . . . 96
Spence: Equity . . . . . . . . . . . . . . . 19, 230
398 A C/7 HOA'S CZ 7 A.D.
PAGE
Spenser: Prothalamion . . . . . . . . . . . . . . 45
Spilsbury: Lincoln's Inn . . . . . . . . . . . 60, 93, 94
Starkie's Evidence . . . . . . . . . . . . . . . 840
Steiger's Cyclopedia of Education . . . . . . . . . . 81
Stephen : Digest of the Criminal Law . . . . . . . . . 279
Digest of the Law of Evidence . . . . . . . . 278, 341
General View of the Criminal Law of England . . . . 341
— History of the Criminal Law of England, 118, 257, 260, 316, 365,
366, 369, 380
Stillé: Life and Times of John Dickinson . . . . . . . . . 853
Story: Equity . . . . . . . . . . . . . . . . . 280
Life and Letters . . . . . . . . . . . . . . 221
Stow : Survey of London . . . . . . . . . . . . . 51
Stubbs: Constitutional History . . . . . . . . 157, 164, 212
Taylor : Evidence . . . . . . . . . . . . . . . . 278
Tennyson . . . . . . . . . . . . . . . . . . 178
Thackeray: Pendennis . . . . . . . . . . . . 40, 93, 96
English Humourists . . . . . . . . . . . . . 96
Thayer: The Jury and its Development . . . . . . . 29, 122
Thompson, R. H. : Address to Mississippi Bar Association . . 364
Thompson, Seymour D. : Treatise on the Law of Homesteads . 361
Townsend: Lives of Twelve Eminent Judges . . . . . . 326
Twiss, Horace : Life of Lord Eldon . . . . . . . . . . 280
Tyler : Memoir of Roger Brooke Taney . . . . . . . . 167
Voltaire's Commentary on Beccaria's Work . . . . . . . 368
Waterhouse: Edition of Fortescue’s “De Laudibus” . . . . 54
Webster, Daniel: Webster's Works . . . . . . . 26, 145, 186
Westbury, Lord : Nash's Life of . . . . . . . . . . 277, 278
Woolrych : Lives of Eminent Serjeants-at-Law . . . . . 70, 74
Wordsworth . . . . . . . . . . . . . . . . 57, 114
Wynne, Edward: Eunomus . . . . . . . . . . 51, 74, 215
— Observations touching the Antiquity and Dignity of the
Degree of Serjeant-at-Law, etc. . . . . . . . . . . 74
IN DE X.
–Q-
ACTIONS, PAGE
reform in the law of evidence . . . . . . . . . . 373
competency of witnesses . . . . . . . . . 373, 374
law of procedure (see CoDIFICATION).
AMENDMENT OF LAWS (see BAcon ; BENTHAM; CodLEI-
CATION ; LAW ; LEGISLATION),
true motto of the legal reformer © e º e º e
AMERICA (see CoNSTITUTIONS ; GoverNMENT ; UNITED
STATES).
AMERICAN BAR ASSOCIATION,
report on legal education . . . . . . . . . . . . 83
report on bulk and uncertainty in the law 244, 245, 248, 254, 255
resolution as to law reporting . . . . . . . . . . 267
resolution as to publication of law reports . . . . . . 289
347
report on classification of the law . . . . . . . . 309 note
AMOS, PROF. SHELDON (see table, AUTHORs CITED),
extract from, on relations between law and morality . . . 7
classification of defects in our law . . . . . . . . . 177
ANARCHISM (see SocIALISM).
APPENZELL,
Swiss Canton of . . . . . . . . . . . . . . . 161
ARBITRARY POWER,
absence of, in English and American legal polity . . . . 224
ARBITRATION, -
in international law . . . . . . . . . . . . . 384
ARGUMENTS (see REPORTs),
Superior value of oral over printed . . . . . . 190, 191, 192
former English practice . . . . . . . . . . . . 191
full consultation by the judges . . . . . . . . . . 192
ARKANSAS,
instructions by the judge in jury trials . . . . . . 127 note
ARTS,
contributions of America to . . . . . . . . . . . 377
4OO AVDAX.
ATTORNEYS (see BARRISTERs; LAwyERs), PAGE
officers of the common-law courts . . . . . . . . . 52
AULA REGIA . . . . . . . . . . . . . . . 42 note
AUSTIN, JOHN,
his “Province of Jurisprudence Determined,” . . . . . 6
conception of law . . . . . . . . . . . . 6, 10, 382
leading objection to case-law . . . . . . . . . . 291
reaction against Bentham’s extreme views . . . . . . 339
AUSTRIA,
adopted the Roman law . . . . . . . . . . . . . . 22
the Austrian code . . . . . . . . . . . . . . 258
doctrine of judicial precedent . . . . . . . . . 286 note
BACON, LORD,
connection with Gray’s Inn . . . . . . . . . . 46, 95
disgrace and pathetic death . . . . . . . . . . 47, 48
early life in Gray's Inn . . . . . . . . . . . . 48
tarnished but enduring fame . . . . . . . . . . 49
first Queen's counsel . . . . . . . . . . . . . . 69
gardens of Gray’s Inn laid out by . . . . 46 note, 48 note, 95
views on law amendment . . . . . . . . . . . . 259
scheme of law amendment . . . . . . . . . 272, 278
method of dealing with statute law . . . . . . . . 273
With case-law . . . . . . . . . . . . . . . . 274
BALLANTINE, SERJEANT,
on improvement in administration of law . . . . . 369 note
BAR (see BARRISTERs; INNs of CourT; LAWYERs; LEGAL
EDUCATION; SERJEANTS-AT-LAw).
BARNARD’S INN . . . . . . . . . 104
BARRISTER—AT—LAW (see INNs of Court),
degree in ranks of barristers . 58
exclusive power to confer degree of . . . . . . . 91
BARRISTERS (see INNs of Court; LAwYERs; LEGAL EDU-
CATION ; SERJEANTS-AT-LAw).
higher class of lawyers . . . . . . . . . . . . 52
right to appear in Superior courts . . . . . . . . . 52
rank among members of Inns of Court . . . . . . . 53
lowest degree in ranks of . . . . . . . . . . . . 58
conversion into Serjeant-at-law . . . . . . . . . 68, 71
BEAUMONT,
member of the Inner Temple . . . . . . . . . . 95
BECCARIA, -
influence of views of, on criminal law . . . . . . . 368
BELGIUM,
Written constitution . . . . . . . . 201
BENCH (see Courts; ENGLAND; JUDGEs).
AVZ) Aº X. 4OI
BENCHERS (see INNs of Court), t PAGE
governing body of Inns of Court . . . . . . . . . 53
BENTHAM, JEREMY,
as a law reformer . . . 180, 181, 299, 313, 319, 320, 330 note
a typical radical . . . . . . . . . . . . . 299
a legal recluse . . . . . . . . . . . . 320, 330 note
place in our legal history . . . . . . . . . . 316, 317
labors of . . . . . . . . . . . . . . . . 813–315
devotion to his work . . . . . . . . . . . . . 320
obstacles in his way . . . . . . . . . . . 323, 327
value and influence of his labors . . . . . . . 332, 334
influence in England and America. . . . . . . 336, 337 note
on law of evidence . . . . . . 339, 340, 341, 374
his conception of a code . . . . . . . . 180, 342
remedy for bulk and uncertainty of the law . . . . . 275
failure in directly realizing practical results . . . . . 341
his scheme impracticable in full extent . . . . . . . 343
enemy of case-law . . . . . . . . . . . . . . 313
admission as to value of reports . . . . . . . 174, 270
merits as critic of our law . . . . . . . . . . . 333
principal works relating to law and legislation . . . . . 318
English law and society in time of 300, 302, 303, 304, 306, 318
opinion of the English law - e. e. e. e. e. 307, 321
contrasted with Blackstone's . . . . . . . . 322
friends and co-laborers . . . . . . . . . . . . 328
Brougham's estimate of . . . . . . . . . . . . 329
Talleyrand’s observations . . . . . . . . . . . . 332
Mill's critical estimate . . . . . . . . . . . . 335
Sir James Stephen’s opinion . . . . . . . . 316
Austin’s reaction against extreme views of . . . . . . 339
BERING SEA SEAL CONTROVERSY,
value of arbitration . © e º e
BILLS, NEGOTIABLE,
conflict of law respecting . . . . . . . . . 245, 246, 247
|BILL OF RIGHTS . . . . . . . . . . . 203
basis of English and American liberty . . . . . . . 35
BLACK BOOK,
record of proceedings of Lincoln's Inn . . . . . . . 67
384 note
BLACKSTONE,
a consummate literary artist . . . . . . . . . . . 310
typical conservative . . . . . . . . . . . . . 298
state of English law and society in time of 300, 302, 303, 304, 306
need for an institutional work . . . . 309
value of his Commentaries . . . 150 note, 298, 307, 311, 354
great influence on American law . . . . . . 150 note, 298
eulogies of English law . . . . . . 307, 333, 354
opinion of English law contrasted with Bentham's . . . 322
opinion as to criminal law . . . . . . . . . . . 366
26
4O2 AV/OAX.
BLACKSTONE, - continued.
indebtedness to Lord Hale
his definition of law . . . . . . . . .
need of a modern Blackstone
BOSWELL,
entered name at Inner Temple
BOUTMY, EMILE,
on state of England and its laws
concerning Magna Charta
on United States government
BRACTON,
as authority in our law . . . . . . . .
BRIEFS (see ARGUMENTs).
BRIGHT, JOHN . . . . . . . .
BROUGHAM, LORD,
estimate of Bentham
acts relating to evidence
BRYCE, PROFESSOR: JAMES,
extracts from . . . . . . . . . . . .
BULK OF OUR LAWS (see CASE-LAw; LAw).
BURKE, EDMUND,
illustration of conservatism of English
remarkable concession . ©
the people the true legislator
CAIRNS, LORD CHANCELLOR,
approval of codification . . .
CASE—LAW (see BENTHAM; CodIFICATION; CourTs; JUDICIAL
PRECEDENT ; LAw; LEGAL EDUCATION ; REPORTs),
one of the great divisions of the law
permanent necessity
uneven growth
why incomplete . . . .
inconveniences and defects
importance and value of the reports
(see REPORTS).
bulk and uncertainty
236, 237, 242
31 note, 88, 174,
PAGE
308
10
311, 312
97, 98
. 305 note
. 305 note
146, 147
23
356
329
340,374
206, 207
. 323, 324
348
349
183 note
176, 267
343
242
176,271
234, 270
87, 133, 174, 177, 184 note, 233, 242, 248,
250 and note, 264, 265, 266, 278 note, 285,288, 314, 344, 380
272 note, 285
causes of bulk and uncertainty 242, 243,248,264,
effects . . . . . . . . . .
report of America Bar Association
suggested remedies
Bacon’s method
Bentham’s . . . . . .
Lord Westbury's . . . . . .
illustrations of conflict and uncertainty
objection of Austin to . . . . . . . .
254, 268, 269, 386
244, 249, 250
245
274
275
o 277 700te
246, 247
291
AZMZD EX. 4O3
CASES, PAGE
in courts of justice . . . . . . . . . . . . . 81
CASE SYSTEM (see CASE-LAw; LEGAL EDUCATION),
place in legal education . . . . . . . . . . . 86, 88
CENTRALIZATION,
the States an effective bulwark against . . . . . . . 218
CHANCERY (see Courts; EQUITY; INNs of CHANCERY),
court of, origin . . . . . . . . . . . . gº
CHARACTER, *
of English judges . . . . . . . . . . . . . . 119
CHESTER INN . . . . . . . . . . . . . . . . 62
CHICKASAW INDIANS,
tribal customs, sources of Mississippi's married women’s
laws . . . . . . . . . . . . . . . . . 364 note
CHOATE, RUFUS,
eulogium on the constitution . . . . . . . . . 199, 200
CHURCH AND STATE,
complete and permanent separation in the United States 352, 353
CIVIL LAW (see PREFACE; LAw; Roman LAw).
CIVIL PROCEDURE (see CoDIFICATION ; PRocedurE),
amendments in law of . . . . . . . . . . . . . 370
codification of law of . . . . . 183, 260 note, 371, 372, 373
CIVIL SUITS (see ACTIONs).
CIVIL WAR,
in the United States, the fourteenth amendment result of . 211
CLEMENT'S INN . . . . . . . . . . . . . . . 104
CLIFFORD’S INN . . . . . . . . . . . . . . . 104
hostel of a noble family . . . . . . . . . . . 37 note
lease of . . . . . . . . . . . . . . . . . 60, 62
antiquity . . . . . . . . . . . . . . . 62, 67 note
COCKBURN, CHIEF—JUSTICE,
charge to jury in the Tichborne case . . . . . . 128
. 235
as to reform of the law . . . . . . . . . . . 184 note
progress of law in America. . . . . . . . . . 187
CODE (see CoDIFICATION).
CODIFICATION,
the term defined . . . . . . . . . . . . . . 179, 256
Why necessary . . . . . . . . . . . . . . . 344
systematic recompilation of our law necessary . . 269, 347, 373,
386, 387
as a remedy for defects in the law . . . . . . . . 179, 254
for bulk and uncertainty . . . . 179, 254, 255, 268, 275
objections to . . . . . . . . . . . . . . . 182
within what limits practicable and expedient . . 181–183, 257,
258, 373
reports of American Bar Association . . 244, 245, 248, 254, 255
4O4. AVDA.X.
CODIFICATION, - continued. PAGE
constantly being effected . . . . . . . . 346
tacit codification . sº tº gº tº Q 346
materials ample . tº e * 346
true idea and principle . . . . . . . . . . . . 259, 345
views of Lord Bacon tº tº 259
Justice Stephen . . . . . . . . . 260
Lord Bacon’s scheme of law amendment . . . . . 272, 278
Lord Westbury's . . . . . . . . . . . . . 277, 278
Bentham's idea . . . . . . . . . . . . 180, 181, 342
Eldon’s influence. tº º te tº e º º ºs © 325
aversion of English people to innovation . . . 323, 324, 325
effect of French Revolution on law reform in England . 325
drift of American jurisprudence towards . . . . . 288 note
Bentham and his labors * c e s º 313
action of English Law Amendment Society. 276
the Royal Commission of 1866 . . . . . . . . . . 277
of the law of procedure . . . 183, 260 note, 370, 371, 372, 373
David Dudley Field’s labors e º e º 'º º 183
Lord Chancellor Cairns' approval . . . . . . 183 note
Chief-Justice Cockburn’s suggestion . . . . . . .184 note
Lord Coleridge's views . . . . . . . . . . 185 note
America led in this reform . . . . . . . . . 186 note
need of reform in the substantive law . . . . . . 184,
186
labors of Edward Livingston . . . . . . . . 337 note
COIF (see SERJEANT-AT-LAw),
order of the . . . . . . . . . . . . . . 68 et seq.
power of conferring
what it is .
COKE, LORD,
account of Inns of Court
as to value of oral arguments
COLERIDGE, LORD,
71
71
50
191
view on codification . . . . . . . . . . . . 185 note
COLERIDGE, SAMUEL TAYLOR,
extract from . . . . . . . . . . .
on permanence and progression in the State
COLONIES, ſ
199
295
contest of America with England . . . . . . . . 205 note
“COLT,”
in ceremony on creation of serjeant-at-law . . . . . .
COMMON LAW (see ENGLAND; LAw; Roman LAw; WEST-
MINSTER HALL),
senses in which term used
localization of the courts . † º 'º º e º º ºs º º
Westminster Hall the seat of the great judicial courts . 42,
in what sense “unwritten " . © º e º e º us
71
155
43
108
27
AVZ) A^X. 4O5
sº-
COMMON LAW, - continued. PAGE
expansion and influence . . . . . . . . . . . 26, 304
compared with Civil Law . . . . . . . . . . . 143, 169
principles of Roman Law ingrafted . . . . . . . . 171
distinct from Civil or Roman . . . . . . . . . 22, 23
main artificers of . . . . • . . . . . . . . . 27
a distinctive system . . . . . . . . . . . . . . 171
general character . . . . . . . . . . . . . 157, 158
pervaded by a spirit of freedo . . . . . . . . 157, 158
indigenous character . . . . . . . . . . . . . 158
condition of, in 18th century. . . . . 300, 302, 308, 318, 354
need of an institutional Work . . . . . . . . . . 809
basis of American systems . 27, 115, 134, 144, 155, 156, 216, 299
to what the merits of our systems due . . . . . 29
American expansion of . . . . . . . . . . . . 299
essential rights of Englishmen . . . . . . 225, 226
Blackstone's eulogies and Bentham's denunciations . . . 307
existing need . . . . . . . . . . . . . . . . 847
accidental origin and development . . . . . . . 234, 235, 349
feudal system, effects . . . . . . . . . . . . 302, 355
pleading, reform in . . . . . . . . . . . . . . 370
COMMON PLEAS, COURT OF,
effect of clause in Magna Charta concerning . . . . 42, 43
established in Westminster Hall . . . . . . . . . 42
early Origin . . . . . . . . . . . . . 42 note
COMMUNISM (see SocIALISM).
COMPENSATION,
of judges . . . . . . . . . . . . . . 119, 131 note
CONGREVE,
had chambers in the Middle Temple . . . . . . . . 100
CONNECTICUT,
laws as to competency of witnesses . . . . . . . 374 note
CONSERVATISM (see Col.BRIDGE, SAMUEL Taylor),
of the English . . . . . . . . 323, 324, 325, 326
CONSTITUTIONAL LIMITATIONS (see Constitutions),
as affecting law . . . . . . . . . . . . . . . . 15
efficiency of, in the United States . . . 209, 210, 213, 226, 351
CONSTITUTIONS,
constitution of England, what is . . . . . . . . . 32
distinguishing excellences of . . . . . . . . . 224
Secured by our constitutions . . . . . . . . 33
Written, our Supreme law . . . . . . . . . 15, 196, 197
unique feature of American legal institutions . . . . . 196
rationale and purposes of written . . . . . . . . . 198
devices to prevent precipitate popular action . . . . . 198
Successful Workings of our . . . . . . . . . . 209, 210
4O6 - A/V/D Aº X.
CONSTITUTIONS, - continued. PAGE
efficiency of constitutional limitations . . 209, 210, 213, 226, 351
security of personal liberty, contracts, and property 207–209, 213
Sir Henry Maine's opinion . . . . 211
wisdom of founders of our institutions . . . . . . . 205
restraints on popular power . . . . . . . . . . . 206
provisions of early constitutions . . . . . . . . . 207
American, praised by foreign critics . . . . . . 202, 378
discriminated from European . . . . . . . . . 201
legal Sanctions of . . . . . . . . . . . . . . 199
power of courts respecting unconstitutional statutes . . 200 note
the federal constitution . . . . . . . 163–165, 207, 351
the fifth amendment . . . . . . . . . . . 208, 213
the fourteenth . . . . . . . 211, 212, 213
Marshall’s judgments construing . . . . . . . 165, 380
Choate's eulogium . . . . . . . . . . . . 199
Gladstone's . . . . . . . . . . . . . . . 878
fundamental guarantees . . . . . . . . 203, 207–213
respected and protected, exception . . . . . . . 203
highest ideal of law realized in America. . . . . . . 382
duty of bar and judiciary concerning . . . . . . . 214
CONTINENTAL SYSTEMS OF LAW (see JUDICIAL PRE-
CEDENT; LAW ; ROMAN LAW).
CONTRACTS,
protected by the constitutions . . . . 208, 209, 213, 353 note
sacredness of, Sir Henry Maine's opinion 211
menace to . . . . . . . . . . . . . . . 295
CONTROVERSIES (see CASEs).
COPYRIGHT,
predicted changes in law of . . . . . . . . . . . 385
CORPORATIONS,
growth of, and of corporate litigation . . . . . . . . 376
public and municipal . . . . . . . . . . . . . 377
CORPUS JURIS (see Roman LAw).
COUNCIL,
meeting of benchers in Lincoln’s Inn so termed . . . 53 note
COUNCIL OF LAW RIEPORTING . . . . . . . . . 282
COUNCIL OF LEGAL EDUCATION,
authority and functions . . . . . . . . . . . . 82
membership . . . . . . . . . . . . 82
COUNSEL (see BARRISTERs; LAwYERs; QUEEN’s CounsEL).
COUNSELLOR (see BARRISTER-AT-LAw; LAwYERs; SER-
JEANTS-AT-LAw).
COUNTY MAGISTRACY,
powers of . . .
. . . . . . . . . . . . . . 118
COURT OF CHANCERY (see CHANCERy; Courts; EQUITY).
AVD EX. 4O7
PA
COURTS (see CASE-LAw; CoMMON PLEAs ; JUDGEs; JURY: GE
ROYAL COURTS OF JUSTICE; TRIAL BY JURY ; WEST-
MINSTER HALL),
merits of our legal system due to mode of evolution in . 29, 30
essential attributes of . . . . . . . . . . . . 81
difference between legislative tribunals and . . . . . . 32
localization of the courts . . . . . . . . . . . . 43
removal of the great courts of justice into new building . 35, 112
the local courts in England . . . . . . . . . 159
judicial and legislative functions . . 5, 19, 152, 267, 268, 343
for what purposes established 152
power to declare statutes void . . . . . . . . . 200 note
Origin of court of chancery . . . . . . . . . . . 235
COWPER,
residence at the Temple . . . . . . 96
CRIMINAL CASES (see CRIMINAL LAw),
no substitute for jury in . . . . . . . . . . . . 124
CRIMINAL LAW AND PROCEDURE (see CoDIFICATION:
PROCEDURE),
of England, Severity . . . . . . 365, 366, 367
grave and fundamental faults . . . . . . . . . 365
defence by counsel . . . . . . . . . . . . 367
amelioration . . . . . . . . . . . . . . . 367
comparative mildness in America. . . . . . . . . . 36S
effects of undue severity . . . . . . . . . . . 368, 369
improved procedure. e e o e o e e º e 370
Summary procedure . . . . . . . . . . . 117, 118, 119
codification of 372
CROWN,
separation of judicial from kingly office . . . . . . . 29
judges free from control by . . . . . . . . . . . 29
CURIA REGIS . . . . . . . . . . . . . . . 111, 112
CUSTOM,
as source of the unwritten law . . . . . . . 13 note, 229
DEBT,
abolition of imprisonment for . . . . . . . . . . 359
DEBTOR,
improvement in law relating to . . . . . . . . . 353 mote
national and State homestead exemption laws . . . . . 361
DECISIONS (see CASE-LAw; Courts; JUDICIAL PRECE-
DENT: LAw; OPINIONS).
DECREE (see JUDGMENT).
DEFINITIONS,
of “our law,” . . . . . . . . . . . 8 et seq., 12, 21, 382
jurisprudence . . . . . . . . . . . . . . 20, 21
Inns of Court . . . . . . . . . . . . . . 36, 37
4O8 AVD E.X.
DEFINITIONS, - continued. * PAGE
codification . . . . . . . . . . . . . . 179, 256
judicial precedent . . . . . . . . . . . . . . 281
of law, Hobbes's . . . . . . . . . . . . . 9 note
Pollock’s comment . . . . . . . . . . . 10 note
Blackstone's definition . . . . . . . . . . . 10
Austin's . . . . . . . . . . . . . . . 10, 882
Holland's . . . . . . . . . . . . . . . . . 11
Markby's . . . . . . . . . . . . . . 11 note
Savigny’s conception . . . . . . . . . . . . 881
DENMAN, LORD,
act relating to evidence . . . . . . . . . . . 840, 374
DENMARK,
system of Taw reporting . . . . . . . . . . . 281 note
DE TOCQUEVILLE,
criticism on English constitution . . . . . . . . . 201
DICEY, PROF. A. V. (see table, AUTHORs CITED),
work on the Law of the English Constitution . . 202, 214, 224
DICKINSON, JOHN,
a free government defined . . . . . ge e 353
DISTRESS FOR RENT (see REAL PROPERTY).
DOMESTIC RELATIONS,
legal relations of husband and wife . . . . . . . 362, 863
effect of feudalism . . . . . . . . . . . . . 362, 863
relief afforded by chancery . . . . . . . . . . . 863
modern married women’s acts . . . . . . . . . . 864
freedom of married women . . . . . . 353 note, 364 note
DUE PROCESS OF LAW,
a fundamental principle . . . . . . . . 853 note
DWIGHT, PROF. THEODORE W.,
his regard for Bentham tº º
EDUCATION (see INNs of Court; LEGAL EDUCATION).
ELDON, LORD CHANCELLOR,
influence on law reform . . . . . . . . . . . . 325
his character and merits . . . . . . . . . 326, 357, 358
EMINENT DOMAIN,
. . . 332 note
as a means of attack on private property . . . . . . . 204
ENGLAND (see CASE-LAw; Codific ATION: CoMMON LAW ;
Courts; INNs of Court ; MAGNA CHARTA ; WEST-
MINSTER HALL),
the constitution of, what is . . . . . . . . . . . 32
De Tocqueville's criticism . . . . . . . . . . 201
excellence of legal system . . . . . . . . . . 171, 306
the Roman law excluded as a system . . . . . . 24, 25, 159
fortunate results . . . . . . . . . . . . 24, 25
common law extended to every part (see CoMMON LAW) . 304
unorganized condition of law of . . . . . . . . . 808
AVZ) EX. 4O9
ENGLAND,-continued. PAGE
Bentham's opinion of law of . . . . . . . . . . 307, 321
contrasted with Blackstone's . . . . . . . . . 322
state of law and Society in time of Blackstone and Bentham
300, 302, 303, 304, 306, 318
Macaulay's description of progress of people of . . . . . 300
unbroken national life . . . . . . . . . . . . . 301
condition of law at the date of our Independence . . . . 354
Sydney Smith's description . . . . . . . . 857
identity with law of America. . . . . . 194, 216, 226, 354
contest with American colonies . . . . . . . . 205 note
essential rights of Englishmen . . . . . . . . . . 225
aversion to innovation . . . . . . . . 323, 324, 325, 326
illustrations . . . . . . . . . . . . . . 324, 325
branches of the legal profession . . . . . . . . 52
judges not a distinct branch of the profession . . . . . 28
local courts and local government . . . . . . . . . 159
Law Amendment Society . . . . . . . . . . . . 276
system of law reporting . . . . . . . . . 279, 280, 282
land-laws of . . . . . . . . . . . . . . 170, 356
number of land-owners . . . . . . . . . . . . 356
criminal law, severity of . . . . . . . . . 365, 366, 367
two fundamental faults . . . . . . . . . . . 365
judicature acts . . . . 183, 184, 185, 186 note, 260 note, 372
ENGLISH LAW (see CASE-LAw; CoMMON LAw; ENGLAND ;
INNs of Court; LAw; WESTMINSTER HALL).
ENGLISH SOCIETY FOR THE PROMOTION OF LAW
AMENDMENT . . . . . . . . . . . . .
ENTERTAINMENTS
in the Inns of Court . . . . . . . . . . . . . 80
EQUITY (see LAw),
doctrines of, progressive and flexible . . . . . . . . 5
Sir George Jessel's judgment . . . . . . . . . 6 note
origin of Court of Chancery . . . . . . . 235
doctrines concerning equitable estates . . . . . . . 238
and utility, foundations of law . . . . . . 348
relief against doctrine of merger of married women . . . 363
union of legal and equitable rights and remedies . . . . 386
ETHICS (see MoRAL LAw).
EUROPE,
basis of legal systems in . . . . . . . . . . . . 22
EVIDENCE (see WITNESSEs),
in courts of justice . . . . . . . . . . . . . 81
scintilla doctrine in jury trials . . . . . . . . . . 130
Bentham’s influence on law of . . . . . 339, 340, 341, 374
Denman's and Brougham’s Acts relating to . . . . 340, 374
reforms in law of . . . . . . . . . . 373, 374 note
276
4 IO AVDAX.
EXEMPTION LAWS (see REAL PROPERTY). PAGE
EXPATRIATION,
Voluntary, principle of . . . . . . . . . . . . . 350
EX POST FACTO LAWS, -
rendered impossible by constitutional limitations . . 353 note
FEDERAL CONSTITUTION (see CoNSTITUTIONs).
FEUDALISM (see FEUDAL SYSTEM).
FEUDAL SYSTEM,
general effects of feudalism . . . . . . 169, 302, 355, 362
the doctrine of tenure . . . . . . . . 169, 170, 239, 355
basis of English law . . . . . . . . . . . . 302
source of land-laws of Great Britain . . . . . . . . 170
effect on domestic life and manners . . . . . . 170, 362
on the domestic relation . . . . . . . 362, 363
FIELD, DAVID DUDLEY,
labors for legal reform . . . . . . . . . . . 183, 244
on codification . . . . . . . . . . . . . 260 note
FIELDING,
student of the Middle Temple . . . . . . . . . . 95
FIFTH AMENDMENT (see CoNSTITUTIONs).
FLETA,
as authority in Our law . . . . . . . . . . . . 23
FORD (the dramatist),
had chambers in the Middle Temple . . . . . . . . 100
FORECAST
of the future development of our law .
FORSTER,
member of the Inner Temple . . . . . . . . . . 99
FORTESCUE, SIR JOHN,
sketch of the Inns of Court . . . . . . . . . 49, 63–65
comments on . . . . . . . . . . . . . 65, 66
as to genuineness of his account of the Inns . . . . . 66
FOSS, EDWARD,
extracts concerning Inns of Court . . . . . . . . 59–68
FOURTEENTH AMENDMENT (see CoNSTITUTIONs).
FRANCE,
adopted the Roman law . . . . . . . . . . . . 22
written constitution . . . . . . . . . . . . . 201
the French code . . . . . . . . . . . . . . . 258
system of law reporting . . . . . . . . . . 280 note
FREEMAN, EDWARD A.,
quotation from . . . . . . . . . . . . . . 161, 162
FRENCH REVOLUTION,
effect on law reform in England . . . . . . . . . 825
. . . 383–386
AVDAEX. 4II
FURNIVAL'S INN, PAGE
the hostel of a noble family . . . © © & © 37 note
antiquity of . . . . . . . . & 62
FUTURE,
predicted changes in our law
GERMANY.,
adopted the Roman law . . .
GLAN WILL,
as authority in our law . . . .
GOLDSMITH, OLIVER,
residence and life in the Inns . . .
GOVERNMENT (see ENGLAND ; FRANCE
science of law distinguished from
popular foundation of our political systems .
wisdom of the founders
Lincoln’s famous description
Boutmy’s speculations and fears
success of American popular institutions .
force and strength thereof
their future .
importance of good laws well administered
dependence upon national justice .
our legal system and its workings .
local government in England
exact opposite of continental systems
local government in United States .
beneficial effects of local diversities
e e e © e te 383–386
; UNITED STATEs)
complexity arising from Our dual governments .
bulwark against centralization
opposing powers of permanence and progression . .
the Swiss Cantons of Uri and Appenzell .
GOWER,
member of the Middle Temple .
GRAND JURY (see JURY; TRIAL BY JURY).
GRAY'S INN (see INNs of Court),
one of the four great Inns of Court
the hostel of a noble family . . .
gardens of . . . . .
laid out by Bacon . ge
Lord Bacon its chiefest glory
Bacon’s early life in the Inn . . . .
144, 145, 146
150, 151, 153
151, 152
160–165, 217
22
23
98–100
5
205
145
147
150
148
153
154
159
160
217
217
218
295
161
meetings of the benchers styled a “pension”
antiquity of
masques performed in .
number of inhabited houses . o
number of volumes in library of . .
GREAT BRITAIN (see ENGLAND).
46 note, 48 note, 95
. . 60, 62, 67
75 note
35, 50
37 note
46
46
. 48
53 note
61
94 note
4I2 AVZ) A. Y.
HALE, SIR MATTHEW,
among the greatest of English lawyers
Blackstone's indebtedness to . . .
HALLAM,
bencher of the Middle Temple . .
HAMMOND, PROF. WILLIAM G.,
his edition of Blackstone . e
report on legal education .
reference to by Sir Henry Maine
HAWTHORNE, NATHANIEL,
impressions of Westminster Hall .
HEARING (see TRIAL).
HOBBES,
definition of law . . . . . . .
HOLLAND,
adopted the Roman law . . . . . .
HOLLAND, PROF. THOMAS ERSKINE,
definition of law . © tº tº e º &
HOMESTEAD LAWS (see REAL PROPERTY).
HOSTEL,
the equivalent of inn . . .
HUSBAND AND WIFE (see Dom ESTIC RELATIONs).
IHERING, .
motto prescribed for Continental law amendment.
ILLINOIS,
instructions by the judge in jury trials . .
IMPRISONMENT FOR DEBT (see DEBT).
INDIA,
dominion of English law . . . . . . . . .
INDIVIDUAL RIGHTS (see RIGHTs).
INHERITANCE,
of lands . . . . . . . . . . . . .
INN,
the equivalent of hostel . . . .
INNER TEMPLE (see INNs of Court; MIDDLE TEMPLE;
PAGE
308
308
102
298
308
109
9 note
22
. 11
. . 36
347
. 126 note
© e 26
. . 352
36
TEMPLE),
One of four great Inns of Court . . . . . 35, 50, 51 note, 67
origin of . . . . . . . . . . . . . . . 67
location e 45
gardens of . . . . . . . 46
the Temple Church owned by 75
meetings of the benchers . 53 note
number of inhabited houses . 75 note
employers . . . . . . . . 75 note
Volumes in library . . . . . . . . . . 94 note
AVZ) E.X. 4I3
INNS OF CHANCERY (see INNs of Court), PAGE
subordinate to the Inns of Court . . . . . . . 35
antiquity of . . . . . 62
INNS OF COURT (see GRAY's INN; INNER TEMPLE: LEGAL
EDUCATION; LINCOLN's INN; MIDDLE TEMPLE).
defined . . . . . . . . . . . . . . . . . . 36
whence the name derived . . . . . . . . . . . . 36
What the phrase signifies . . . . . . . . . . . . 37
called hospitia . . . . . . . . . . . . . . . 87 note
origin and antiquity . . . . . . . . 39, 60, 61, 68 note
the sites of the inns . . . . . . . . . . . . . 44, 63
Why chosen . . . . . . . . . . . . . 45, 63, 64
unique character . º . . . 34
the four great inns . . . . . . . . . . . . . . 35
character of the edifices . . . . . . . . . . . . 40
buildings and halls . . . . . . . . . . . . . . 75
number of inhabited houses . . . . . . . . . . 75 note
provided for use of lawyers and students . . . . . . 42, 93
the lawyers and judges of England trained and educated there 39
their historical interest and associations . . . . . . . 40
a legal university . . . . . . . . . . . . . 50, 62
legal character . . . . . . . . . . . . . . . 90
are voluntary Societies . . . . . . . . . . . . . 90
power of the Crown and courts over . . . . . . . 90,91
visitatorial power of the judges . . . . . . . . . . 90
sui generis in character . . . . . . . . . . . . 92
government of . . . . . . . . . . . . . . . 93
modern form and mode of government . . . . . 44, 66, 67
admission of students . . . . . . . . . . . . 90
exclusive power to call to the bar . . . . . . . . . 91
requisites to call to the bar (see LAWYERS; SERJEANTS-AT-
LAW) . . . . . . . . . . . . 92, 106
sketch of, by Fortescue . . . . . . 49, 63–65
as to genuineness of Fortescue's account . . . . 65, 66
comments thereon . . . . . . . . . . . . 65, 66
Coke's account . . . . . . . . . . . . . . . 50
effect of clause in Magna Charta concerning Court of Com-
mon Pleas . . . . . . . . . . . . . . 42
effect of prohibition of the law Schools . . . . 51 note, 59
number of societies . . . . . . . . . . . . 51 note, 64.
membership . . . . . . . . . . . . . . . 92, 98
ranks among members . . . . . . . . . . . . . 53
meetings of benchers . . . . . . . . . . . . 53 note
regulations concerning education (see LEGAL EDUCATION) 51 note
ancient legal education . . . . . . . . . . . 78, 79
readings and mootings . . . . . . . 78, 79, 80
defective system of legal education . . . . . . . . 81
modern system . . . . . . . . . . . . . . . 81
4I4. AAWDA. Y.
INNS OF COURT, - continued.
present scheme . . . . . . . . .
decline as seminaries of instruction . .
the Council of Legal Education
number of volumes in library . .
number of students . tº º ſº e º gº
mode of student’s life and study . . .
keeping terms e & tº
tuition . . . . . . . . .
social life of . . . . . . . . . . 40 note, 93, 94, 105
Thackeray's description . . . . . .
revels, plays, and entertainments . .
masques performed in
literary associations . . . . . .
occupied by famous poets and Writers .
INSTITUTIONS (see GoverNMENT).
INTERNATIONAL LAW,
voluntary expatriation . . . . . . . .
value of arbitration . . . . . . . . .
predicted changes . . . . . . . . .
INTRODUCTION,
course of lectures outlined . . . . . .
IOWA,
instructions by the judge in jury trials . .
IRELAND,
number of land-owners . . . . . . . .
ITALY,
adopted the Roman law . . . . . . .
system of law reporting . . . . . .
JESSEL, SIR GEORGE,
judgment concerning rules of equity . . .
JOHNSON, DR,
his passage concerning famous places . . .
residence in Inner Temple Lane . . .
JUDGES (see CoNSTITUTIONs; Courts; INNs of Court),
|PAGE
& º 82
tº º . 81
tº 82
. . 51 note, 64
. 64, 104–107
ſº 105
106
. 40 note
. . . 80
. . 61, 80
. . 76, 95–103
76, 77, 95–103
& & • • 350
. . . . 384
. . . 384, 385
© tº gº © 2
. . . 127 note
. . . . 356
Q Q 22
© & 281 note
. . . 6 note
. . . . 41
97
judicial and legislative functions . . 5, 19, 152, 267, 268, 343
artificers of the English law . . . .
not a distinct branch of the profession
free from control of Crown and Parliament .
selected from the bar tº gº tº e
of degree of Serjeant-at-law . . . . . .
character of the English judges . . . . .
tenure and compensation . . . . . . . .
a stable and independent judiciary . . . .
American departure from English principle .
the judiciary the organ of the law . . . .
not an instrument of government or party
. 27, 34
. . . . 28
. . . . 29
. . . . 30
. 30, 55, 69
. . . . 119
. 119, 131 note
. . . . 119
. 120, 294, 295
. . 120 note
tº º 120 note
JAWDAX. 4I 5
JUDGES, - continued. PAGE
fitness to decide on questions of fact . . . . . 123 note, 168
the bar the real constituency of the bench . . . . . . 283
ideal of a modern judge . . . . . . . . . . . . 188
guardians of the constitution . . . . . . . . 202, 214
in jury trials (see TRIAL BY JURY) . . . . . 125–130, 167
JUDGMENTS,
of court of justice . . . . . . . . . . . . . . 81
Source and evidence of individual rights . . . . . . . 32
JUDICATURE ACTS OF ENGLAND,
result of reforms originating in America. 183,186 note, 260 note, 372
David Dudley Field's labors . . . . . . . . . . . 183
satisfactory working of the Acts . . . 183 note, 184, 185, 186
JUDICIAL COURTS (see Courts).
JUDICIAL OPINIONS (see CASE-LAw; Courts; OPINIONs).
JUDICIAL PRECEDENT (see CASE-LAw; REPORTs),
the term defined . . . . . . . . . . . . . . . 231
doctrine of, scope and effects 132, 173, 229, 230, 231, 232, 258, 285
beneficial consequences & © tº e º 'º gº tº e 233
undue prominence to . . . . . . . . . . . 288 note
value of judicial decisions . . . . . . . . . . . 292
utility of doctrine of stare decisis . . . . . . . . . 292
its force in Continental systems . . . . . . . 132, 286
limits of doctrine defined . . . . . . . . . . 286 note
striking illustration of rule of . . . . . . . . 290 note
thorough discussion of doctrine, a desideratum . . . . . 290
judicial decisions as source of the law . . . . . 291 note
multiplicity and conflict of decisions . . . 242, 243, 252 note
true office of adjudged cases . . . . . . . . 252
views of Justice Miller . . . . . . 252, 253, 261–263
cause of enormous bulk of our case-law . . . . . 264, 285
effect of judicial decisions in European States . . . . . 286
source of certainty or uncertainty . . . . . . . 272 note
JUDICIAL RECORDS (see RECoRDs; REPORTs).
JUDICIARY (see Courts; JUDGEs).
JUDICIARY LAW (see CASE-LAw).
JURISPRUDENCE (see LAw),
the term defined . . . . . . . . . . . . 20, 21
distinguished from natural law . . . . . . . . . 8 note
Synonymous with law . . . . . . . . . . . . . 21
a practical science . . . . . . . . . . 21, 22, 156, 296
analytical and historical Schools . . . . . . . . . 339
Scientific, a necessity . . . . . . . . . . . . . 886
JURY (see TRIAL BY JURY),
historical development of . . . . . . . . . . 121 note
part of our free institutions . . . . . . . . 123, 166, 167
Chief Justice Taney’s opinion . . . . . . . . . . 167
4I6 - AVZ) A. Y.
JURY, - continued. PAGE
in criminal cases . . . . . . . . . . . . . . . 124
character and intelligence in jurymen . . . . . . . . 125
KENT, CHANCELLOR,
labors as a judge and author . . . . . . . . . . . 379
KING (see CRowN).
KNIGHTS TEMPLARS,
builders of the Temple Church . . . . . . . . . . 75
LAMB, CHARLES,
life in the Temple . . . . . . . .
LAND (see LAND-LAws; REAL PROPERTY),
land-laws of Great Britain . . . . . . . . . 170, 356
attacks upon property in land . . . . . . . . 210 note
Ownership of land in Great Britain . . . . . . . . 356
in the United States . . . . . . . . 356, 357
LAND-LAWS (see LAND),
of Great Britain . . . . . . . . . . . . . 170, 356
LAW (see CASE-LAw; CoMMON LAw; Courts; DEFINITIONs;
JURISPRUDENCE; LEGAL EDUCATION; LEGISLATION;
MORAL LAW ; ROMAN LAw; WESTMINSTER HALL).
definitions . . . 3 et seq., 9, note 10, 11 and note, 12, 21, 381, 382
ethics and morality, how far excluded . . . . . . 3, 4, 12
when ethical rules become legal & © e º & 5
relations between morality and . . . . . . . . 7, 18, 19
retroaction of moral upon civil law . . . . . . . . 16, 17
distinguished from natural law . . . . . . . . . 8 note
politics or government . . . . . . . . . . . 8
a practical Science . . . . . . . . . . 21, 22, 156, 296
synonymous with the lea: terrae . . . . g e 8
jurisprudence . . . . . . . . . . . . . 21
not with legislation . . . . . . . . 9, 14, 15, 16, 18
essential quality . . . . . . . . . . . . . . . 12
Origin, nature, and ethical foundations . . . 13, 14, 138, 348
sources and nature . . . . . . . . . 13, 14, 18, 172, 229
chief value of our system . . . . . . . . . . 172
best system of practical justice . . . . . . . 115, 171, 306
chief excellences of English system. . . . . . . 115, 116
101, 102
Sources . . . . . . . . . . . . . . . . 172
rule of legal equality . . . . . . . . . . . . 116
how administered and enforced . . . . . . . . . 116
Summary procedure . . . . . . . . . . 117, 118, 119
judiciary the organ of . . . . . . . . . . . 120 note
statute-law and case-law . . . . . . . . . . 176, 267
defects which call for remedy . . . . . 176, 177 note, 271
remedies suggested . . . . . . 178, 179, 254, 268, 383, 386
importance of good laws well administered . . . . 151, 152
AVD Aº X.
4I /
LAW, - continued.
effective power
Supremacy of . . .
bulk and uncertainty
merits of our legal polity .
judicial decisions as sources .
Austin’s objection to judiciary law
need of a modern Blackstone
Ihering's motto . . . . . . . . . . .
union of legal and equitable rights and remedies
identity of English and American .
American system, foundation
growth and excellence
great expansion . . . . . . .
Superior to Roman and Continental .
characteristics .
complexity e
Blackstone’s influence
progress * & e º e
present and future condition
improvement and amendment .
duty and difficulties .
written constitutions . e tº
effect of autonomy of the States
railways and telegraph .
threatened changes
changes inevitable
specific changes
forecast . • . . . . * * *
specific contributions to, by United States
popular foundation of our political systems .
Bacon’s scheme of law amendment
Bentham and his labors
truths in Savigny’s conception
in Austin’s . . . .
highest ideal realized . . . . .
PAGE
205
. . . . . . . . 224, 227 note, 351
87, 133, 174, 177, 184 note, 233, 242, 248,
250 and note, 264, 265, 266, 278 note, 285, 314
224.
291 note
. . 291
312, 347
347
386
115, 194, 216, 226, 299, 354
27, 115, 134, 144, 155, 216, 299
. 134, 135, 143, 171, 306
. 136, 137
143,227, 228
. . . 216
138, 217, 219
298, 354
186, 187
187, 348
135, 138, 178, 193, 383–386
138, 195, 387
15, 196, 197
219
220–223
295, 314
296, 297 mote, 314
358, 384–386
383—386
350–353
144
272-274, 278
313–315, 334
. . . 381
382
382
LAW COURTS BUILDING (see Roy AL Courts of JUSTICE).
LAW REFORM (see BACON; BENTHAM; CoorfrcATION; LAw).
LAW REPORTS (see JUDICIAL PRECEDENT: REPORTs).
LAW SCHOOLS (see LEGAL EDUCATION),
abolition of, by Henry III.
5l note, 59
LAWYERS (see BARRISTERs; INNs of Court; LEGAL EDU-
CATION: QUEEN’s CounsEL; SERJEANTS-AT-LAw).
artificers of the common law tº
character and form determined by
27, 34
94
27
AVZ) A.X.
LAWYERS, - continued. PAGE
concentration of, in London . e 43
branches of profession in England . 52
degrees of legal precedence 53
rank of barrister-at-law 91
independence of . gº tº 91
requisites to call to the bar 92, 106
mode and ceremony 103, 106
real constituency of the bench
conservatism of the bar & e e º 'º º
De Tocqueville's and Voltaire's opinion .
compensations . . . . . . . . . .
in the United States, duties and responsibilities
effect of railways and telegraphs on practice of
293, 294, 355
the pro-
293, 294
294
138, 149, 151,
195, 214
fession e & © e º e º e º º . 221, 222, 223
LEGAL EDUCATION (see INNs of Court),
theory as to sources and nature of law . . 18
importance of study of principles 188
Inns of Court, regulations o 51 note
defective system of education . 81
ancient system . 78, 79
modern º 81
present scheme . . . 82
studentship . 64, 104–107
keeping terms . 105
tuition . . . . . . . . 106
report of American Bar Association •83
criticism of English course
practical character
reading in attorney’s offices
. 81, 84, 85, 86
84
requisites to call to the bar . . . . . 92, 106
in America, unsettled and unsatisfactory. 84
scope and methods 85
limited terms of study 85
instruction in the Civil Law 86
“case” and “ text-book " systems 86
difficulties in the way of teaching 86, 87
text-books, oral instruction, cases 87, 88
importance and value of the reports . 88
advisable mode suggested . . 89
popularity of the study . . . 150 note
LEGAL INSTITUTIONS (see GoverNMENT).
LEGAL LITERATURE (see REPORTs; TEXT-BOOKS),
enormous mass of . 14, 87, 133, 134, 174, 233,265, 285, 844, 380
Blackstone’s Commentaries . 150, 298, 307, 311, 354
Chancellor Kent’s works e 379, 380 note
Justice Story's works . . . . . . . . . . . . . 880
AV/O AEX. 4 IQ
LEGAL PROFESSION (see LAwyERs). PAGE
LEGISLATION (see BENTHAM; CASE-LAw; INNs of Court),
a branch of ethics . . . . . . . . . . . . . . 19
governed by certain principles 338 note
not synonymous with law . . . . . . . . . . 9, 16
differentiated from law . . . . . . . . . . 14, 15, 18
improvement in our law by . . . . . . . . . 178, 383
fragmentary, cause of uncertainty in the law . . . . . 243
the people the true legislator . . . . . . . . . . 349
legislative functions of judges . . . . . 5, 19, 267, 268, 343 .
LEGISLATIVE TRIBUNALS,
difference between judicial courts and . . . . . . . 32
LEX TERRAE, -
“our law'” synonymous with . . © & © e º e e 8
LIBEL LAWS,
in Bentham’s way . . . . . . . . . . . . . 827
improvements in . . . . . . . . . . . . . . 375
LIBERTY,
provisions of constitutions securing . . . . . . . . 207
LIBRARY OF THE INNS,
number of volumes in . . . . . . . . . . . . 94 note
LIFE,
provisions of constitutions protecting . . . . . . . . 207
LINCOLN, ABRAHAM,
famous description of our government . . . . . . . 145
LINCOLN'S INN (see INNs of Court),
One of the four great Inns of Court . . . . . . . .35, 50
anciently the hostel of a noble family . . . . . . . 36
where situated . . . tº tº 45
gardens of . . . . . . . . . . . . . . . . . 46
meetings of the benchers styled a “council” . . . . 53 note
most ancient of the inns . . . . . . . . . . . 60, 67
“black book” or record of proceedings . . . . . . . 67
number of inhabited houses . . . . . . . . . . 75 note
volumes in library of . . . . . . . . . . 94 note
LINCOLN'S INN FIELDS . . . . . . . . . . . 46, 49
LITERARY ASSOCIATIONS,
of the Inns of Court e e º e e
LITERATURE (see LEGAL LITERATURE),
contributions of America to . . . . .
LIVINGSTON, EDWARD,
as a law reformer . . . . . . . . . . . . . 337 note
LOCAL COURTS (see Courts).
LOCAL GOVERNMENT (see GoverNMENT).
LOUISIANA,
reform of law in . . . . . . . . . . . . . . 337 note
LOWELL, JAMES RUSSELL . . . . . . . . . . 378, 383
. 76, 95–103
. . . . . . . 377
42O IZVZ) A.X.
LYON'S INN, PAGE
antiquity of . . . . . . . . . . . . . . . . . 62
MACAULAY,
occupied chambers in Gray's Inn . . . . . . . . . 102
description of Westminster Hall . . . . . . . . . 109
as to progress of the English people . . . . . . . . 300
judgment concerning Bentham . . . . . . . . . 317 note
MAGNA CHARTA (see CoMMON LAw; GoverNMENT ;
UNITED STATES),
basis of English and American liberty . . 35, 116 note, 164, 212
effect of clause concerning the Court of Common Pleas . 42, 43
made part of our fundamental law . . . . . 164, 207, 208
MAINE, SIR HENRY,
opinion as to basis of American prosperity . . . . . . 211
concerning Bentham's influence . . . . . . . . . . 316
“tacit codification ". . . . . . . . . . . . . . 346
MARITIME LAW,
predicted improvement . . . . . . . . . . . . 385
MARKBY, SIR WILLIAM,
definition of law . . . . . . . . . . . . . 11 note
MARRIED WOMEN (see Dom ESTIC RELATIONs).
MARSHALL, CHIEF—JUSTICE,
judgments construing federal constitution . . . . . 165, 380
statue to his memory . . . . . . . . . . . . . 166
MASQUES,
performed in the Inns of Court . . . . . . . . . 61, 80
MEETINGS,
of benchers, how styled . . . . . . . . . . . 53 note
MERCANTILE LAW,
predicted improvement . . . . . . . . . . . . .
MIDDLE TEMPLE (see INNER TEMPLE.; INNs of Court;
TEMPLE),
one of the four great Inns of Court . . . 35, 50, 51 note, 67
385
where situated e - © 45
gardens of . . . . . . . . . . . . . . . . . 46
meetings of the benchers termed a “parliament " . . 53 note
origin of . . . . . . . . . . . . . . . . . 67
the Temple Church used by . . . . . . . . . . . . 75
number of employers . . . . . . . . . . . . 75 note
number of volumes in library of . . . . . . . . 94 note
MILL, JOHN STUART, -
portrayal of condition of English law . . . . 302, 303, 304
critical estimate of Bentham . . . . . . . . . . 335
edited Bentham’s Rationale of Evidence . . . . . 336 note
AVZ) A.X.
42 I
MILLER, JUSTICE SAMUEL F.,
views of the jury system . . . . . . .
PAGE
122
as to true office of adjudged cases . . . . 23, 358, 261–263
MINOR OFFENCES (see PETTY OFFENCEs).
MISSISSIPPI,
instructions by the judge in jury trials . . . . .
legislation concerning married women . . . .
MISSOURI,
instructions by the judge in jury trials . . . . .
MONOPOLY,
of Wealth in America. . . . . . . . . . . .
MOORE, THOMAS,
student in the Middle Temple . . . . .
MOOTINGS (see READINGS AND Moot.INGs).
MORAL LAW (see LAw),
not included in the term “our law” . . . .
conscience a universal judge . . . . . . . .
when ethical rules become legal . . . . . . . .
relations between law and morality . . . . . .
ethical foundation of law . . . . . . . . .
retroaction upon civil law
characteristics of . . . . . . . . . .
legislation a branch of ethics . . . . . . . .
MORALITY (see MoRAL LAw).
MUNICIPAL CORPORATIONS (see CoRPoRATIONs).
MUNICIPAL LAW (see LAw).
NATIONAL JUSTICE (see GoverNMENT).
NATIONAL LIFE (see GoverNMENT).
NATIONAL UNITY,
effect of railways and telegraphs upon " . . . . .
NATURAL LAW (see LAw; MoRAL LAw).
NATURE OF LAW (see JURISPRUDENCE; LAw) . .
importance of correct theory . . . . . . . .
NEGOTIABLE BILL (see BILLS).
NEW ENGLAND TOWN MEETINGS . . . . .
NEW INN . . . . . . . . . . . . . . .
NEW JERSEY,
Serjeants-at-law in province of . . . . . . . .
NEW YORK,
code of procedure . . . . . . . . . . . .
NORTH CAROLINA,
instructions by the judge in jury trials . . . . .
NORWAY AND SWEDEN,
system of law reporting in . . . . . . . . .
NOTES NEGOTIABLE (see BILLS).
. 127 note
. 364 note
. 126 note
& © 148
100
3, 12, 17
© º 4
º tº 5
7, 18, 19
. 13, 138
16, 17
e e 17
e tº 19
. . 224
. . 13
. . 18
. . 162
. . 104
. . 57
371, 372
127 note
281 note
422 - AV DAX.
OLEOMARGARINE, PAGE
prohibition of manufacture and sale . . . . . . . . 203
OPINIONS (see Courts; JUDGEs ; REPORTs), -
importance of judicial opinions and publicity . . . 30 and note
full consultation by the judges . . . . . . . . . . 192
wisdom of written opinions . . . . . . . . . . . 282
publication of dissenting opinions . . . . . . . . . 284
ORAL INSTRUCTION (see LEGAL EDUCATION).
ORDER OF THE COIF (see CoIF; SERJEANT-AT-LAw).
ORIGIN OF LAW (see LAW) . . . . . . . . . . . 13
“OUR LAW" (see LAw),
defined . . . . . 3 et seq., 21, 382
PARLIAMENT,
omnipotent power . . . . . . . . . . . . . . 201
judges free from control by . 29, 30
meetings of benchers in Inner and Middle Temple . . 53 note
PATENT OF PRECEDENCE,
of Serjeants-at-law . . . . . . . . . . . . . 53, 70
PENNSYLVANIA,
reform in criminal law . . . . . . . . . . . . 368
PENSION,
meetings of benchers in Gray’s Inn so termed . . . . 53 note
PEOPLE,
the true legislator . . . . . . . . . . . . . 349
PERSONAL PROPERTY (see PRIvate PROPERTY),
predicted changes in law of & e e 385
PETIT JURY (see JURY; TRIAL BY JURY).
PETITION OF RIGHTS,
basis of English and American liberty . . . . . . . 35
PETTY OFFENCES,
summary procedure for . . . . . . . . . 117, 118, 119
PLAYS,
in the Inns of Court . . . . . . . . . . . . 61, 80
PLEADINGS (see PROCEDURE).
POLICE POWER, *
use of, for attack on private property . . . . . . . . 204
POLITICS (see Gover NMENT).
POLLOCK, SIR FREDERICK,
comment on Hobbes's definition of law . . . . . . 10 note
on American expansion of English law . . . . . . 298, 299
opinion concerning Blackstone's Commentaries . . . . 312
PORTALIS, M.,
view of function of the courts . . . . . . . . . . 343
PRACTITIONER “BELOW THE BAR’ . . . . . 58 note
w AVDAX. 423
PRECEDENT (see JUDICIAL PRECEDENT). PAGE
PRIMOGENITURE,
unknown in the United States . . . . . . . . . . 856
PRIVATE tortury (see CoNSTITUTIONS ; REAL PROP-
ERTY),
attacks on . . . . . . . . . . . . 204, 210 note, 295
secured by the constitutions . . . . . . 207, 208, 209, 213
stability of, basis of American prosperity . . . . . . 211
Sir Henry Maine's opinion . . . . . . . . . . . 211
essential qualities of all property . . . . . . . . . 238
predicted changes in law of . . . . . . . . . . . 885
PROCEDURE (see CIVIL PROCEDURE; Codific ATION; CRIM-
INAL LAW AND PROCEDURE),
pleadings in courts of justice . . . . . . . . . . . 81
codification of the law of . . . . 183, 260 note, 371, 372, 373
(see CoDIFICATION).
David Dudley Field’s labors . . . . . . . . . . . 183
amendments in law of . . . . . . . . . . . . . 870
PROFESSION (see INNs of Court ; LAwYERs; LEGAL
EDUCATION).
PROPERTY (see CoNSTITUTIONs; EMINENT DOMAIN; PRI-
* VATE PROPERTY; REAL PROPERTY; SoCIALISM).
PROUDHON,
famous maxim concerning property . . . . . . . . 213
PRUSSIA,
the Prussian code . . . . . . 258
PUBLIC CORPORATIONS (see CoRPORATIONs).
QUEEN'S COUNSEL (see INNs of Court; LAwYERs),
highest in rank in the profession . . . . . . . . . 53
of comparatively modern origin . . . . . . . . . 69
Lord Bacon the first . . . . . . . . . . . . . 69
difference between serjeant-at-law and . . . . . . . 70
position outside of the profession . . . . . . . . . . 70
assumed to be in the Service of the queen . . . . . . 70
RAILWAYS,
effect of, upon our laws . . . . . . . . . . . . 220
upon the practice of the law . . . . . . 221, 222, 223
upon our national unity . . . . . . . . . . . . 224
READER,
in Inns of Court . . . . . . . . . . . . . . . 79
how chosen . . . . . . . . . . . 79
READINGS AND MOOTINGS,
ancient legal education in the Inns of Court . . . . . . 78
what they consisted of . . . . . . . . . . . . . 79
original object . . . . . . . . . . . . . . . 79
disuse . . . . . . . . . . . . . . . . . . 80
424 IZVZ) F.X.
REAL PROPERTY (see PRIva TE PROPERTY; REGISTRY
SYSTEM),
unsatisfactory condition of law of .
two great classes of property.
doctrines of chancery .
sources of complexity .
changes and amendments . . . . . 240, 241 note, 352, 353,
uses those of property only . . . .
PAGE
238
238
238
239
385
240
American law as compared with English . . . . . 241 note
distress for rent . . . . .
homestead and other exemption laws . . . . . . . 860,
RECORDS (see REPORTs),
early English judicial . . . . . . . . . . .
REFORM, LAW (see BACON ; BENTHAM ; CASE-LAW ; CODI-
FICATION ; LAw; LEGISLATION ; REPORTING),
358
361
28, 29
the true motto of the legal reformer 347
REGISTRY SYSTEM,
security of titles to lands by . . . . . . . . . . . 852
RENT,
distress for . . . . . . . . . . © 358
REPORTING (see CASE LAw; REPORTs),
evils of system of . . . . . . . . . 266, 267
resolution of American Bar Association . 267
remedy devised by English bar . . . . 279
action of English bar concerning system of .
the system adopted in France . . . . . . . . . 280 note
280
in Norway and Sweden . . . . . . . . . . .281 note
in Denmark . . . . . . . . . . . . . . 281 note
in Italy . . . . . . . . . . . . . . . 281 note
present English system
conclusions concerning . . . . . . . .
wisdom of written opinions .
manner of . tº e e º e º sº e e º º e e
REPORTS (see ARGUMENTs; JUDICIAL PRECEDENT: OPIN-
IONs; RECORDs; REPORTING),
importance and value of . . . . . 31 note, 88, 174, 234,
regular series from Edward II.'s reign . . tº ſº e
marvellous multiplication . 87, 133, 174, 233,265, 266, 285, 288,
344,
a grave problem tº e º 'º º º tº e
effect of doctrine of judicial precedent . . . . . 285,
annual rate of increase . e e & e
publication a continuing necessity . . . . . . 175, 283,
legislative restriction on publication
resolution of American Bar Association
282
282
282
289
270
132
380
134
286
issue of the existing situation . . . . . . . . . 176,
of inferior courts • & e º 'º e
deterioration of modern reports . . . . . . . . .
174.
343
287
289
288
284.
189
JAWADA. Y. 425
REPORTS, - continued. PAGE
publication of dissenting opinions . . . . . . . . . .284
American law and chancery . . . . . . . . . . . 378
REWELS,
in the Inns of Court . . . . . . . . . . . . 61, 80
RIGHTS,
Source and evidence of individual . . . . . . . . . 32
courts established to protect and enforce . . . . . . . 152
equal rights guaranteed by fundamental law . . . . 353 note
RINGS,
given by Serjeants on call to the bar . . . . . . 54 note, 71
ROMAN LAW (see CoMMON LAW ; LAw),
our law distinct from . . . . . 22, 23
not inferior to . . . . . . . . . . . . . . 143
at one time Superior to the common law . . . . . . . 169
basis of systems of continental Europe and South American
States . e e s a e e º e e . . 22
excluded from England . 24, 25, 159
as an element of instruction . . . . . . . . . . . . 86
doctrine of judicial precedent . . . . . . . . . 132, 286
great bulk of . . . . . . . . . . . . . 270
use of, in the work of codification . . . . . . . . . 345
ROMILLY, SIR SAMUEL,
illustration of conservatism of the English people . . . 325
high standing as lawyer . . . . . . . . . 327
his description of a visit to Bentham . . . . . . . 333 note
ROYAL COMMISSION OF 1866 . . . . . . . . . . .277
ROYAL COURTS OF JUSTICE,
removal of the great courts into new building . . 35, 112, 113
history of the new Law Courts Building . . . . . . 113, 139
inauguration ceremonies . . . . . . . . . 113, 140
the Queen’s speech . . . . . . . . . . . 140
the Lord Chancellor’s speech . . . . . . . 140, 141
address of the Lord Chief Justice . . . . . 113, 142
RUSSELL, I.ORD WILLIAM, -
beheaded on Lincoln's Inn Fields . . . . . . . . . 49
ST. LEONARDS, LORD . . . . . . . . . . . . . 239
SALES,
law of, uncertainty . . . . . . . . . . . . . 286 note
SAVIGNY,
conception of law . . . . . . . . . . . . . . 881
SCIENCES,
contributions of America to . . . . . . . . . . . 377
SCIENTIFIC JURISPRUDENCE (see JURISPRUDENCE;
LAW),
a necessity . . . . . . . . . . . . . . . . 886
426 ZAVNOAZ X.
SCINTILLA DOCTRINE, - PAGE .
in jury trial . . . . . . . . . . . . . . . . 130
SCOTLAND,
number of land owners . . . . . . . . . . . . 856
SECESSION, w
in United States . . . . . . . . . . . . . . . 148
SELBORNE, LORD,
regard for American jurists . . . . . . . . . . 187 note
SELDEN, JOHN,
had lodgings in the Inner Temple . . . . . . . . .
SERJEANTS-AT—LAW (see BARRISTERs; INNs of CourT;
LAwYERs; QUEEN’s CounsEL),
rank of . . . . . . . . . . . . . 53, 68, 69, 70
ceremonies previous to creation of . . . . . . . . 72 note
on creation of . . . . . . . . . . . . . . 71
oath required of . . . . . . . . . . . . . . 70 note
entrance fee . . . . . . . . . . . . . . . . 72
retaining fees . . . . . . . . . . . . . . 72 note
rings given by . . . . . . . . . . . . . 54 note, 71
judges Selected from . . . . . . . . . . . 30, 55, 69
independent of the Sovereign . . . . . . & ©
distinguished from other members of the bar . . . . . 69
difference between Queen’s counsel and . . . . . . . 70
rank independent of the profession . . . . . . . . 70
antiquity and decay of the Order . . . . . . . . 55, 69
causes of decline . . . . . . . . . . . . . . 69
approaching extinction . . . . . . . . . . . . 56
the Order in America. . . . . . . . . . . . . . 57
SERJEANTS’ INN,
three different clubs or societies . . . . . . . . . 72
entrance fee required . . . . . . . . . . . . . 72
sale of . . . . . . . . . . . . . . . . . . 73
SHADWELL, -
had chambers in the Middle Temple . . . . . . . . 100
SMITH, SYDNEY,
picture of English laws at beginning of this century . . . 357
SHERIDAN,
student at the Middle Temple . . . . . . . . . . 100
SIDNEY, PHILIP,
member of Gray’s Inn . . . . . . . . . . . . . 95
SOCIALISM (see PRIVATE PRoPERTY),
relation to attacks on private property . . . . . . . 204
unpopular in America. . . . . . . . . . . . . . 357
SOLICITORS (see LAwYERs),
officers of the court of chancery . . . . . . . . . . 52
SOURCE OF LAW . . . . . . . . . . . . . 13, 249
95
AV/OAZ X. 427
SOUTH AMERICAN STATES, PAGE
legal systems of . . . . . . . . . . . . . . . 22
SOUTHEY,
was entered at Gray's Inn . . . . . . . . . . . 100
SPAIN,
adopted the Roman law . . . . . . . . . . . 22
STAPLE INN, . . . . . . . . . . . . . . . 62, 104
STAR CHAMBER COURT . . . . . . . . . 117 note
STARE DECISIS (see JUDICIAL PRECEDENT).
STATE (see CHURCH AND STATE; GoverNMENT).
STATES (see UNITED STATEs).
STATUTE–LAW (see CASE-LAw; CoMMON-LAw; LAw),
One of the great divisions of the law . . . . . . 176, 267
power of courts to declare statutes void . . . . . 200 note
Bacon’s plan of dealing with . . . . . . . . . . 273
Lord Westbury’s scheme . . . . . . . . . . 277 note
STATUTES (see STATUTE-LAw).
STEPHEN, SIR JAMES,
views on codification . . . . . . . . . . . . . 260
Opinion as to Bentham’s influence . . . . . . . . . .316
criminal law of England . . . . . . . 365, 366, 369
STORY, JUSTICE,
extract from Webster's eulogy . . . . . . . . . . . 186
Works of . . . . . . . . . . . . . . . . . 380
STRAND INN (see CHESTER INN).
STUDENTS (see INNs of Court; LEGAL EDUCATION),
in Inns of Court, number . . . . . 51 note, 64
admission . . . . . . . . . . . . . . . 90
rank among members of Inns of Court . . . . 53
mode of life and study . . . . . . . . 64, 104–107
keeping terms . . . . . . . . . . . . . . 105
call to the bar . . . . . . . . . . . . 108, 106
SUITS (see ACTIONs). ſº
SUMMARY PROCEDURE,
for petty offences . . . . . . . . . . . 117, 118, 119
SUPREME COURT OF THE UNITED STATES (see CoN-
STITUTIONs; UNITED STATEs),
practice as to oral arguments, etc. . . . . . . . . 192, 193
Yale University well represented . . . . . . . . . 388
SWEDEN (see Norway AND SwedEN).
SWISS CANTONS,
of Uri and Appenzell . . . . . . . . . . . . . 161
TABARD INN . . . . . . . . . . . . . . . 38 note
TALLEYRAND,
observation concerning Bentham . . . . . . . . . 332
428 AVDAEX.
-ºr-us
TANEY, CHIEF JUSTICE, PAGE
opinion of trial by jury . . . . . . . . . . . . 167
TAXATION,
use of the power for attack on private property . . . . 204
TELEGRAPH,
communication, by, effect upon our laws . . . . . . 220
effect upon the practice of the profession 221,
222, 223
effect on our national unity . . . . 224
TEMPLE (see INNER TEMPLE: INNs of Court; MIDDLE
TEMPLE),
whence name of the Society derived . . . . . . . . 39
antiquity of . . . . . . . . . . . . . . . . 62
Inner Temple and Middle Temple . . . . . . . . 67
TEMPLE CHURCH,
built by the Knights Templars . . . . . . . . . . 75
OWnership and use . . . . . . . . . . . . . . . 75
TENURE,
of judges . . . . . . . . . . . . . . 119, 131 note
TENURE, DOCTRINE OF,
result of the feudal system. . . . . . . 169
TEXAS, REPUBLIC OF,
homestead act . . . . . . . . . . . . . . . 360
TEXT-BOOKS (see LEGAL EDUCATION: LEGAL LITERATURE),
place in legal education tº e º e º O e e
Specially designed for teaching . . . . . . . . . 87, 88
as literary authorities of our law . . . . . . . 347 note
TEXT-BOOK SYSTEM (see LEGAL EDUCATION : TExT-
Books).
THACKERAY,
account of social-life in the Inns . . . . . . . . 40 note
Occupied chambers in the Temple . . . . . . . . . 102
THAVIES INN, -
antiquity of . . . . . . . . . 37 note, 67 note
THE INCORPORATED LAW SOCIETY . . . . . . 52
THURLOW, LORD CHANCELLOR,
illustration of conservatism of the English people . . . 324
TOOKE, JOHN HORNE,
was entered at the Middle Temple . . . . . . . . . 100
TORTS,
direct personal responsibility for, in our law . . 226, 227 note
TOWN MEETINGS,
in New England . . . . . . . . . . . . . . . 162
TREATIES,
Supreme law of the land . . . . . . . . . . . . 351
170, 239, 355
2
AVADA. Y. 429
TRIAL (see TRIAL BY JURY). PAGE
TRIAL BY JURY (see Courts; JURY), t
in courts of justice . • e e s a e º . . . . 31
Justice Miller's views . . . . . . . . . . . . . 122
Chief-Justice Taney’s opinion . . . . . . . . . . 167
historical development . . . . . . . . . . . . 121 note
essential part of our system and institutions . . . . 121, 123
decline in popular favor . . . . . . . . . . . 120, 121
causes of dissatisfaction . . . . . . . . . . . . 125
defects remediable . . . . . . . . . . . . . . . 131
remedies suggested . . . . . . . . . . . . . . 129
in criminal cases . . . . . . . . . . . . . . . 124
character and intelligence in jurymen . . . . . . . 125
verdict by less than whole number . . . . . . . . . 132
judges, curtailment of powers . . . 125, 126 and note, 167
* 126 and note
instructions by . º
right to grant new trials . . . . . . . . 125, 130
province and duty . . . 127, 128 and note, 130 and note
legislation implying distrust . . . . . . . . 129, 167
scintilla of evidence doctrine . . . . . . . . . . . 130
UNCERTAINTY IN OUR LAWS (see CASE-LAw; LAw).
UNITY (see NATIONAL UNITY).
UNITED STATES (see CoNSTITUTIONs; GoverNMENT),
vast and varied territory . . . . . tº e . 148, 149
popular foundation of political systems . . . . 144, 145, 146
Lincoln’s famous description . . . . . . . . . . . 145
Boutmy’s speculations and fears . . . . . . . . 146, 147
future of institutions of . . . . . . . . . . . . 148
Success of popular institutions . . . . . . . . . . 150
force and strength of . e Լ 150, 151, 153
good laws well administered, importance . . . . . 151, 152
cause of growth and prosperity . . . . . . . . . 150, 211
effect of railways and telegraphs upon national unity. . . 224
English common-law basis of legal systems of . . 27, 115, 134,
- 144, 155, 156, 216, 299
(see CoMMON LAW ; LAw).
importance of this fact . . . . . . . . . . . 155
excellences of English law secured . . . . . . . . 32, 33
Magna Charta part of law of . . . . . . 164, 207, 208
identity of American system with English . 194, 216, 226, 354
American expansion of English law . . . . . 298, 299
excellence of legal systems of . . . . . . . . . . 171
capable of amendment . . . . . . . . . . . 135
general survey of legal systems of . . . . . . . . . 154
expansion of law of . . . . . . . . . . . . . 136, 137
homogeneous character of American legal systems . . . 156
43O AVZ) AX.
UNITED STATES, - continued. PAGE
Supremacy of law in . . . . . . . 224, 227 note
present and future condition gº . . 187, 348
progress of jurisprudence . . . . . . . 186, 187, 348 et seq.
specific contributions to law by . . . . 350, 351, 352, 353 note
local government in . . . . . . . . . 160
independence of federal control . . . . . . . . 163
municipal freedom . . . . . . . . . . . . 163
written constitutions . . . . . . . . . . 15, 196, 197
praised by foreign critics . . . . . . . . . . 202, 211
the federal constitution . . . . . . . . . 163–165, 207
legal education (see LEGAL EDUCATION) . . . . . . 84
tenure and compensation of judges . . . . . 120, 131 note
stable and independent judiciary . . . . . . . . . 119
order of Serjeants-at-law . . . . . 57
duties and responsibilities of legal profession 138, 149, 151, 195, 214
reform in law of procedure (see PROCEDURE) . . . . . 183
Bentham’s influence . . . . . . . . . 337 note
contributions to the arts, Sciences, and literature . . . . 377
law and chancery reports . . . . . . . . . . . . . 378
treaties Supreme law of the land . . . . . . . . . 351
a nation of land proprietors . . . . . . . . . . . 356
national homestead act . . . . . . . . . . . . 861
criminal law in . . . . . . . . . . . . . . . 868
UNITED STATES SUPREME COURT (see SUPREME
- Court of, &c).
UNWRITTEN LAW (see CASE-LAw; CoMMON LAw),
whence derived . . . c 13 note, 229
in what sense the common law “unwritten " . . . . . 27
URI,
Swiss Canton of . . . . . . . . . . . . . . . 161
UTILITY,
and equity, real foundations of law . . . . 348
UTTER BARRISTERS (see BARRISTERs-AT-LAw).
VERDICTS (see JURY : TRIAL BY JURY),
by less number than the whole of the jury . . . . . . 132
VOLUMES, -
number of, in library of Inns of Court . . . . . . 94 note
VOLUNTARY EXPATRIATION (see ExPATRIATION).
WALES, *
number of land owners . . . . . . . . . . . . 356
WEALTH,
monopoly of, in America. . . . . . . . . . . . . 148 °
WEBSTER, DANIEL,
extract from eulogy on Story . . . . . . . . . . 186
JAV/D Aº X. 43 I
WESTBURY, LORD, PAGE
scheme of law amendment . . . . . . . 277,278
WESTMINSTER HALL (see CoMMON LAw; Courts; ROYAL
CourTs of JUSTICE),
history and associations . . . . . . . 108 et seq., 113, 114
earlier uses . . . . . . . . . . . . . . . 108
seat of great judicial courts . . . . . . . . . . 42, 108
chief glory of the place . . . . . . . . . . . . 110
wherein consists its real interest . . . . . . . . . 114
since 1399 devoted mainly to legal uses . . . . . . . 112
distinctive system of law administered therein . . . 110, 115
built by William Rufus . . . . . . . . . . 108, 110
rebuilt . . . . . . . . . . . . . . . . . . 111
existing hall and its uses . . . . . . . . . . . . 111
Hawthorne's impressions . . . . . . . . . . . . . 109
Macaulay’s description . . . . . . . . . . . . 109
removal of courts from . . . . . . . . . . . . 112
WILLIAM OF WYKEHAM . . . . . . . . . . . 111
WILLIAM RUFUS,
builder of original Westminster Hall . . . . . . 108, 110
WISCONSIN,
instructions by the judge in jury trials . . . . . . 126 note
WITNESSES (see Evid ENCE),
laws relating to competency of . . . . . . . . 373, 374
WYCHERLEY, -
had chambers in the Middle Temple . . . . . . . . 100
YALE UNIVERSITY,
inspiring influences . . . . . . . . . . . . . . 888
well represented on Supreme Bench . . . . . . . . 888
YEAR BOOKS,
Bracton, Fleta, and Glanvill not quoted in . . . . . 23 note
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