Sivut kuvina

cedents for future use, will greatly accelerate his progress in the art, and strengthen his confidence in his professional attainments. To heighten the value of this branch of his studies, the pupil would do well to subjoin a succinet statement of the facts on which each draught is founded, with the result of his investigation into those cases to which his preceptor may have referred, as authoritative illustrations of the law, and the language of the precedent.

Next to a clear perception of the principles of law, a distinct recollection of the instances in which those principles have been developed or confirmed, is indispensable to that readiness and ability which is the only sure foundation of future success. It is a maxim of metaphysics well understood, but not sufficiently regarded, that the faculty of the human mind called memory, finds the best auxiliary to the competent discharge of its functions in the association of ideas. The business of common-placing, therefore, is not alone to be recommended as a means of amassing extensive information within accessible and convenient limits, but it is still further valuable to the law student, inasmuch as the operation of reading, forming an abstract of what is read, and then recording it, in his own language, supplies a series of associations which will do much towards preventing the escape of the principles from the mind. This then is a species of study which should be diligently pursued, and will not be relinquished even after the days of pupilage are past by those who have learned to appreciate its importance.

It is bous, that reading, to some considerable extent, is incident to the modes of study already pointed out; but it must be pursued for its own sake, and form part of the general system. The modern library is amply stored with elementary works upon every branch of the law, but the pupil must guard himself against an indiscriminate and desultory perusal of the most popular books; and bear in mind the observation of the elegant author of Eunomus, that "knowledge is not so much increased by a continued accession of new ideas, as by accurately comparing the relations of those ideas which we have already received." He must select, under the advice of his preceptor, and with reference more particularly to the line of practice in which he intends to engage, the best productions in which the principles, the maxims, and the decisions upon that branch of the law of which he is pursuing, are most faithfully recorded, and most ably expounded. Here too the common-place book must become the depository of the student's labours. The knowledge of the principles of the law will enable the student to argue scientifically, but he will be required to support his arguments by referring to legal authorities, and therefore he should have ready access to them, which is greatly facilitated by the use of a common-place book. Upon this part of the subject the preface to Roll's Abridgment may be quoted to advantage. The writer says."Touching the method of the study of the common law, I must in general say thus much

to the student thereof. It is necessary for him to observe a method in his reading and study; for let him assure himself, though his memory be never so good, he shall never be able to carry on a distinct serviceable memory of all, or the greatest part he reads, to the end of se ven years, nor a much shorter time, without help of use or method; yea, what he hath read seven years since, will, without the help of method, or reiterated use, be as new to him as if he had scarce ever read it. What he reads in the course of his reading, let him enter the abstract or substance thereof, especially of cases or points resolved into his common-place book under their proper titles; and if one case falls aptly under several titles, and it can be conveniently broken, let him enter each part under its proper title; if it cannot well be broken, let him enter the abstract of the entire case under the title most proper for it, and make references from the other titles unto it. It is true a student will waste much paper this way, and possibly in two or three years will see many errors and impertinences in what he hath formerly done, and much irregularity and disorder in the disposing of his matter under improper heads; but he will have these infalble advantages attending his course :-first, in process of time he will be more perfect and dexterous in this business; secondly, those first imperfect and disordered essays will, by frequent returns upon them, be intelligible, at least to himself, and refresh his memory; thirdly, he will by this means keep together, under apt titles, whatsoever he hath read; fourthly, by often returning upon every title as occasion of search or new insertions require, he will strangely revive and imprint in his memory what he hath formerly read; fifthly, he will be able at one view to see the substance of whatsoever he hath read concerning any one subject, without turning to every book (only when he hath particular occasion of advice or argument, then it will be necessary to look upon that book at large which he finds useful to his purpose); sixthly, he will be able upon any occasion suddenly to find any thing he hath read, without recoursing to tables or other repertories, which are oftentimes short, and give à lame account of the subject sought for."

If further argument were necessary to enforce the importance of common-placing, the example of lord keeper Guildford might be cited. In the very amusing and instructive life of that noble and learned personage, by his relation the Hon. Roger North, it is said, that "it was his lordship's constant practice to common-place as he read. He had no bad memory, but was diffident and would not trust it. His writing in his common-places was not by way of index, but epitome; because, as he used to say, the looking over the common-place book on any occasion, gave him a sort of survey of what he had read about matters not then inquisited, which refreshed them somewhat in his memory, the great art of common-placing lying in the judicious, but very contracted note of the matter."

But however vast his acquisitions, unless the owner has learnt the art of using them, he

*North's Life of Lord Keeper Guildford, 1 vol. 20.

may still be poor, and perplexed with apparent privations, in the midst of his abundance. In order, therefore, that the student may learn to avail himself to the utmost, of the legal lore which he has amassed, he should accustom himself to the use of it in oral discussion. A prejudice exists against debating societies, and it is not intended to deny that some of the institutions so called, are in some respects exceptionable. Admitting an almost boundless range of subjects, the sober habit of mind induced by the studies of the office and the closet is invaded, and its energies let loose to wander through the tempting regions of general literature, taste, politics, and metaphysics. Not that these things are obnoxious in themselves, but when their claim to paramount attention is listened to with a willing and an approving ear, the mind becomes distracted, and its best powers weakened by the multiplicity of demands upon it. True, the practised debater may acquire a facility of speech and a rhetorical diction, by putting forth his strength upon all occasions and upon every theme; but the precision and force of reasoning, which is the primary distinction of the sound lawyer, and the modes of expression best calculated to convey the thoughts of the advocate to the court, can only be secured by confining these exercises within the limits of legal investigation. It may be thought a hard condition, and scarcely worth the reward which is promised for its observance, to divorce himself from those intellectual indulgences which were the delight of his leisure before scholastic duties had given place to professional employments, but such is the condition, and must rarely be departed from, and then only as a temporary relaxation from protracted study.

In addition to the practice of regular and formal discussion at appointed times, and upon questions previously propounded, the pupil may, if he is disposed to blend professional improvement with the enjoyments of social intercourse, derive considerable advantage by conversations upon points and principles of law, presuming that his companions will be chosen from among those who are treading the same path with himself. Such was the habit of mind indulged by lord keeper North, whose example has before been referred to. "He fell into the way of putting cases (as they call it), which much improved him, and he was most sensible of the benefit of discourse; for I have observed him often say, that (after his day's reading) at his night's congress with his professional friends, whatever the subject was, he made it the subject of discourse in the company; for (said he) I read many things which I am sensible I forgot, but I found withal that if I had once talked over what I had read, I never forgot that."✦

It is a prevailing notion, that an attendance upon the courts during the sittings in term and at nisi prius, is indispensable to the complete education of the law student; but this may be very safely postponed till he is well acquaint ed with the general principles and practice of the law, especially as unless he is singularly fortunate, he will have sufficient time for this

mode of improvement after he is called to the bar. However, it will be proper that he should attend a short time before he becomes a member of the court, to familiarize his mind with the mode of conducting business. On these occasions he should take notes, not only of the points of law and practice, but also of the facts and evidence in the trial of causes at nisi prius. A careful attention to these points will teach him the art of examining witnesses, and extorting the truth from the reluctant lips of a dishonest partizan. It will also enable him to estimate the value of evidence, trace its bearings upon the question at issue, and give him efficiency and facility in business.

The plan of study, of which the outline has thus been sketched, though designed to comprehend the extensive range of the common law, will be found to include every other department of the profession. The mere conveyancer will not think it necessary to attend the courts, nor perhaps, expedient to participate in the exercise of oral discussion, but ali that the scheme contains besides, is applicable to this use, and may be adopted with advantage. The doctors of civil law, whose fitness to practice is ostensibly completed at the university, and nominally ratified by the title of honour attached to their names, will enter the ecclesiastical or admiralty courts with more confidence, if their general acquirements are strengthened by the practical knowledge, to be obtained by the mode of self-education recommended; and the business of the equity barrister assimilates itself so closely to that of the common law barrister, that the preparation for either need differ only in the detail.

The student will probably be aware, that it will be difficult to apportion his time to the different species of study, and adhere to that apportionment rigidly; because there must be occasions when the fluctuating business of the office will produce considerable irregularity of employment. This however must be avoided, as far as it can be, consistently with a due attention to that business; for the progress in any art or science is greatly accelerated by a well-regulated system of pursuit. This, pursued with undeviating assiduity, must lead to that proficiency which can alone enable the student to assume and maintain that station in his profession, which will ensure a gratifying return for all his previous labours; and, hav ing attained which, be may rationally indulge the hope, that the same industry and perseverance continued thenceforward, will realize those anticipations of future honour and distinction which cheered and stimulated him in the outset of his career.

The object of this note being not only to point out how the study of the law should be conducted so as to ensure the most beneficial results, but also to recommend an unremitting attention on the part of the student, any thing which tends to remove the prejudice which still prevails to some extent against the science of special pleading, may greatly assist that recommendation. The testimony of sir William Jones, therefore, who, though known as a law

* See further North's Life of Lord Keeper Guildford, p. 19-27.

yer, was still more distinguished as a scholar, statesman, and philosopher, must have con.siderable weight on such a subject. His prefatory discourse to his translation of the speeches of Isæus has the following passage. (4 vol. quarto ed. p. 34. 9 vol. octavo ed. p. 50.)

"I shall not easily be induced to wish for a change in our present forms, how intricate soever they may seem to those who are ignorant of their utility. Our science of special pleading is an excellent logic; it is admirably calculated for the purposes of analysing a cause, of extracting, like the roots of an equation, the true points in dispute, and referring them, with all imaginable simplicity, to the court or the jury; it is reducible to the strictest rules of pure dialectics, and if it were scientifically taught in our public seminaries of learning,

would fix the attention, give a habit of reasoning closely, quicken the apprehension, and invigorate the understanding, as effectually as the famed peripatetic system; which, how ingenious and subtile soever, is not so honoura ble, so laudable, or so profitable, as the science in which Littleton exhorts his sons to employ their courage and care. It may unquestionably be perverted to very bad purpos es, but 30 may the noblest arts; and even eloquence itself, which many virtuous men have for that reason decried. There is no fear, however, that either the contracted fist, as Zeno used to call it, or expanded palm, can do any real mischief, while their blows are directed and restrained by the superintending power of a court."



LAW, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,-as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of [*39] vital economy; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But

laws, in their more confined sense (1), and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker's will.

This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created

man, and endued him with free will to conduct himself in all parts [40] of life, he laid down certain immutable laws of human nature, whereby that free will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those. laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those rela

(1) This, perhaps, is the only sense in which the word law can be strictly used; for, in all cases where it is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from those which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws: he had only to will, φως γενέσθω και εγένετο, When we apply the word law to motion, matter, or the works of nature or of art, we shall find in every case, that with equal or greater proprie ty and perspicuity we might have used the words quality, property, or peculiarity.-We say that it is a law of motion, that a body put in motion in vacuo must for ever go forward in a straight line with the same velocity; that it is a law of nature, that particles of matter shall attract each other with a force that varies in versely as the square of the distance from each other; and mathematicians say, that a series of numbers observes a certain law, when each subsequent term bears a certain relation or proportion to the preceding term: but, in all these instances, we might as well have used the word property or quality, it being as much the property of all matter to move in a straight line, or to gravitate, as it is to be solid or ex

tended; and when we say that it is the law of a series that each term is the square or squareroot of the preceding term, we mean nothing more than that such is its property or peculiarity. And the word law is used in this sense in those cases only which are sanctioned by usage; as it would be thought a harsh expression to say, that it is a law that snow should be white, or that fire should burn. When a mechanic forms a clock, he establishes a model of it either in fact or in his mind, according to his pleasure; but if he should resolve that the wheels of his clock should move contrary to the usual rotation of similar pieces of mechanism, we could hardly with any propriety established by usage apply the term law to his scheme. When law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz. disobedience and punishment.

Hooker, in the beginning of his Ecclesiastical polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers who treat law as a science begin with such an explanation. But the editor, though it may seem presumptuous to question such authority, has thought it his duty to sug gest these few observations upon the signification of the word law. -CH.

tions of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly (2), should hurt nobody, and should render to every one his due; to which three general precepts Justinian (a) has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be ob tained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connexion of justice and human felicity, he has not perplexed the [41] law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own true and substantial happiness." This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this (3); and such of them as are valid derive all

(a) Juris præcepta sunt hæc, honeste vivere, alterum non lædere, suum cuique tribuere. Inst. I. i. 3.

(2) It is rather remarkable, that both Harris, in his translation of Justinian's Institutes, and the learned Commentator, whose profound learning and elegant taste in the classics no one will question, should render in English, honeste vivere, to live honestly. The language of the Institutes is far too pure to admit of that interpretation; and besides, our idea of honesty is fully conveyed by the words suum cuique tribuere. I should presume to think that honeste vivere signifies to live honourably, or with decorum, or bienseance; and that this precept was intended to comprise that class of duties, of which the violations are ruinous to society, and not by immediate but remote consequences, as drunkenness, debauchery, pro

faneness, extravagance, gaming, &c.-CHRISTIAN.

(3) Lord Chief Justice Hobart has also advanced, that even an act of parliament made against natural justice, as to make a man a judge in his own cause, is void in itself, for jura nature sunt immutabilia, and they are leges legum. (Hob. 87.) With deference to these high authorities, I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the supreme power of the state. And if an act of parliament, if we could suppose such a case, should, like the edict of Herod, command all

« EdellinenJatka »