« ΠροηγούμενηΣυνέχεια »
at a nobleman's country seat: Buckland and Stephenson got into a discussion on some point of natural history, and soon the naturalist silenced the railroad man. The next morning, Follett, finding Stephenson in a deep study, asked him what he was thinking about. "About the discussion last evening with Buckland,” was the reply; "he got the bettter of me, but I think I was right." "Well,” replied the lawyer, “I don't know anything about natural history, but talking is my business, and if you will give me the facts, I will give Dr. Buckland a trial.” Thereupon Stephenson gave him the points of the controversy, and a few minutes later, at the breakfast table, the conversation was turned to the subject of the last night's dispute, and then ensued a discussion between Buckland and Follett, and in a short time the naturalist had to acknowledge himself beaten in his own chosen field; and then Follett turned to Mr. Stephenson and said: “Well, what do you think of that?" “I think,” was the reply, “that of all the gifts on earth, the gift of gab is the greatest.” Now, I think the answer missed the point. It was not facility of speech, which every old gossip in the country shared with the great lawyer, but the marvelous ability to quickly master the facts in a branch of knowledge of which he was ignorant, and arrange those facts in a convincing, logical sequence, and the corresponding power to detect error in the illogical arguments of his opponent.
Another consideration renders legal acquirements in a business man of great value. In all enterprises of great pith and moment, many questions of law are involved which a purely business man is not fitted to deal with, but if he has had a legal as well as a business education, he decides the legal as he does the business questions, as he meets them, and his operations prossess a unity, precision, boldness and celerity, not possible to a man destitute of a legal training. Keeping in mind then, that the lawyer must be educated to see legal things, facts and principles, their application, relation, connection and limitation, quickly and accurately, must possess the power of clear, simple statement, both of law and fact, what special education will secure these results? We have spoken of the general education needed by the lawyer, what of his technical legal education? The law of the State recognizes two courses, one a two years' course of study in any recognized law school of this state, and the other a course of study equivalent thereto, in the office of a licensed lawyer of this state, under his direction and supervision, submitting to satisfactory examinations by him at convenient intervals. Prior to the adoption of the present rule, in October, 1888, the student was required to 'pursue for two years, a regular course of law studies in the office of some lawyer in "general practice.” The requirements of this rule had practically become as obsolete, As the wager of battle as a method of settling legal difficulties. The student was always presumed by the “lawyer in general practice” to be studying in his office if he came there once in six months, to borrow a Blackstone or Kent, no matter though all the rest of the time he was teaching school, plowing corn or behind the merchant's counter. The certificate was never refused. The present rule, I suppose, intends to secure two years' study by a student in the office of a licensed lawyer, who shall take the actual directions and supervision of his studies, and examine him at such frequent intervals, that the instruction the student may receive from the lawyer, would be some equivalent to that of the law schools, by which private instruction is measured. But I submit that this rule will fail of any such effect. It is too vague to be efficient. “To submit to satisfactory examinations at convenient intervals.” “Satisfactory” to whom, the court, lawyer or student? “Convenient intervals.” Once a day, month or year? “Convenient” to whom, the lawyer or the student? Who does not know that this whole thing of studying under a lawyer and submitting to any real examinations, is the broadest of broad farces? It is said that in the later days of pagan Rome, two augurs could not meet without a broad smile at the ludicrousness of their occupation. I am sure that when this rule was formulated, a broad smile must have gone around the bench of our Supreme Court. I am not blaming the court, perhaps it was the best thing they could do. As a partial remedy, I cannot help thinking of a remark by that genial but unregenerate heathen, Bob Ingersoll, that whenever he read a miracle, he felt like cross-examining the narrator. The Appellate Court cannot get hold of the "licensed lawyer" who gives the certificate, but the applicant is at hand, and a five minutes cross-examination of him will show in ninetynine cases out of a hundred, that the direction and supervision of the lawyer consists, in telling the student to begin by reading Blackstone, a very poor piece of advice, and telling him where in the library to find the book, and that examinations at convenient or any other intervals, are as absolute fictions of the law as ever were our venerable friends, John Doe and Richard Roe, now happily relegated to the domain of legal history. If the student under such circumstances becomes a lawyer, it is no thanks to the lawyer, but is due to his own unaided strength.
But perhaps some one will say, the student in an office gets a practical education. Practical in what? Running errands, and perhaps, if in a country office, sweeping it out occasionally. Every practicing lawyer knows that a student does not know enough about drawing pleadings and other legal papers to be of any assistance to him. He can do it in half the time he can tell a student how to do it, and seldom asks him more than once to do anything of the kind.
We all know what potent factors in progress are habit, emulation and necessity. The solitary student in an office loses much of this impulse to study. There is no pressing necessity for getting a lesson to-day; it may go over till to-morrow or next day. He may study one hour to-day, ten to-morrow, and none next day. He lacks habits of systematic study, the stimulus of the example of ambitious young men pursuing the same studies, the direction and supervision of his studies, all of which, and much more, he would get in a well regulated law school.
What do these law schools offer the legal aspirant as a preparation for his life work? The methods of instruction in these schools are by recitations from approved text books, as in all the schools in this State, by lectures, as in some schools, and by a combination of lectures and recitations, as in others. There can be no doubt of the very decided superiority of recitations over lectures as a means of legal instruction, at least for such students as attend the Illinois law schools. No one is fitted to gain very much advantage from lectures on any subject, unless he has had considerable previous education on that topic-at least enough to understand its general principles; and has, moreover, a sufficient general education and alertness of mind to instantly seize the idea of the lecturer, and connect or corrolate it with the ideas he already has, and without which it is all mere intellectual rubbish. Instruction, to be of any value, must be based on a knowledge of what the student already possesses. This individual knowledge of the pupil is not possible in the lecture room. From my own experience, and from the concensus of all students who have attended both the lecture and recitation school, I am certain lectures are not an efficient means of legal education. The student does, indeed,
get the stimulus of other minds pursuing the same subject, the inspiration of the teacher's voice, presence and example, and the actual direction of his studies, and, of course, if a diligent student, he will get much from the lectures themselves, but for the loafer, the lecture room is paradise. No one knows, or apparently cares, whether he has studied the lesson or not. He may be asked a question once a week on a “quiz,” but he will take his chances of that.
All the law schools in this State are conducted on the recitation system, their course covering two years. I have thought I might best illustrate their work by that of the Bloomington Law School, with which I have been connected for several years as a teacher. We do not seek to cover a great number of subjects, but we do try to teach most thoroughly the fundamental principles of the law. These are gone over so carefully, with such thorough analysis, exposition, discussion and reviews of the subject, that the student, in his two years course, has laid a solid foundation of legal principles, by the aid of which, he can safely and intelligently tread his way through the intricate, and often contradictory, mazes of reported
There never was a time when such knowledge was so essential as to-day. Unless the lawyer is able to test these cases by a knowledge of those rules that lie at the foundation of our jurisprudence, he will prove an unsafe and dangerous counsellor. These principles must become so familiar to him, that he instinctively refers to them for his guidance. With their knowledge, he is fitted to enter upon any of the manifold special fields of legal study. Without them, he is like a rudderless ship upon a boundless ocean.
Let me illustrate our methods. Take the subject of common law pleading The object of pleading is to apprise the court of the subject matter of litigation. I have never known a case so complicated, or so abstruse, that the court could not, in a ten minutes' talk, even of a dull lawyer, find out what the law suit was about. It is a reproach to American bar that a subject, so simple in its nature, should, by our practice, have been made so cunningly and elaborately artificial, that the settling of pleadings, ascertaining the mere forms of litigation, should occupy so much of the time of our courts, and the subject, from its very artificiality, should have become one of the most difficult of acquirement in legal education. There is, however, nothing so mortifying to a young lawyer, as to find his pleadings wrong. Clients, as well as the general public, are quite apt to conclude that the lawyer who does not know enough to tell the court, in writing, what his lawsuit is about, does not know enough to be entrusted with its management; that if he is ignorant of the form of his case, he certainly knows little of its substance. The Bloomington school, therefore, gives unusual prominence to this subject, knowing that the pupil will, in its study, acquire much of the substance of the law, as well as the forms of litigation. In the winter term, the juniors have Stephens, the most elementary work on pleading, and in the spring term, Gould, going into the subject more in detail, and the seniors have Chitty two terms. This, supplemented throughout the two years by the preparation by the student of pleadings, from given cases in the moot court, and criticism on them by one of the faculty, gives a drill in common law pleading not surpassed in this country. Take another subject, elementary law. This we have through the whole course. Walker, Blackstone and Kent, each succeeding book a review of the previous one by a new work, treating the same subject in a more extended form. Or take the great subject of Torts. Besides that topic in Walker, Blackstone and Kent, we have Bigelow, a 12mo. volume of 336 pages, giving the whole subject in a condensed form, and then a review of the whole subject in Judge Cooley's well known treatise. This will, perhaps, sufficiently illustrate our plan of study. Keeping in mind that the student had better know thoroughly a few things, especially if they are fundamental, than many things superficially, you will see the philosophy of our course.
“Learning is the process of forming ideas." The teacher's part in this process is to stimulate the mind of the pupil to learn for himself. This he does, first, by ascertaining what the pupil already knows, and then by unfolding to him the next step he should take. If he does not fully grasp the proposition under discussion, the teacher seeks to remove the difficulties by analyzing it, illustrating it by pertinent examples, holding the mind of the pupil to the subject long enough to drive it home, so that he may get a clear and distinct conception of the principle, its connection with what he has already learned, and its limitation. Habits of accurate expression are also insisted on. Loose, illogical statements, always the reflection of loose, illogical thinking, are not allowed to pass unchallenged. The student is required to clothe his thoughts in appropriate language. These things are never attempted in an office, and are impossible in a lecture room.
STUDY OF CASES.
It connection with Walker, Blackstone and Kent, the student is obliged to make a careful study of the Illinois statutes and cases conjointly with the subjects treated by these authors, thereby receiving a practical drill in the use of cases, learning to make clear statements of the facts, the material questions of law and fact, the decision of the court, what was necessary to the decision of the case, distinguishing between the decision of the court, and the argument of the judge writing the decision, etc.
Through the Moot Court we attempt to secure a practical application of the principles of the law. The court is held once a week by one of the faculty. The first six or eight weeks are devoted to a study and discussion of the practice in justices' courts and courts of record, from topics, mostly from our statutes, previously assigned to the students. Then the students are required to prepare and submit to the court, wills, other legal papers and statements of legal controversies, and from these statements and others prepared by the court, cases are assigned to the students who prepare pleadings, bring them to an issue, prepare briefs, argue the cases, and take all steps that could be taken in a cause from commencing a suit before a justice of the peace, or filing a præcipe, to a final argument in the Supreme Court, in all cases conforming as nearly to the practice of our several courts as the circumstances will admit—the court at every stage of the proceeding fully criticising, not only the papers prepared, but the student's thought, manner of presenting his thought and professional bearing.
Our chief reliance as a means of instruction is, recitations from approved text books. We, however, use lectures once a week, to supplement some legal subjects imperfectly taught in the text books used, also on some political and historical subjects. The latter are designed to stimulate the student to investigate for himself our political history, and some of the problems that are now pressing for solution, and some that are just rising into prominence on our political horizon, so that he may become a determining influence, and not a mere party parrot in the community in which his lot is cast. I know it is a favorite piece of advice from the old lawyer to the young practitioner to keep out of politics, advice you may be sure, he never listened to in his youth. I never give that advice to a student, first, because he would not, and second, because he ought not to heed it, if given. We cannot, if we would, separate the profession of the law from polities, the administration of the law in our courts from its formulation by our legislative bodies, and its enforcement by our executive officers. Lawyers make our laws, interpret them, ascertain the rights of litigants under them, best know what laws are needed, and what any statute can accomplish. It is a duty they owe to their profession, as well as to their country to be politicians,—I do not mean by this that they shall always be running for an office. Some of our most potent politicians, as the elder Blair and Thurlow Weed, never held an office, but that, whether Republican or Democrat, Prohibitionist or Mugwump, or what not, it is their duty to make themselves felt as an inspiration for political fidelity, for law and for liberty, to the political bodies with which they are connected. The courses of all our law schools are too full to allow them to do more than point out to the student a few of these subjects, allied to his profession, with which he ought to become familiar.
If the student would progress beyond the A, B, C of his profession, he must be made to see the unity, the universality, the reign of law, so grandly expressed in Hooker's stately sentences: “Of law there can be no less acknowledged that her seat is in the bosom of God, her voice is the harmony of the world. All things in heaven and earth do her homage; the very least as feeling her care, the greatest as not exempt from her power. Both angels and men and creatures of what condition soever, though each in different sort and manner, yet all, with uniform consent, admiring her as the mother of their peace and joy.” He must realize the moral order of the universe, its all-compelling, irresistible power, as it sweeps through the centuries. Clay and Webster settled slavery with their panaceas of peace, compromising the uncompromisable; Jefferson Davis, by secession, and the Republicans of '60, by excluding it from the Territories. Mere pasteboard cards to dam a Niagara. As mighty changes are passing before our eyes, if we had the open vision to see them. We pass Inter-State commerce laws to destroy the barriers set up against free competition. They only accelerate the formation of vast railroad combinations, so that even the blind can see that, in a short time, instead of three or four hundred, there will be only three or four lines in the whole United States, completely annihilating competition. What will be the end ? A gigantic trust, a monopoly of the whole transportation of the country under the control of one man, State socialism, ownership by the people, or something the wisest do not dream of. Who can tell ? Happy he who can see even the next step to take.
The student must realize the essential justice of the law. We demand obedience to the law. How can we demand loyalty to that which is not essentially right? If the law is not justice, then the people ought to take the advice of Jack Cade's rabble,
• The first thing we do let's kill the lawyers.". The law is not a trick to catch the unwary. It is not, as the farce has it, "a sort of hocus pocus science, that smiles in your face while it picks your pocket.” The