Chapter 9

As introductory to this head, Lord Hale's History of the Common Law may be perused with advantage. It was perhaps a mere sketch, intended to be afterwards filled up and completed. Still, however, it is a work of authority, as indeed is everything which proceeded from the pen of its distinguished author. He is correct and accurate to a remarkable degree. Reeves' History of the English Law is a full and comprehensive history of the English Law, accurate and judicious as well as full. Lord Mansfield is said to have advised its author in regard to its plan and execution. In this work the student is presented with all that is necessary that he should know of the earliest law-books, Bracton, Glanville, and Fleta, carefully collected and presented. The history of the law is separately traced under the reign of each king, and it may be of advantage to read at the same time some good history or histories of England parallel with the work. "Reeves' History of the English Law," says Chancellor Kent, "contains the best account that we have of the progress of the law, from the time of the Saxons to the reign of Elizabeth. It covers the whole ground of the law included in the old abridgments, and it is a work deserving of the highest commendation. I am at a loss which most to admire, the full and accurate learning, which it contains, or the neat, perspicuous, and sometimes elegant style, in which that learning is conveyed." 1 Comm. 508.

Dalrymple's Essay towards a general History of Feudal Property in Great Britain, is a brief but learned and philosophical treatise, which may be followed by Sullivan's Lectures on Feudal Law, a work copious in detail and exhibiting ably, among other topics, the influence of the feudal system upon the Modern Law of Tenures. Sir Martin Wright's Introduction to the Law of Tenures is one of the most accurate and profound of the essays on this topic; and is worthy of the most attentive study. Craig de Feudis was thought by Lord Mansfield much preferable to any judicial work which England had then produced. With these legal treatises on the feudal system may be read with great advantage, simultaneously, Robertson's History of Charles V, and Hallam's History of the Middle Ages.

Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken up in this connection. It is said that until the publication of Blackstone's Commentaries, it was regarded as the best elementary book to be placed in the hands of law students; and we have the authority of Sir William Blackstone for saying that his method was greatly superior to that in all the treatises that were then extant: Blackstone's Analysis, Preface, 6. "His text," says Chancellor Kent, "was weighty, concise, and nervous, and his illustrations apposite, clear, and authentic;" though he adds, "But the abolition of the feudal tenures and the disuse of real actions, have rendered half of his work obsolete," 1 Comm. 509; an objection, in the view we take of legal education, which should rather recommend the work than otherwise.

At the same time with Finch take Doctor and Student by St. Germain--a little book which is replete with sound law, and has always been cited with approbation as an authority.

The Prefaces to the several volumes of Lord Coke's Reports may be read now with great advantage. They contain much interesting information, and strongly impregnated as they are with Lord Coke's abundant learning and love of the law as a science and profession, they form an admirable introduction to The First Institute, or Lord Coke's Commentary upon Littleton's Tenures. It would be advisable, I think, to read first in order the sections of Littleton's Tenures, the original treatise upon which The Institute was a commentary. After that, no time or pains should be spared to master completely The First Institute. If the course now prescribed has been followed, the student will not require to be reminded, that even those parts, which seem to relate to obsolete heads of the law, ought to be read and understood. "There is not," says Mr. Butler, "in the whole of this golden book, a single line which the student will not in his professional career, find on more than one occasion eminently useful." There may be some extravagance in this assertion; but we may nevertheless agree with Mr. Ritso that "there is no knowledge of this kind, which may not, sooner or later, be in fresh demand; there is no length of time or change of circumstances, that can entirely defeat its operation or destroy its intrinsic authority. Like the old specie withdrawn from circulation upon the introduction of a new coinage, it has always its inherent value; the ore is still sterling and may be moulded into modern currency." The opinions of American lawyers confirm this conclusion. It is well known that C. J. Parsons was distinguished for his familiarity with the pages of The Institute. It was Mr. Pinkney's favorite law book; and "his arguments at the Bar," says his biographer, Mr. Wheaton, "abounded with perpetual recurrences to the principles and analysis drawn from this rich mine of common law learning." Mr. Hoffman, in his Course of Legal Study, has also borne his testimony to its importance to the American practitioner. Chancellor Kent seems, as I have intimated in the note, to lean rather against Coke upon Littleton, as an Institute of Legal Education, although he acknowledges its value and authority as a book of reference.

It appears to me that after Coke, Preston's Elementary Treatise on Estates may be read with advantage. He is perhaps unnecessarily diffuse and tautological; but he enters largely into the reasons of the abstruse doctrines of which he treats, and his work is calculated to lead the student to inquire more earnestly into the philosophy of the science. Fearne's Essay on the Learning of Contingent Remainders, should then be well studied. If no other book be read over a second time, it must not be omitted as to this. This volume is occupied in the discussion of points of great difficulty and abstruseness; yet the style is remarkable for clearness and perspicuity, and the reasoning is logical and irresistible. A taste or otherwise, for this book, will test the student's real progress. After Fearne, take up Sheppard's Touchstone of Common Assurances--a work generally supposed to have been written by Mr. Justice Doddridge, and not by William Sheppard, whose name it bears. It is a most valuable book, one of the most esteemed and authoritative of the old treatises. There is an edition by Mr. Preston, but I do not recommend it. Had he annotated in the common way, his labors and references would no doubt have increased the value of the book; but he has taken liberties with the text,--subdividing it, occasionally changing the phraseology, and inserting matter of his own: a course of proceeding in regard to any work, except a digest or dictionary, to which I cannot be reconciled. The Touchstone may be followed by Preston on Abstracts of Title, and Preston's Treatise on Conveyancing.

I think that at this period, as a necessary introduction to the succeeding studies, some works on Equity Jurisprudence should be taken in hand; as the Treatise on Equity of which Henry Ballow is the reputed author. It is the text of Fonblanque's Equity. It had better be read by itself. Disquisitional notes of great length only confuse and confound the student; and Mr. Marvin has well said that Fonblanque's Equity "finally expired under the weight of its own notes." To this add Jeremy's Treatise on Equity, and Story's Commentaries on Equity Jurisprudence. The student may then read with advantage, Powell on Mortgages, with Coventry's Notes. It is to be lamented that Mr. Coventry did not prepare an original work, instead of overwhelming the text of Powell with his learned and valuable labors. Chancellor Kent has remarked, that between the English and American editors it is "somewhat difficult for the reader to know, without considerable difficulty, upon what ground he stands." Like the treatise on Equity, it has been nearly choked to death in the embraces of its annotators. Bacon's Reading upon the Statute of Uses, is a very profound treatise on that subject, though evidently left by its great author in an unfinished state. Sanders on Uses and Trusts, is a very comprehensive and learned work, and the subject, which may be styled the Metaphysics of the Law, requires close attention. Hill on Trustees, is a practical treatise, which may here be read with advantage, as also Lewis on Perpetuities. Sugden on Powers, has been said to be second to no elementary law book. It is a masterly elucidation of the subtle doctrines of the law on the subject of Powers, and is held in the highest estimation. It will perhaps be better appreciated and understood, if with it, or after it, is taken up Chance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and which examines, controverts, and discusses at large many of his positions. Sugden on Vendors and Purchasers may then follow.

The titles on Leases and Terms for Years, and Rent, in Bacon's Abridgment, should be studied. These were the works of Chief Baron Gilbert. After this, Woodfall on Landlord and Tenant.

Roscoe's Treatise on the Law of Actions relating to Real Property, may be read as a convenient introduction to Cruise on Fines and Recoveries, and Pigott on Common Recoveries.

To these, in conclusion of this, by far the most important and fundamental branch of legal studies, may be added, Powell's Essay on the Learning of Devises, and Jarman on Wills.

It will be remarked, that I have not set down in order, any Report Books; it is not that I undervalue that kind of study. It appears to me that in his regular reading, the student should constantly resort to and examine the principal cases referred to and commented upon by his authors. In this way, he will read them more intelligently, and they will be better impressed on his memory. Some reports may be read through continuously; such are Plowden, Hobart, Vernon, and I certainly think, Johnson's Chancery Reports should be thus read. Smith's Leading Cases is an excellent reading-book of this kind. The student of Pennsylvania Law will do well not to omit Binney's Reports. But I assign no particular place to this kind of study, because I think it may be taken up and laid aside at intervals, according to the bent of the student's inclination. When, in any particular part of his course, he finds his regular reading drags heavily--he has become fagged and tired of a particular subject--let him turn aside for a week or two, to some approved and standard Report Book; it will be useful reading, and he will be able to return refreshed to his proper course.

It would extend this Appendix too much, if I were to go over the remaining parts of the prescribed plan, with the same particularity as I have this first and most important branch. It will be sufficient to indicate merely the books, and the order in which they may be most profitably read, under each division.

II. PRACTICE, PLEADING, AND EVIDENCE.

The Introduction to Crompton's Practice gives a full account of the jurisdiction of the courts, and the steps by which it was arrived at. This book is sometimes called Sellon's Practice, having been arranged by Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's Practice. Stephen on Pleading. Saunders' Reports, with Notes by Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's Equity Pleading. Barton's Historical Treatise of a Suit in Equity. Newland's Chancery Practice. Gresley on Evidence in Equity.

III. CRIMES AND FORFEITURES.

Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's Considerations on the Law of Forfeiture for High Treason. The third part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors. Chitty on Criminal Law.

IV. NATURAL AND INTERNATIONAL LAW.

Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis. Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum. McIntosh's Discourse on the Study of the Law of Nature and Nations. Wheaton's History of International Law. Wheaton's International Law. Robinson's Admiralty Reports. Cases in the Supreme Court of the United States.

V. CONSTITUTIONAL LAW.

The second part of Lord Coke's Institutes. Hallam's Constitutional History of England. Wynne's Eunomus. De Lolme on the English Constitution, with Stephens' Introduction and Notes. The Federalist. Rawle on the Constitution. Story on the Constitution. All the cases decided in the Supreme Court of the United States, on constitutional questions, to be read methodically, as far as possible.

VI. CIVIL LAW.

I consider some study of this head as a necessary introduction to a thorough course on the subjects of Persons and Personal Property, and the topic, which is so important in the United States, of the Conflict of Laws.

Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap. 44. Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny's Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law. Domat's Civil Law.

VII. PERSONS AND PERSONAL PROPERTY.

Reeves on the Domestic Relations. Bingham's Law of Infancy and Coverture. Roper on Husband and Wife. Angel and Ames on Corporations. Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones on Bailments. Story on Partnership. Byles on Bills. Story on Promissory Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traité des Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict of Laws.

VIII. EXECUTORS AND ADMINISTRATORS.

Roper on Legacies. Toller on Executors. Williams on Executors. The Law's Disposal, by Lovelass.

I believe that the course that I have thus sketched, if steadily and laboriously pursued, will make a very thorough lawyer. There is certainly nothing in the plan beyond the reach of any young man, with ordinary industry and application, in a period of from five to seven years, with a considerable allowance for the interruptions of business and relaxation. One thing is certain,--there is no royal road to Law, any more than there is to Geometry. The fruits of study cannot be gathered without its toil. It seems the order of Providence that there should be nothing really valuable in the world not gained by labor, pain, care, or anxiety. In the law, a young man must be the architect of his own character, as well as of his own fortune. "The profession of the law," says Mr. Ritso, "is that, of all others, which imposes the most extensive obligations upon those who have had the confidence to make choice of it; and indeed there is no other path of life in which the unassumed superiority of individual merit is more conspicuously distinguished according to the respective abilities of the parties. The laurels that grow within these precincts are to be gathered with no vulgar hands; they resist the unhallowed grasp, like the golden branch with which the hero of the Æneid threw open the adamantine gates that led to Elysium."

No. III.

THE ENGLISH BAR.

There are three orders of men at the English Bar: 1. Attorneys, or Solicitors in Chancery. 2. Barristers; and 3. Serjeants.

1. _Attorneys and Solicitors._--Acts of Parliament have been made for the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating and amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and mode of their service under articles; and the oaths to be administered to them; and authorizes the Judges of the courts of the common law, and the Master of the Rolls to appoint examiners to examine the fitness and capacity of all persons applying to be admitted as attorneys or solicitors; and the certificate, either of the common law or equity examiners, will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary. 3 Stewart's Blackst. 29.

2. _Barristers._--The proper legal denomination of this class is _apprentices_, being the first degree in the law conferred by the inns of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in aliqua facultate_. This was probably the meaning of the term primarily; but as early as the reign of Edward I, it was employed to denote counsel below the state and degree of serjeant at law; one degree corresponding to that of bachelor, and the other to that of doctor, in the universities (Pearce's History of the Inns of Court, 28). Lord Coke informs us, however, that this degree was anciently preferred to that of serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad barras_; and hence arose the cognomen of _barristers_. A barrister must have kept twelve terms, _i. e._, been three years a member of an inn of court, before he can be called to the Bar. After a member of an inn of court has kept twelve terms, he may, without being called, obtain permission to practice _under the Bar_. This class of practitioners are called _special pleaders_ or _equity draftsmen_ (according as they prepare pleadings in the common law or equity courts), or _conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those who are regularly called, however, may take upon them the causes of all suitors. Such of the barristers as have a patent of precedence, as king's counsel, sit within the Bar, with the serjeants; all others are called _utter_ or _outer barristers_.

3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The coif or covering to the head worn by this order has also given a denomination to them. There exists some differences of opinion among judicial antiquarians as to the origin of the coif. It is supposed by some to have been invented about the time of Henry III, for the purpose of concealing the clerical tonsure, and thus disguising those renegade clerks, who were desirous of eluding the canon, restraining the clergy from practising as counsel in the secular courts. Hortensius, 349. By others it is referred to a much earlier period, when the practice in the higher courts was monopolized by the clergy, and those who were not in orders invented the coif to conceal the want of clerical tonsure. 1 Campbell's Lives of the Chief Justices, 85, note. There are, indeed, several circumstances to remind us of the ecclesiastical origin of our profession in England. The terms--on the festival of St. Hilary (Bishop of Poictiers, in France, who flourished in the fourth century); Easter; the Holy Trinity; and of the blessed Michael, the Archangel;--the habits of the judges, their appearance in court in scarlet, purple, or black, at particular seasons--the use of the word _brother_ to denote serjeant, and _laity_ to distinguish the people at large from the profession--the coif of the serjeants--the bands worn by judges, serjeants, and counsel, and the gown and hood of graduates of the inns of court,--many of such circumstances raise a strong presumption that the legal university was founded before the time of the enactment of the canons in the reign of King Henry III, compelling the clergy to abandon the practice of the law in the secular courts (Pearce's History, 22). _Nulles clericus nisi causidicus_, was the character given of the clergy, soon after the Conquest, by William of Malmsbury. The judges, therefore, were usually created out of the sacred order, as was likewise the case among the Normans; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be styled _clerks_ to this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were originally intended as a provision for them, and an order was made in Parliament, 4 Edw. III, that "the Chancellor should give the livings in his gift, rated at twenty marks and under, to the King's clerks in Chancery, the Exchequer, and the two Benches, according to usage, and to none others." 1 Campbell's Lives of the Chancellors, 170, note.

In the time of Fortescue, sixteen years' continuance in the study of the law was the period of time considered a necessary qualification in candidates for the coif. There seems, however, never to have been a regulation to that effect; and it is certain that persons have often been advanced to this degree before that time. By the common law no one can be appointed a judge of the superior courts, who has not attained the degree of the coif; which degree can only be conferred on a barrister of one of the four inns of court. As soon as any member of an inn of court is raised by royal writ to the state, degree, and dignity of a serjeant-at-law, he ceases to be a member of the society. He removes to a new hall, and appears for the future in the inn of court as a guest (Pearce, 52).

The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number), was the monopoly of the practice in the Court of Common Pleas. A bill was introduced into Parliament in the year 1755; for the purpose of destroying this monopoly; but it did not pass. In 1834, a warrant under the sign manual of the Crown was directed to the Judges of the Common Pleas, commanding them to open that court to the Bar at large, on the ground that it would tend to the general dispatch of business. This order was received, and the court acted accordingly. But in 1839 the matter was brought before the court by the serjeants, when it was decided that the order was illegal; Tindal, C. J., declaring that, "from time immemorial, the serjeants have enjoyed the exclusive privilege of practising, pleading; and audience in the Court of Common Pleas. Immemorial enjoyment is the most solid of all titles; and we think the warrant of the Crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the court itself." (10 Bingh. 571; 6 Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54, has since extended to all barristers the privileges of serjeants in the Court of Common Pleas.

FOOTNOTES:

[1] This oath seems first to have been prescribed by the Act of Assembly, passed August 22d, 1752: "An act for regulating and establishing fees." (1 Smith's Laws, 218.) It has been copied into the revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the addition of the clause to "support the Constitution of the United States, and the Constitution of this Commonwealth." In England, by the Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all attorneys shall be examined by the Justices, and by their discretion, their names put in the roll, and they that be good and virtuous, and of good fame, shall be received, and sworn well and truly to serve in their offices, and especially that they make no suit in a foreign country." The present oath or affirmation is, that he "will truly and honestly demean himself in the practice of an attorney, according to the best of his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6 & 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at large in 2 Inst. 213; and in the valuable old book, "The Mirror of Justices," chap. 2, sec. 5, it is said that "every countor is chargeable by the oath, that he shall do no wrong nor falsity, contrary to his knowledge, but shall plead for his client the best he can, according to his understanding."

[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354, 387.