« PreviousContinue »
Lawyers, too, were among the first specialists to be needed and to appear in America. And I believe it would be hard to exaggerate the goodness of their influence in favor of sane and orderly thinking. But lawyers feel the spirit of the times like other people. They, like others, are forever trying to discover cheap and agreeable substitutes for real things. I fear that the bar has done its full share to exalt that most hateful of American words and ideals, “smartness," as against dignity of moral feeling and profundity of knowledge. It is from within the bar, not from outside, that I have heard the new gospel that learning is out of date, and that the man for the times is no longer the thinker and the scholar, but the smart man, unencumbered with other artillery than the latest edition of the Digest and the latest revision of the Statutes.
The aim of a law school should be, the aim of the Harvard Law School has been, not to make men smart, but to make them wise in their calling to start them on a road which will lead them to the abode of the masters. A law school should be at once the workshop and the nursery of specialists in the sense which I have explained. It should obtain for teachers men in each generation who are producing the best work of that generation. Teaching should not stop, but rather should foster, production. The " enthusiasm of the lecture-room," the contagious interest of companionship, should make the students partners in their teachers' work. The ferment of genius in its creative moment is quickly imparted. If a man is great, he makes others believe in greatness; he makes them incapable of mean ideals and easy self-satisfaction. His pupils will accept no substitute for realities; but at the same time they learn that the only coin with which realities can be bought is Life.
Our School has been such a workshop and such a nursery as I describe. What men it has turned out I have hinted already, and do not need to say; what works it has produced is known to all the world. From ardent cooperation of student and teacher have sprung Greenleaf on Evidence, and Stearns on Real Actions, and Story's epoch-making Commentaries, and Parsons on Contracts, and Washburn on Real Property; and, marking a later
epoch, Langdell on Contracts and on Equity Pleading, and Ames on Bills and Notes, and Gray on Perpetuities, and I hope we may soon add Thayer on Evidence. You will notice that these books are very different in character from one another, but you will notice also how many of them have this in common,—that they have marked and largely made an epoch.
There are plenty of men nowadays of not a hundredth part of Story's power who could write as good statements of the law as his, or better. And when some mediocre fluent book has been printed, how often have we heard it proclaimed, “Lo, here is a greater than Story!” But if you consider the state of legal literature when Story began to write, and from what wells of learning the discursive streams of his speech were fed, I think you will be inclined to agree with me that he has done more than any other English-speaking man in this century to make the law luminous and easy to understand.
But Story's simple philosophizing has ceased to satisfy men's minds. I think it might be said with safety, that no man of his or of the succeeding generation could have stated the law in a form that deserved to abide, because neither his nor the succeeding generation possessed or could have possessed the historical knowledge, had made or could have made the analyses of principles, which are necessary before the cardinal doctrines of the law can be known and understood in their precise contours and in their innermost meanings.
The new work is now being done. Under the influence of Germany, science is gradually drawing legal history into its sphere. The facts are being scrutinized by eyes microscopic in intensity and panoramic in scope. At the same time, under the influence of our revived interest in philosophical speculation, a thousand heads are analyzing and generalizing the rules of law and the grounds on which they stand. The law has got to be stated over again; and I venture to say that in fifty years we shall have it in a form of which no man could have dreamed fifty years ago. And now I venture to add my hope and my belief, that, when the day comes which I predict, the Professors of the Harvard Law School will be found to have had a hand in the change not less important than that
which Story has had in determining the form of the textbooks of the last half-century.
Corresponding to the change which I say is taking place, there has been another change in the mode of teaching. How far the correspondence is conscious, I do not stop to inquire. For whatever reason, the Professors of this School have said to themselves more definitely than ever before, We will not be contented to send forth students with nothing but a rag-bag full of general principles—a throng of glittering generalities, like a swarm of little bodiless cherubs fluttering at the top of one of Correggio's pictures. They have said that to make a general principle worth anything you must give it a body; you must show in what way and how far it would be applied actually in an actual system; you must show how it has gradually emerged as the felt reconciliation of concrete instances no one of which established it in terms. Finally, you must show its historic relations to other principles, often of very different date and origin, and thus set it in the perspective without which its proportions will never be truly judged.
In pursuance of these views there have been substituted for text-books more and more, so far as practicable, those books of cases which were received at first by many with a somewhat contemptuous smile and pitying contrast of the good old days, but which now, after fifteen years, bid fair to revolutionize the teaching both of this country and of England.
I pause for a moment to say what I hope it is scarcely necessary for me to say—that in thus giving in my adhesion to the present methods of instruction I am not wanting in grateful and appreciative recollection (alas! it can be only recollection now) of the earlier teachers under whom I studied. In my day the Dean of this School was Professor Parker, the ex-Chief Justice of New Hampshire, who I think was one of the greatest of American judges, and who showed in the chair the same qualities that had made him famous on the bench. His associates were Parsons, almost if not quite a man of genius, and gifted with a power of impressive statement which I do not know that I have ever seen equalled; and Washburn, who taught us all to realize the meaning of the phrase which Į
already have quoted from Vangerow, the “ enthusiasm of the lecture-room.” He did more for me than the learning of Coke and the logic of Fearne could have done without his kindly ardor.
To return, and to say a word more about the theory on which these books of cases are used. It long has seemed to me a striking circumstance, that the ablest of the agitators for codification, Sir James Stephen, and the originator of the present mode of teaching, Mr. Langdell, start from the same premises to reach seemingly opposite conclusions. The number of legal principles is small
, says in effect Sir James Stephen, therefore codify them; the number of legal principles is small, says Mr. Langdell, therefore they may be taught through the cases which have developed and established them. Well, I think there is much force in Sir James Stephen's argument, if you can find competent men and get them to undertake the task; and at any rate I am not now going to express an opinion that he is wrong. But I am certain from my own experience that Mr. Langdell is right; I am certain that when your object is not to make a bouquet of the law for the public, nor to prune and graft it by legislation, but to plant its roots where they will grow, in minds devoted henceforth to that one end, there is no way to be compared to Mr. Langdell's way. Why, look at it simply in the light of human nature. Does not a man remember a concrete instance more vividly than a general principle ? And is not a principle more exactly and intimately grasped as the unexpressed major premise of the half-dozen examples which mark its extent and its limits than it can be in any abstract form of words? Expressed or unexpressed, is it not better known when you have studied its embryology and the lines of its growth than when you merely see it lying dead before you on the printed page?
I have referred to my own experience. During the short time that I had the honor of teaching in the School, it fell to me, among other things, to instruct the first-year men in Torts. With some misgivings I plunged a class of beginners straight into Mr. Ames's collection of cases, and we began to discuss them together in Mr. Langdell's method. The result was better than I even hoped it would be. After a week or two, when the first confusing
novelty was over, I found that my class examined the questions proposed with an accuracy of view which they never could have learned from text-books, and which often exceeded that to be found in the text-books. least, if no one else, gained a good deal from our daily encounters.
My experience as a judge has confirmed the belief I formed as a professor. Of course a young man cannot try or argue a case as well as one who has had years of experience. Most of you also would probably agree with me that no teaching which a man receives from others at all approaches in importance what he does for himself, and that one who simply has been a docile pupil has got but a very little way. But I do think that in the thoroughness of their training, and in the systematic character of their knowledge, the young men of the present day start better equipped when they begin their practical experience than it was possible for their predecessors to have been. And although no school can boast a monopoly of promising young men, Cambridge, of course, has its full proportion of them at our bar; and I do think that the methods of teaching here bear fruits in their work.
I sometimes hear a wish expressed by the impatient, that the teaching here should be more practical. I remember that a very wise and able man said to a friend of mine when he was beginning his professional life, “Don't know too much law," and I think we all can imagine cases where the warning would be useful. But a far more useful thing is what was said to me as a student by one no less wise and able—afterwards my partner and always my friend—when I was talking as young men do about seeing practice, and all the other things which seemed practical to my inexperience, “ The business of a lawyer is to know law.” The Professors of this Law School mean to make their students know law. They think the most practical teaching is that which takes their students to the bottom of what they seek to know. They therefore mean to make them master the common law and equity as working systems, and think that when that is accomplished they will have no trouble with the improvements of the last half-century. I believe they are entirely