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its merits, and to decide accordingly, always first establishing the law in his mind, lest the hardship of the case should lead him to an illegal conclusion. Certainly American jurists were much earlier alive to the importance of an improvement in Legal Education; and matters of that nature are just the topics of discussion in legal journals, which influence the opinion of the profession.
“I have long been persuaded that a more scientific system of legal education than that which has been hitherto pursued, is demanded by the wants of the age and the progress of jurisprudence. The existing method is utterly inadequate to lay a just foundation for accurate knowledge in the learning of the law.”—Story's Life, p. 486.
Many reasons might be given, and many authorities adduced, to show the beneficent influence on the minds of members of the profession, of the discussion in print of legal questions, by the light of legal principles and with constant reference to the development of law as a science. The discussion, in a written form, of such questions as from time to time arise, with reference to the principles of jurisprudence, cannot but have some effect in promoting the study of jurisprudence, and in assisting the practice of the law. Those who are engaged in its practice have got little time for its study, and can never find time to reduce into a written form, with care and consideration, the results of reflection and research. Hence, their study of any question is likely to be brief, hasty, and to result in a crude and imperfect kind of knowledge.
The discussion of legal questions in the press is of the more importance from the character of our judiciary law, which, until affirmed by a supreme court, is not law, but only evidence of it and open to argument. Mr. Burke observes of text books :
“With us doctrinal books had little or no authority, other than as they are supported by adjudged cases and reasons given from the Bench.”
But the same observation applies to judgments of the courts until confirmed by the highest tribunal. Until then they are themselves open to discussion, and if the particular case is not appealed, it is only in the press they can receive such discussion. In this country there is not a power in the Court itself to appeal to the Supreme tribunal, and if the suitor does not do so, the law may be in doubt for many years, especially in the case of a division of judicial opinion and fresh applications of it to important questions as they arise. And no one can fail to observe that from time to time such questions do arise, which greatly interest the community at large, and are fully within the scope of ordinary intelligence, especially of educated and thinking men. It would be easy to find immediate illustrations of this within the last few years, or even months, or weeks. The publication of law reports in the Times reports, by barristers competent to understand and to make intelligible legal questions, brings home daily to the minds of men the constant application of law to their affairs and their interest in civil and criminal law is, in consequence, constantly augmenting. The judgments of the judges themselves simply imply the importance of reasoning and argument in the development of law, and, therefore the value of legal discussion. As Mr. Burke observed, speaking of Courts of Error:—
“Questions of law are argued publicly by the judges in such a manner that every professor, practitioner, or student of the law, may learn the opinions of all the judges upon these points, on which some of the judges might be mistaken.”
And of course prior to the decision of the question by a supreme court, the reasons given by the judges are themselves subjects of legal discussion. Hence, Mr. Burke adds:—
“That nothing better could be devised by human wisdom than argued judgments, publicly delivered, for preserving alive the great traditionary body of the law, and for watching while that great body remained unaltered, every variation in the application and the construction of particular parts, for pointing out the ground of each variation, and for enabling the learned of the bar, and all intelligent laymen to distinguish those charges made for the advancement of a more solid, equitable, and substantial justice according to the variable nature of human affairs, a progressive experience, and the improvement of moral philosophy, from those hazardous changes in any of the ancient opinions and decisions which may arise from ignorance, from levity, from a spirit of innovation, or from other motives of a nature not more justifiable.”—vi. 403.
Here, it will be observed, that Burke speaks of “intelligent laymen.” as interested in the progress and development of law. Lord Brougham is eloquent to the advantages of political science, in which he includes the science of jurisprudence, and it will be seen what a wide and grand field for journalism it offers.
“The science which thus expounds the best modes of legislation, the true principles of jurisprudence, the more efficacious manner of making and of executing laws, which defines the rights of the people and their duties, as well as those of their rulers, and explains the rights of one nation with respect to those of another.”
This is the subject matter of a legal periodical, such are the materials of which it treats, and Lord Brougham dwells
upon the importance of discussion for promoting the knowledge of jurisprudence.
Thus it is that the invention of printing has modified ancient modes of usage, and introduced new modes of instruction. Hence the essays or the articles in a legal journal, to some extent, may assume the object of the ancient readings. Hence the aid afforded by legal periodicals to the promotion of legal learning and the diffusion of legal knowledge. Hence the interest which some of our ablest jurists have taken in legal journalism, and their frequent and valuable contributions to it. Lord Brougham in this country, and Story in America, may be mentioned as illustrious instances. Story was a constant contributor to the legal Journals or Reviews of the United States, and many of our ablest jurists have been proud to be found among the contributors to our legal periodicals. It is obvious that a carefully written exposition of a new and important statute may be of considerable use and advantage both to students and practitioners. And therefore it is proposed to give a series of readings on the operation of the Judicature Act and the working of our new judicial system.
Lord Brougham, in his work on the Constitution, speaks of an important influence, almost amounting to a direct process, exercised by the discussion of all public measures through the Press. Thus he says:
“This influence depends entirely upon the effects which such discussion produces upon public opinion, that is upon the minds of the people, by affecting whom it affects their representatives and their magistrates.”
And in the discussion often a wrong bias or impression may be given to procure opinion which may delay the adoption of important measures, or produce a permanent effect upon the mind of the people; while of course a right impression conveyed through the same sources may produce corresponding advantages. Lord Macaulay, commenting on Lord Bacon's maxim, “writing makes an exact man, reading makes a full man,” observes on the tendency of the present system, to develope plausible and superficial qualities; especially facility in speaking, rather than more solid excellence. This, he says, is one of the most serious of the evils which are to be set off against the many blessings of popular government. He says:
“The tendency of institutions like ours is to encourage readiness in public men at the expence of fulness and exactness. The keenest and most vigorous minds are often habitually engaged in the producing arguments such as no man of sense would ever put into a treatise intended for publication. The habit of discussing questions in this way necessarily reacts on the intellect of our ablest men, particularly those who are introduced into Parliament at a very early age before their minds have expanded to full maturity. The talent for a debate is developed, but they are fortunate if they retain unimpaired the faculties which are required in close reasoning or enlarged speculation.”
In this passage for Parliament read the Bar, and it is applicable extremely to the present state of the profession, and it illustrates in the strongest manner the utility of the habit of the discussion and exposition of legal questions in print. It is not merely the students or younger practitioners who may find such expositions useful; older members of the profession may often profit by them. It is astonishing how little those who are engaged in active practice know of the science, the theory, the principles, or the history of law. They know it, as Mr. Hallam says, more as a profession than a science; they know so much of it as lies within the boundaries of their ordinary practice, in which, so to speak, they work in a groove of a settled course and routine, and when questions arise out of those limits, and which can only be determined by the light of legal history or general principles of jurisprudence, they are utterly at a loss. This is what Blackstone, a century ago, predicated as inevitable of new practitioners, who knew nothing but what seems ordinary practice. A century before the great commentator wrote, Lord Keeper Guildford remarked, that if a man did not make himself a good lawyer before he got into practice, he never would become so afterwards. Lord Selborne once said that there were not a few in large practice at the Bar who knew little of law. The truth is that the characters of the lawyer and practitioner are not only not identical, they are generally different and distinct. They are as distinct as the character of the lawyer and the jurist. The judges are always practitioners, and, therefore, not necessarily all, equally, lawyers. That is, in the sense in which we use the phrase, by way of distinction, “Such a judge is a good lawyer.” All practitioners, know enough, of course, necessarily to carry on their business at the bar, but that is not necessarily much; and when they get on the Bench they are not likely to have much time to study. Hence, when a nice question comes before them which can only be decided satisfactorily by the light of legal history or principle, they habitually decide it in accordance with present notions or received practice. Thus it was when, a few years ago, the question came before the Court of Queen's Bench, whether coroners could hold inquests on cases of fires. The solution of the question, in the light of legal history and legal principle, was clear. But the court decided with reference to mere practice, and so erroneously as to law. And so in many