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Virginius,” The, in reference to the Law of Self-defence
Works of Edward Livingston..
LAW MAGAZINE AND REVIEW.
No. 1.-Vol. III.- JANUARY, 1874.
1-THE FUNCTION AND INFLUENCE OF LEGAL
JOURNALISM, IN assuming the Editorship of this periodical, it is natural
that the Editor should explain the views and ideas upon which in his hands, it will be conducted, and this appears to involve the province or function of legal journalism and the influence it may exercise. These questions are necessarily connected, for the object, of course, must have reference to the influence which it is adapted to exercise.
The influences exercised in a profession like that of the Law, and still more the modes of their exercise, must necessarily vary with the character and influences of the age. Throughout the middle ages the scholastic spirit, which emanated from the closet or the college, and embodied in the dialectical subtleties of the courts, cramped the whole character of Law. The result of this spirit was a rigid adherence to the letter of mere rules or statutes, and the only idea of legal education was their exposition by Readers in the Inns of Court. Hence, Cecil observed of the lawyers of his age, that “ though learned in their profession, yet having no other learning, they, upon a question, demanded, bluntly answer it, and can go no farther, having no power to carry it by discourse or insinuation to the understanding of others." The reason was that they learnt law only by its practice, as a mere matter of practice or formal rules, without reference to general reason, and the principles
of jurisprudence, which would render it intelligible to the minds of men.
Lord Bacon had the same opinion of lawyers, and described them as “ walking in fetters,” that is enslaved by this letter of rules, without reference to reason or principle. No one better understood the difference between mere experience and real scientific knowledge, and the vast superiority conferred by the latter. “Expert men,” said Lord Bacon, “can execute, and judge of particulars, but the general counsels come best from them that are learned." And the finest passage in his writings is that in which he exults in the prospect of the improvement of law, and enlightenment of mankind, by the diffusion of knowledge through the Press. Political convulsions delayed the consummation of his hopes until after the Revolution, when the publication of the works of Hale, more perhaps than any other cause, tended to the slow but gradual improvement of the law. From that time to the present, the improvement has been progressive, though it was slow indeed, and hardly perceptible, until the influence of the periodical press began to tell upon public opinion in favour of legal reforms. That influence began to operate about a century ago, and we have seen in our own time the wonderful results. . Since that time the progress has been rapid indeed, and we have now to reap the fruit; one of the results is a new judicial system, and another will be the gradual reconstruction of our law. In that great work, for more than forty years, the Law Magazine and Review has borne its part, and will continue to the utmost to promote it.
The utility of legal periodicals may be deduced falike from experience, and from the principles of human nature, and the nature of the profession. Dugald Stewart, the most practical of mental philosophers, has observed :
“ There are two opposite extremes into which men are apt to fall in preparing themselves for the duties of active life. The one arises from habits of abstraction and generalization, carried to an excess; the other from a minute, over exclusive, and unenlightened attention to the objects which happen to fall under their actual experience. Care should be taken to guard against both extremes, and to unite habits of abstraction with habits of business, in a manner to enable men to
consider things, either in general or in detail, as the occasion may require.”
The one, he points out, is the prevailing habit of men if engaged in the active pursuit of a business or profession; the other is the characteristic of those who are only engaged in abstract speculations. It is manifest that the tendency of men in the former class to the extreme to which they are liable can only be counteracted by some influence continually exercised upon their minds, not withdrawing them from legal topics, but treating them constantly with reference to general principles, and the developement of law as a science. And it is difficult to imagine any way in which such an influence may better be exercised than by legal journalismthat is, by the discussion of legal questions, in writing, in that spirit, with reference, not to the interests of particular suitors, or the exigencies of a particular suit, but to the general developement of law and its consistency and coherency as a science.
A great concurrence of opinion, among lawyers and laymen, philosophers and statesmen, attest the fact that the mere practice of the law, apart from such general views and philosophic ideas, which belong to its study as a science, tends to narrow and dwarf, if not degrade the mind. Lord Bolingbroke observed this in one of the finest passages of his works, quoted by Lord Kames in one of those elegant and enlightened essays, in which he sought to stimulate to the philosophic study of law. The great Commentator was fully aware of the truth of the remark, and made it the basis of his great work, destined to achieve in this country what had been effected in Scotland. And Blackstone pointed out that the mere practice of the law will not suffice even to qualify for the pursuit of the law as a profession; a great truth, which lies at the basis of all the generous efforts made in our own time for the promotion of legal education. Speaking of the practitioner, he says :
“ If practice be the whole he is taught, practice must also be the whole he will ever know; if he be uninstructed in the elements and first principles upon which the rule of practice is founded,
the least variation from established precedents will only distract and bewilder him. Ità scripta est is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn à priori from the spirit of laws and the natural foundations of justice.” Comm. I, 32. This description, unhappily, as Lord Mansfield had occasion to observe, has applied to judges as well as practitioners; and, indeed, it could not be otherwise, in a country in which the judicature are taken entirely from the ranks of the practitioners. And hence that great judge had occasion to observe with cold sarcasm, in a case in which his more enlightened opinion was overruled by the majority of the Common Law judges :
“There are, and have been always, laywers of a different bent of genius and different course of education, who have chosen to adhere to the strict letter of the law."
That is—its letter-as distinguished from its spirit; which is the whole distinction between law and equity, whenever they differ—if ever, on the same state of facts, and on the same question they do differ, a proposition denied by Lord Brougham, and disputed by Mr. Burke, who evidently was of Lord Mansfield's opinion that if ever law differs from equity it is simply bad law, owing to the narrow-mindedness of the judicature. This was formally declared, in Lord Mansfield's time, in a considered and elaborate judgment of a court of law, delivered by Sir Eardley Wilmot, and Mr. Burke, in a passage in one of the finest of his works, describes in his philosophic way, the causes and reasons of this degradation of the law; which he ascribes to the ignorance and narrow-mindedness of the judges, and the influence, in an ignorant age, of the scholastic spirit
“In the more early times, it happened that a rigid strictness in the application of technical rules has been more observed than at present. The minds of the judges were less conversant with the affairs of the world; and not so much inconvenience was traced from a liberal adherence to the rule as might have arisen from an endeavour towards a liberal and equitable departure, for which further experience and a more continued cultivation of equity as a science had not then prepared them. The old lawyers were bred