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according to the then philosophy of the schools in habits of great subtlety and refinement of distinction, and very great acuteness of mind was displayed in maintaining every rule, every maxim of law creation with punctilious exactness.”
Mr. Hallam entirely agrees with Mr. Burke—
“Something of that excessive subtlety and the preference of technical to rational principles which runs through our system may be imputed to the scholastic philosophy which was in vogue during the middle ages.”—Eur. ii. 338. And Mr. Burke pointed out the source from which improvement arose—the study of the law as a science—
“As the law of nature and of nations came to be cultivated, as new views and combinations of things were opened, this over strictness gave way to the accommodation of human concerns for which rules were made, and not human concerns made to bend to them.”
Mr. Burke and Mr. Hallam clearly perceived that the source of the evil lay in the pursuit of law as a profession, and the disregard of its study as a science. Speaking of Mr. Grenville, he observes:
“He was bred to the law, which is, in my opinion, one of the finest and noblest of human sciences—a science which does more to quicken and invigorate the understanding than all other kinds of learning put together; but it is not apt, except in persons happily born, to open and liberalize the mind exactly in the same proportion.”
It is plain, from the context, that what Mr. Burke meant was that practically its study was not pursued as a science,
but only as the practice of a profession. For he goes on to say—
“Passing from that study, he plunged into business (of office), and the limited and fixed forms established there, and it may be truly said that men, too much conversant in office, have rarely minds of much enlargement.” * * *
“These habits are apt to give them a license to think that the substance of business is not much more important than the forms in which it is conducted. These forms are adapted to ordinary occasions, and, therefore, men who are nurtured in office do admirably well as long as things go on in their common order, but when the file affords no precedent then it is that a greater knowledge of mankind and a far more extensive comprehension of things is requisite than ever office gave, or than office can ever give.”
There is a remarkable parallel between this passage and the passage in Blackstone already quoted, and there can be no doubt that Mr. Burke intended his remarks to apply a fortiori to the mere practice or business of the law, and that the reason he thought the profession of the law did not tend to enlarge the mind, was that it was pursued too much as a profession. It can be shown that from another passage that Mr. Burke thought the study of the law was as elevating as its mere practice was the reverse.
“The science of jurisprudence is the collected wisdom of ages, combining the principles of original justice with the infinite variety of human concerns.”
And again he says:“The study of the law I think glorious, transcending that of any earthly thing.”
But of the practice of the law it is manifest that he thought otherwise; that it tended not to enlarge but to narrow the mind. The same view had occurred to the mind of Mr. Hallam, who observes very truly:—
“No tribunals of a civilized people ever borrowed a little even of illustrations from the writings of philosophers or from the institutions of other countries. Hence law has been, indeed in general, rather as an art than as a science, with more solicitude to know its rules and distinctions than to perceive their application to that for which all rules of law ought to have been established, the maintenance of public and private rights.”-Eur. ii. 328.
This is the source of the evil; the pursuit of law as a profession, or a trade, without any provision for its study as a science. And he goes on to speak of the “selfish views of practitioners.” Mr. Hallam thus describes the extent and the results of the evil:—
“An evil which between the timidity of the legislature on the one hand and the selfish views of practitioners on the other, is likely to reach an intolerable excess. For being more inclined to stave off an immediate difficulty by some patchwork scheme of modifications and suspensions than to consult, for posterity, in the comprehensive spirit of legal philosophy, we accumulate statute upon statute, and precedent upon precedent, until no industry can acquire, nor any intellect digest the mass of learning that grows upon the panting student, and our jurisprudence seems not unlikely to be simplified in the worst manner by a tacit agreement of ignorance among its profession.”—Europe ii. 338.
The philosophical reasons for these are admirably given by Dugald Stewart, the most practical of our philosophers. He observes:—
“These who are qualified and experienced cannot be formed for the important situation of society, as their address is founded entirely on imitation or derived for the lessons which experience has suggested to them, and they cannot forcibly extend to new combinations and circumstances. Mere experience can at best prepare the mind for subordinate departments of life and conducting the established routine of business. The walk of unenlightened practitioners must necessarily be limited by their accidental opportunities of experience.”
While, on the other hand, study of law as a science assists in its practice, for, as he observes,—
“The philosophic student of law is provided with principles which enable him to approximate to the truth in an infinite variety of untried cases. Nor is it in new combinations of circumstances alone that general principles assist us in the conduct of affairs. They render the application of our practical skill more necessary and more perfect. For general principles facilitate improvement of practical skill wherever it is requisite, and lessen the number of errors to which it is liable.”
Hence, it is easy to understand how it is that great jurists have always been weary of the pursuit of the law as a business, and attached to the study of it as a science. We find the same sentiment in eminent jurists, such as Story; or in men of cultivated and elevated minds, such as Dr. Arnold, or of great intellects, like Coleridge; who observes “that the more you elevate trades into professions the better, and that every profession has its germs in science.” The whole tendency of the practice of he law in our times, on the other hand, is to degrade it into a trade, and this is the inevitable tendency of pursuing it only as a profession. Coleridge observed:—
“Upon the whole, I think the advocate is placed in a position unfavourable to his moral being, and, indeed, to his intellect also in his higher powers. Therefore, I would recommend him to devote a part of his leisure to some study which shall engage his powers in the investigation of truth alone, without reference to a side to be supported. Some such studies are what is wanted to counteract the operation of legal practice, which, like a grinding stone, narrows while it sharpens.”
Such studies are suggested in legal journalism, well conducted, and filled, as they ought to be, with topics taken from constitutional and international law, with well written reviews, with biographies of eminent members of the profession, and the like. All these branches of legal literature, while not withdrawing the mind from legal subjects, tend to enlarge and cultivate it and give it a more liberal and enlightened tone.
Dr. Arnold was of the same opinion as to the difference between the study of the law and its usual practice. He observes :
“The study of the law is quite to my heart's content. I think if I were asked what station, within possibility, I should choose, as the prize of my son's well-doing in life, I should say the place of an English judge. But then in proportion to my reverence for the office of judge is my abhorrence for the business of an advocate. I have been thinking whether there is any path to the Bench except by the Bar, whether in any other branch of the profession, a man may make his real knowledge available, like the juris consulti of ancient Rome.”—Life ii. 12.
Nor was this the opinion merely of laymen; it was also
the opinion of eminent jurists. Thus Story wrote:— “Law I admire as a science; it becomes tedious and embarrassing only when it degenerates into a trade.”— Story's Life i. 831. And the life of that illustrious jurist shows the high esteem in which he held legal journalism, and the high importance he attached to it. He was throughout his life an industrious contributor to legal journals and reviews, and in this way at once exercised his own mind and enriched and cultivated the minds of others. It may be that to the early developement in America of legal journalism that the superiority of American lawyers as jurists is to be ascribed. Thirty years ago the late Mr. Justice Coleridge wrote to Story:— “It is impossible for an English lawyer to read any one of your books without feeling that the position of an American lawyer is, in many respects, more favourable for an extended and scientific knowledge of law than that of an English lawyer. The simple circumstance that the American constitution forces international law on you as an integral part of your studies; and that, by something almost a necessity, the study of the Roman law is, in my opinion, an advantage far beyond that of our superior accuracy, if we have any, in our own Common Law—acquired in the comparatively narrow range of our studies. After all the most important thing is how we use our knowledge, and thus extended, liberal, and scientific study must liberalize and enlarge the power with which we use our knowledge of details.”—Story's Life ii. 428. Mr. Story, writing to Lord Stowell, said:— “It were well if the common lawyers had studied more extensively the principles of public and civil law, and had looked beyond their own municipal jurisdiction. In America we are not so strict as our mother country in our attachment to everything in the Common Law, and more readily yield to rational expositions, as they stand on more general jurisprudence.—We are anxious to build up our commercial law as much as possible on principles absolutely universal in their application.” It is impossible not to imagine that one great reason for this may have been the greater degree to which the discussion of legal questions in legal journals was carried on in America. There is this great advantage in discussions of this kind over forensic arguments that they are not onesided, nor framed merely to obtain a particular decision, but entirely for the elucidation of a legal question without any other object in view, and without being biassed by considerations of its result with reference to a particular case, In this respect it resembles a judicial judgment, the process and of preparation is that described by Story in preparing his own judgments. First he took notes of the principal facts, then he carefully examined all the cases bearing on the subject, reviewing and firmly placing on his record on the principles of law which might govern the case. By the aid of these principles he proceeded to examine the question on