No. II Course of Legal Study60
Non multa sed multum, is the cardinal maxim by which the student of law should be governed in his readings; at the commencement of his studies—in the office of his legal preceptor, Repetition—Repetition—Repetition. Blackstone and Kent, should be read—and read again and again. These elementary works, with some others of an immediately practical cast—Tidd’s Practice, Stephen’s Pleading, Greenleaf’s Evidence, Leigh’s Nisi Prius, Mitford’s Equity Pleading—well conned, make up the best part of office reading. Of course the Acts of Assembly should be gone over and over again. I do not say that this is all. The plan of reading, which I am about to recommend, may be begun in the office. Much will depend upon, what may be termed, the mental temperament of the student himself, which no one but the immediate preceptor can observe; and he will be governed accordingly in the selection of works to be placed in his hands. No lawyer does his duty, who does not frequently examine his student, not merely as a necessary means of exciting him to attention, and application; but in order to acquire such an acquaintance with the character of his pupil’s mind—its quickness or slowness—its concentrativeness or discursiveness—as to be able to form a judgment whether he requires the curb or the spur. It is an inestimable advantage to a young man to have a judicious and experienced friend watching anxiously his progress, and able to direct him, when, if left to himself, he must wander in darkness and danger. “There be two things,” says Lord Coke, “to be avoided by him as enemies to learning, præpostera lectio and præpropera praxis.” Co. Litt. 70 b.
I prefer presenting a certain order of subjects to be pursued; observing, however, that it may be somewhat irksome to pursue any one branch for too long a period unvaried. When that is found to be the case, the last five heads may be adopted as collateral studies, and pursued simultaneously with the first three.
These heads or branches are—1. Real Estate and Equity. 2. Practice, Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and Personal Property. 8. The Law of Executors and Administrators.
I. Real Estate and Equity
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 Œuvres 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.”