網頁圖片
PDF
ePub 版

development a picture of the best thoughts suggested by the statements in the text taken at successive periods since the publication of the first edition. Carrying out this idea in my own notes, I have attempted to reflect the thought of the last part of the nineteenth century rather than to present my own opinions. In this connection, it is proper to state that I have retained some of the notes of prior editors on statutes since repealed. This has been done wherever necessary to the proper understanding of the statute law as it exists to-day.

By citing thousands of cases and hundreds of text-books, I have sought to make the Commentaries, with the arrangement and text of which all lawyers are familiar, a mine of references to which one can readily turn when in search of information upon a given point of law. In my own notes the dates of the cases have been added to the citations. Where there is more than one edition of a text-book, the number of the edition referred to in the notes is given. Besides the ordinary table of cases, there is also published in connection with the Fourth Book a table of text-books cited, and abbreviations used.

I hope that law students, even those familiar with Latin, will find useful the translations of phrases not in English, whether in the text or notes. These translations I have placed in brackets. The value of Barron Field's Analysis is conceded by all, and I therefore make no apology for printing it. I have added to the First Book a few thoughts on the study of the law. The Index to the four books refers to the top or star paging, and covers the notes as well as the text.

The number of the Book should always be noted by the reader when the pages of the Commentaries are referred to, as each Book is paged with consecutive Arabic numerals thus, I, 2, 3, 4, etc.

It gives me pleasure to acknowledge the very valuable assistance in reading and revising the proofs which I have received from Albert L. Moise, Esq., of the Bar of South Carolina.

W. D. L.

UNIVERSITY OF PENNSYLVANIA,

DEPARTMENT OF LAW,

January 1, 1897.

THE STUDY OF THE LAW.

An opinion as to the proper method of studying a subject must depend, in large measure, upon our conception of the nature of the subject. Law is no exception to this rule. If we regard the law as a system of rules for regulating human action, based on logical distinctions and derived from welldeñned principles of right and wrong, we are almost certain to regard the study of the law as consisting of a logical analysis and arrangement of those principles. On the other hand, if we regard our law as essentially empirical in its character,—a child, not of logic but of the race's conceptions of public policy—we shall be equally certain to look upon the study of law as a branch of the study of civilization and its history.

He who reads the records of actual issues decided between man and man, will find that the courts, in determining these issues, have from time to time declared the existence of certain well-defined rules of action in almost every field of human conduct, and that, as new cases have arisen, the courts have applied, extended and modified these rules. Learned lawyers, by examining the cases, have extracted from them the principles upon which the courts appear to have acted. Placing these principles in a logical sequence, they have produced our legal text-books. The value of these books to the lawyer is very great. They are, in the first place, a source from which he can easily obtain references to the decided cases. In the best text-books he will find able discussions of legal principles. These discussions often throw light on much that he might not have had the time, or perhaps the ability, to discover, if he had been left to work upon the reports unaided.

But when we approach the study of the law as a science, or attempt to investigate any legal question, it must not be forgotten that the law is found in the cases, not in the text-books. It has been and is developed-not primarily by the text-book writers, but by the application to new cases of principles extracted from earlier cases. The law, in this view, is the result of the application of what was felt to be the proper rule in actual cases arising before the courts and it has not been worked out, expounded or limited by logic alone. The consequence is that the mere ability to state a principle of law, or all the principles of law, if it were possible (as it is not) to conceive of a definite sum of such principles, does not make a lawyer. A man might have this knowledge and yet have no mastery of the law. He might even add to a knowledge of the principles the ability to dissect and analyze them from the logician's point of view, or from some a priori standard of ethics, and still he would not in any sense be a lawyer. He must grasp something more than a principle; he must know how a principle has grown, he must have put himself in the position of the judge who decided the case when the problem was first presented as related to the concrete facts of the

case before him. In short, he only knows a principle of law who has for himself worked out that principle from the cases in which it has been developed. Such an one has a power over his subject which no amount of text-book reading can ever give him. He not only knows the completed structure, but, side by side with the builders, he has built it up. In this way he has caught the spirit of its development, and knows the elements which will influence its future growth. If the rules of human conduct which we have to-day, and which our courts enforce, are the results of prior judgments on the facts of particular cases arising in every day life between man and man, the study of law is the study of cases-a knowledge of the law is, in this sense, a knowledge of cases.

At this point it may be natural to ask, "if a knowledge of the law cannot be gained except from a study of the cases, and the books are full of thousands of cases, is not the mastery of the law an impossibility?" In reply, it may be admitted that a complete knowledge of the law is impossible. To know the rise and all the details of the application of every legal principle would be a task the duration of which would far exceed the ordinary space of human life. The knowledge of all the reported cases, even in the principal jurisdictions under the sway of the Common Law, besides being impossible, would be useless. Law constitutes no exception to the rule that we must demand of an educational system not a knowledge of a multitude of facts, but the power to deal with problems as they arise. Though law must be studied from the cases, the student must confine himself to those cases which show the development and illustrate the main tendencies in the working out of a legal principle. Fortunately, in the last few years, the attention of some of our best legal minds has been turned to the collection of selected lists of cases taken to illustrate the growth and application of the law. These selected cases now cover all the principal branches of the science. Those who have not the advantage of attending one of the law schools connected with our principal universities, should use in connection with these case-books, as they are called, a text-book covering the same subject; always remembering, however, that the work must be spent on the cases, not in memorizing the principles set forth in the text-books. Again, however much the text-book may be relied on for its statement of particular applications of a principle and of the minor exceptions to it, which the student has no time to verify, it should never be relied on for the statement of the principle itself. The student must know a principle as a result of having worked it out for himself. As far as practicable, therefore, the study of cases should precede the study of the text-book, but on no important subject should the reading of some standard text-book be omitted.

It may be pointed out in this connection that the necessity thus laid upon the student of "digging out" for himself the rules of law from the cases, varies somewhat with the importance to him of an exhaustive knowledge of the branch of law which he is investigating. To almost every student a thorough knowledge of Torts, Crimes, Contracts, Quasi-Contracts, Property and Equity is essential. These, therefore, every student must work

out, in the main, from the splendid lists of cases now accessible. But when we pass beyond these fundamental subjects into minor subdivisions of the law, we find many which can hardly be considered essential to every man who would acquire legal knowledge. A general knowledge of many such subjects as, for instance, Admiralty, in the case of one who does not expect his practice to lie in that direction, can be obtained from reading the best text-books. To one who has studied the law from the cases, there is no danger that he will deceive himself into thinking that he knows the subjects which he has read about. He will realize that he has just enough information to enable him the more readily to "look the subject up should occasion require." On most of the minor subjects of the law this is all he can hope or expect to be able to do.

It is perhaps a work of supererogation to point out that one's legal studies should be graded. One cannot expect to study everything at one time. The law is a mine to work in, and some parts lie further from the entrance than others. Thus the simple fundamental things must be studied first, while the subjects involving the more complicated business and property relations of modern life must be left until a later period. The grading given below In "The Course of Legal Study" has been based on the course now given in the best law schools in the United States.

I have just likened the law to a mine in every part of which it is impossible. for one man to work at the same time. That legal study tends to become more and more diversified day by day is admitted. Where not so long ago we had "corporations" as a single subject, we now have: public, private and foreign corporations, insurance companies, railroads, etc. In proportion as the divisions of law thus become more and more complex and numerous, the necessity that the student should have a general idea of the law as a whole is more pressing. We must have a map of the mine before we can work intelligently in any part of it. Every student should read as a preliminary to his legal work some elementary and general treatise. For this purpose the work of Blackstone, though written more than one hundred and twenty-five years ago, is without a rival. The reason for this pre-eminence lies not only in the intrinsic value of the work itself. It is to be found also in the fact that it is written on a plan eminently suited to an elementary work. It is a picture of the law as it was in Blackstone's time, illuminated by legal history and an explanation of the reasons for the principles set forth. On the other hand, whatever historical mistakes appear in Blackstone's work, mistakes which have been greatly exaggerated, no one can doubt the judicious manner in which history and present law are blended in his work. Again, Blackstone may be as much praised for what he has refrained from doing as for what he did. Nearly every one since his day who has attempted an elementary treatise upon the law, has felt called upon to fill his book with definitions and little else. Definitions Blackstone has in plenty, but they are not obtruded upon the student.

reasons which Blackstone gives.

They are at most the background to the
And these same reasons of Blackstone

make, for the purposes of the student, the most useful part of his book. He

suffers no statement to stand without a reason. Few institutions pass without a word of praise or blame-generally of praise. Some of the reasons given are to us who boast an age which gets at the roots of things, unsatisfactory. Some of the reasoning is obviously faulty. But, be this as it may, the very faults of the reasoning are apt to set the student thinking on his own account.

Again, a book intended to fill the place of a general introduction to the study of the law must be something more than a picture of the law as it is, illuminated by statements of legal history and by explanations of the reasons for the principles set forth and the facts recorded. It must also be a work with a distinct literary style,-of artistic as well as of scientific merit. The student must be interested in the law. No factor is more potent in this connection than the literary form of the first book on legal subjects placed in his hands. Whether it is to be for him a book which he is to carry through life will depend in a large measure on the attractiveness of its style. This is, I believe, the reason why Blackstone has kept his hold on successive generations of lawyers. It is the principal reason to-day why it is the best book to place in the hands of one about to begin the study of the Common Law.

I have suggested below a course of legal study covering a period of three years, the shortest time in which it is possible for one to hope to earn the right to call himself a lawyer. It is perhaps impossible for one to accomplish in one year all the work mapped out for the third year. A judicious selection should be made with reference to the use which the student expects to make of his legal knowledge.

[blocks in formation]

Statutory Law (of the State in which the student intends to practice).

[blocks in formation]

Practice (of the State in which the student intends to practice).

PHILADELPHIA, January 1, 1897.

W. D. L.

« 上一頁繼續 »