LAW AND LAWYERS.
6 Albany Law Journal 121 (1872)

Some weeks since, S. Teackle Wallis delivered an address before the law class of the University of Maryland, which contained some things so sensible, and yet so unusual in an address of the kind, that we give them:

The Law As a Science.

It is the fashion among us to speak of the law as a science, and I could tell how many clever and ingenious young men I have myself known, whose first experience of their profession, in its practical working and application, was made one of painful disappointment, and almost disgust, by this exaggeration. Jurisprudence is a science, certainly, and the noblest of all sciences, in so far as it applies to the regulation of human conduct that eternal law which”is laid up in the bosom of God.” But, gentlemen, I pray you consider the distance between jurisprudence, as understood, and the common law of England patched from the civil law and supplemented by the Maryland code! Doubtless the common law, in some of its titles and divisions, may justly be regarded as eminently scientific. But, gentlemen, I pray you consider the distance between jurisprudence, as understood, and the common law of England patched from the civil law and supplemented by the Maryland code! Doubtless the common law, in some of its titles and divisions, may justly be regarded as eminently scientific. But to call it, as a whole, and with all its modifications, a science, or the exposition of a science, is really to trifle and delude. The rhetoricians who liken it to a great river, which has brought down upon its bosom all the treasures of the realms of time through which it has rolled, seem to forget that great rivers bring down many things which are not treasures. They forget many things which are not treasures. They forget the waters, turbid with ooze and slime, the worthless spoil of devastated fields and homesteads ruined, — the flowing rottenness and waste of ancient forests and primeval plains, the rafts that cumber the surface, and the sands and stranded trunks that lie in wait, beneath, for shipwrecks. I fear that the simile, thus qualified, may be juster than it seemed at first; and I gave you, a moment ago, the exact language of some of the learned and able lawyers who participated in the recent debate in the House of Commons, in order that I might not seem to be speaking with presumption, or to be alone and without authority in saying what some might regard as unduly derogatory to the system on which our profession is grafted.

Some uneasy suspicions in the same direction must have crossed your own minds, I am sure, during your studies, in spite of the reverence you naturally felt for the mysteries into which you were about to be initiated. The separation of the law from equity must have stricken a rude blow at your notions of judicial philosophy. When you were first taught that a document with a scrawl to it was a “sealed instrument,” and of “higher dignity,” as such, than a paper identical with it, save as to the hieroglyphic in question, your previous ideas of dignity must have been very much shaken. But when you went further and learned that this dignity was no “insubstantial pageant,” that it dispensed with proof of consideration; that it sanctified a promise otherwise worthless; that it implied priority of satisfaction, in certain cases, and gave the happy possessor of the treasure four times as long to have the luxury of suing as if the mystic sign were away, you must have had some droll misgivings that your science, like that of human nature, belonged to the class commonly called occult. When you learned that an estate in land for ninety-nine years, renewable forever, subject to the annual rent of a barley-corn, was not only a lesser estate than one for somebody else’s life, or your own, but was of no higher respectability than a chattel, and passed to the executor instead of the heir, you must have had some difficulty in realizing that you were not the victims of a puzzle. When you wore gravely taught by learned men, who were bound to teach it, whatever they might think of it, that statutes derogatory of the common law must be strictly construed, so as to alter the law as little as possible; in other words, that reformatory legislation must be prevented as far a practicable from working the reform intended; it must have cost you some time and thought to understand upon what theory of longevity such a canon of interpretation could have survived until your time.. Nor could the reasons on which these anomalies are founded have bewildered you much less than the anomalies themselves. It is difficult to be reconciled to the absurd and antiquated distinctions between the law of real and the law of personal property as administered to-day, and the rights and remedies thereon dependent, by being told that personal estate, is contemplation of law, is a trifling and “transient commodity,” of which, according to Blackstone, our heroic Anglo-Saxon ancestors “entertained a very low and contemptuous opinion.” Such an opinion was, doubtless, reasonable enough in the days of King John, when a wealthy Hebrew on a gridiron was their only banking institution, or even at the more advanced and enlightened date, when Mr. Solicitor Coke knelt before his virgin mistress, and her majesty’s first of pair of silk stockings had no better carpet to be displayed on than a handful of rushes; but it is hardly respectable, as a scientific basis of right, in these days of coupon-bonds and aggregated capital. It would be ludicrous, if it were not mortifying, to see the most enlightened courts compelled every day, by this descended nonsense, to hold that the same words, in the same paper, from the hands and mind of the same man, and expressing, at the same moment, the same purpose and intention, convey precisely opposite meanings when applied to real and personal estate. Of a truth Lord Coke spoke wisely to King James when he said that the reason of the law is not “natural reason.” It might perhaps require wisdom beyond Lord Coke’s to show why it should not be.

Practical Knowledge

You must bear in mind that although yours is a learned profession, it is an eminently practical one, living and moving and never standing still. Its archaeology therefore belongs to its literature, rather than its life. Yu have no time to waste on it’s quaint pedantries and scholastic riddles. Peters fonies quam sectari rivulos is a very good maxim, but it must not be too literally followed. It is well to know the heads of the streams and what is to be found there, but you cannot afford to sit angling, with Piscator and Venator, by the waterside, and meditating under the willows. You are to be men of active thought, not antiqurians. You must keep your everyday faculties bright for every day use, and train them to keep pace with every day’s progress. More than any other quality or condition of mind, your profession demands that enlightened practical sagacity which is known as common sense. Do not misunderstand me. Your merely practical men are useful, doubtless, and often successful, in their way. But they are, for the most part, little and contracted, excellent and worthy drudges if they are good men, almost inevitably pettifoggers, unless under remarkable moral restraint. When, therefore, I exalt common sense, I do not speak of the small sense of that class of people. I mean the large assimilative faculty which digests the learning of the profession into solid and useful food, which extracts substantial knowledge from study, and not theories or speculations, which makes the intellect capacious and healthy, cleaning it wholly of cobwebs and crotchets. It has been otherwise forcibly described as “rectitude of understanding.” All cannot possess it in its highest, or indeed in a high degree, but all should strive to cultivate it and develop it . Without it, you may go on studying more and more and knowing less and less every day, for all useful purposes, until your minds become as crowded and confused as the last edition of a popular and much-edited text-book.

General Counsel.

And now, gentleman, a very few words to you as working men. You have dedicated yourselves to a pursuit which, in its best estate, entails on you a life of toil. Whether or not it shall be the toil of drudgery, unrelieved and unending, depends in a measure on yourselves, and on what you shall do for yourselves in this your season of freshness and strength. Your first and most manifest necessity is to become thoroughly grounded, so far as your talents may permit, in the principles which are the true learning of the law. Simplification, the happy result of all sound analysis, should be the prime object of your labors. The more you rid your minds of non-essentials, the nearer you will bring them to the knowledge which avails. You are entitled in an army where the knowledge which does not avail belongs to the impediments and must be sent to the rear. You will need to be not only thoroughly informed, but ready, and this last you can never be unless you have what you ought to know stored away within easy reach, and unless when you reach it, you can grasp it. “No attorney,” exclaimed Lord Tenterden, from the bench, “is bound to know all the law. God forbid that it should to imagined that an attorney or counsel, or even a judge, is bound to know all the law.” Yet there is not a mendicancy more pitiful on earth, than that of a lawyer, in active practice, who has to beg, every day, from his books, the bread of his daily need. But let me entreat you to have ti ever present before you, that the great end and effort of your labors should be to learn to think. You may pile such a mountain of other men’s thoughts upon your minds, that though they were Titans, they could not turn under it. Until a second Omar shall rise up, in the order of Providence, to burn your books or the courts shall agree a little more generally, to prefer a reason, now and then, to a report from some “far countree,” you will of course have to wander much in the labyrinth of cases. But, I charge you, wander there with cautious feet, and do not delude yourselves with the conceit that case-hunting is study or case-knowledge learning. You must keep side by side, as I have said, with the progress of the law, but a single shelf of your libraries will measure the most of that progress which is real.

In the preparation of your causes, put no trust in genius or inspiration. If a man ever has a great success without working his best for it, it is rarely more than once in a life time, like marrying for love. Be careful, nevertheless, to shun over-preparation, which is a grievous impediment to thought and argument. It is painful to see how many causes, which ought to be won, are lost, by being conscientiously studies and tried to death.

Next to self-possession and self-control, the working quality, which will stand you most in stead, is clearness and mind and speech. Whether the stream be deep or shallow, it matters little what golden sands lie in the bed, if men cannot be made to see them. Clearness of statement can hardly be without clearness and directness of thought. This last, perhaps, is commonly a gift of nature, but there are few good minds, in which discipline and use will not breed a habit of it. It is not given, as we know, to all men to be eloquent, or great, or very wise, but he whose mind goes straight to its own purposes and conclusions, and can light the minds of other men along its processes, as with the light of perfect day, has, as an advocate, as little reason as the best to rail at fortune.

While nothing can be more unworthy of your calling than the arts of sycophancy, there can be nothing worthier of it than respectful courtesy to those who seek your counsel and kindly sympathy beyond the formal line of duty to them as your clients. To be consulted as oracles and looked up to from afar is very pleasant, undoubtedly, to men of a certain character; but, in the end, they generally find themselves with a small congregation of worshippers, while around the more genial of their brethren there gather every year fresh troops of friends. And, after all, what is human life, at its proudest, without human sympathies?

On your personal intercourse with your brethern must, to a great extent, depend the degree of satisfaction which will attend your labors, whatever be their course of your success. The antagonisms and the inevitable partisanship of the profession render it necessary for you to be ever on your guard, lest you trench upon the rights and feelings of your fellows. There can be no severer test of both temper and manners than the trial-table, and few are so happily endowed as to be superior always to its provocations and temptations. That the best of us profit, as we should, by its lesson of forbearance and self-restraint, it would be rash indeed to say; but when you shall have felt, as few escape, the mortification which is inseparable from the consciousness of having neglected them, you will understand how impossible it is for you to heed them too much.

To the courts before which you appear, your first duty is deference and respect. There can be no two things more different than discourtesy and proper independence in your dealings with them. A right-minded and right-hearted judge is always at a disadvantage in a collision with counsel. The very superiority of his position makes it doubly his duty and inclination to forbear, and he hesitates to strike, lest the judge should be moved by the resentment of the man. I need not say how ungenerous it is to forget this, and so forget ourselves. If you would have, with the bench and with the bar, the legitimate influence with is one of the most attractive of professional rewards, you must give as well as take. You must yield respect if you would receive respect. You must be courteous, considerate and liberal if you would have courtesy, liberality and consideration. Above all, you must deserve confidence if you would enjoy it, and, believe me, no weight of intellect, no copiousness of learning will commend you or your cause one-half so strongly as a life of stainless rectitude, of kindly offices, of manly frankness and of lofty purposes.