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3,000,000 lines or sentences were reduced to 150,000. The result was that the civil law became “ the fruitful source of those comprehensive views and solid principles which have been applied to elevate and adorn the jurisprudence of modern nations.” Its highest quality is the exact suitability to definite conditions of life. While it differs from the common law in many things, yet the two systems are much the same; although an eminent authority, the late Judge Dillon, was of the opinion that the English and Roman systems were widely different in their conceptions, growth, essential character, and scope. The common law is said to be “the perfection of reason which is gotten by long and continual study.” The common law is a fact and not a theory. It was evolved from the experiences of men, and while fragmentary and disconnected, it was built up from individual instances. “ The flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.” It adapts itself to every emergency and is “ the collected wisdom of ages, combining the principles of eternal justice with the infinite variety of human concerns." Whether it is fragmentary or is
founded on a comparatively few broad general principles of justice, fitness and expedience,” as claimed by a great English Chief Justice, I shall not attempt to determine. Mansfield insisted that the lex mercatoria gave to the English law a finer and exacter justice than could be found in any statute, while Judge Dillon declared " that for the people subject to its rule the common law is better than the Roman.” Fortunately the prejudice that once existed in this country against the civil law, coming to us through our English blood and literature, and due in no small degree to the teachings of Blackstone, has almost entirely disappeared in the light of knowledge, of good sense and justice, aided by the labors of Kent, Story, and Hoffman.
From the two great sources of Roman and English law there has grown another system that, take it all in all, is better adapted to the wants of the people of this country than either the civil or common law, for with the constructive power of American genius there is being built up steadily a system of law that is indigenous, hardy, and suited to our own wants. It is immaterial whether it comes from a section engraved on a rock 228 centuries ago at Babylon in the reign of Hammurabi, or from the Rhodian Code 900 years before the birth of Christ, or from the Code Justinian, or from the Teutonic customs that obtained in the German forests, or from the ancient laws of England's realm, or from Acts of Parliament, or from statutes enacted by State or federal legislatures, or from the decisions of the judges; “our law is a complete system of conventional and positive rules and of fundamental principles of natural justice, based upon the reason, the experience, and the conscience of mankind. The cultivated lawyer does not undervalue positive regulations, or forms, or precedents, but his vision is not bounded by them, and he delights to ascend to higher altitudes which open to him a broader horizon and a more glorious prospect. He is thus enabled to perceive that the law, in its great living essentials and principles may be and often is something more than a command of the sovereign or of a legislative body-is something deeper than these; and it has innermost and invisible springs in the nature of an elevated morality, hard by the throne of God, and that its waters—which are meant, like the leaves of the Tree of Life, for the healing of the nations-although they may be colored or tinctured by the soils through which they run, never lose the sweetness and purity derived from their original sources, however far they may flow or to whatever uses they may be applied.”
Law is made for society and must meet its actual needs. When it fails to do so respect for it is lost, and its power for good is destroyed. The law of a nation, says Mr. Bryce, is not only the expression of its character, but a main factor in its greatness.
The true measure of a people's greatness is their respect for the law. “ The power of a people is synonymous with the strength of their feeling of legal right.” “The fixedness, clearness, certainty of positive law, the doing away with all those principles at which a healthy feeling of legal right might take offence in any sphere of the law, not only of private law, but in the police power, the administrative, financial, legislative, the independence of the courts, the greatest possible perfection of legal procedure—this is a surer way to increase the power of the state than the greatest possible increase of the military budget.” « The cultivation of the national feeling of legal right is care for the health and strength of the state.”
The struggle for law has been a constant one, and while the field of the struggle is no longer a Running Mede, and the forces of evil are no longer concentered in a John, yet the struggle goes on, and will continue to go on as long as there are conflicting forces of right and wrong.
and love with which a people hold to and assert their laws are determined by the amount of toil and effort which it cost them to obtain them.” “For the state which desires to be respected abroad and to be firm and unshaken internally, there is no more precious good which it has to foster than the national feeling of legal right.”
Resistance, earnest, stubborn, determined resistance to all attacks on legal right, whether they are made at home or come from abroad, is the highest duty of the lawyer.
The object of law is the administration of justice, and the priests who serve in the temple are the lawyers. The purpose of every legal investigation is the ascertainment of the truth, not of abstract and irrelevant truth, but of the truth of the instant case. To that end pleadings are necessary so that an issue may be joined; so that something may be clearly affirmed upon the one side and denied upon the other. If there be one thing more than another which causes lost motion in the actual trial of causes and the occasional miscarriage of justice, it is that judges, counsel and juries do not clearly understand, hear and decide the true, vital and determining issue between the parties. These issues should be settled by the pleadings, and while these pleadings should be characterized by simplicity, they should never be wanting in certainty. And so with rules of evidence. These rules should be so framed as not to exclude testimony by the light of which the truth may be revealed, but at the same time, they should exclude irrelevant matter by which the truth is obscured or distorted. I say this much because no lawyer can succeed at the Bar without a fair knowledge of the rules of pleading and evidence, and justice itself cannot any more be administered without proper procedure than it can without fair and just substantive law.
One of the dangers of the hour is that there is a disposition not only to disregard constitutional limitations, but to abolish well-settled rules of pleading and evidence.
It would be interesting to visit the world's great legal battle
fields, to see a trial in the Greek Agora, in the Roman Forum, or in old Westminster Hall. To see the modes of trial by Ancient Juries, Witnesses, the Party's Oath, the Ordeal, Battle. But these things are not germane to this paper; I am dealing with the advocates or lawyers. Advocacy is said to be as ancient as the law and as necessary as justice. The term advocate does not seem to have been used until about the days of Cicero, and we find him and Scævola and his great rival Hortensius trying causes in the Roman courts. It is interesting to inquire what was the preparation for Roman advocacy. We find in the case of Cicero that he was sent to the public schools of Rome, and being destined for the Bar, was taught philosophy by Philo the Academician and Phædrus the Epicurean. Diodorus the Stoic exercised him in argumentative subtleties, and Antiochus instructed him in the philosophy of Plato. The poet Archias was one of his teachers, and oratory was practised by him under Molo. The orators Antonius and Crassus aided him; the actors Æsopus and Roscius were studied by him. He declaimed daily with his competitors in Latin and Greek, and he frequented the Forum. Scævola was his legal preceptor, and he saw service in the field under Pompeius Strabo. He added to the advantages of the schools the benefits of travel, and spent two years in foreign lands. This was the preparation of the Roman advocate. Out of the civil or Roman law grew the French avocat, and out of the common law the English barrister, and out of both, unconsciously perhaps, but nevertheless most splendidly, has grown the American lawyer. The preparation of the French avocat for admission to the Bar is not without interest; he must hold a degree of bachelor of arts, has to take a three years' course, and to pass an examination at the end of each year. The examination covers Roman and civil law, political economy, general history of French legislation, including colonial or industrial legislation, constitutional law, and the guaranty of individual freedom, as well as private and international law, criminal and commercial law, civil procedure, and the legal means of enforcing judgment. The avocat tries cases in the civil and criminal courts, but not in the Court of Cassation. For this court there is a special barrister called an avocat a la cour de Cassation. This court has no power to revise a judgment, but merely to send it back for a rehearing, not to the tribunal in which it was first tried, but to a tribunal of the same rank and grade in another department, the custom being not to submit the same case twice to the same tribunal.
The preparation for the English Bar is at the Inns of Court. These Inns carry the mind back to the depths of the Middle Ages. They touch upon the borders of Magna Charta and the Crusades. They suggest the time when, in 1181, attorneys appeared in England, and 1292, when sergeant-attorneys were appointed. They could not discuss the evidence, and could only advise the court on the law. The preparation necessary for admission to the English Bar has been enlarged and embraces an examination in Roman as well as in English law. Before a student can be admitted into one of the Inns of Court, he must stand an examination on the English and Latin languages and English history. Before he can be admitted to the Bar he must pass an examination to the satisfaction of the Council of Legal Education in Roman law and jurisprudence and in international law, public and private, as well as upon constitutional law and legal history and English law and equity. Some 20 years ago our friend, Sir Frederick Pollock, wrote in this connection thus: “A new scheme of lectures is about to be started by the Council of Legal Education. Everything will depend on the working of it. On paper it is certainly better than the old one; and if it be worked with zeal and intelligence the Inns of Court may possibly within a few years be not much inferior as a center of legal instruction to a second-rate American law school.”
In this country there is no uniform standard for admission to the Bar, but our laws schools are constantly advancing their curricula, and are recognizing the great fact that jurisprudence embraces or is closely related to all other sciences. They are not unmindful of the saying of Coke, that “there is no knowledge (seemeth it at the first of never so little moment) but it will stand the diligent student in stead at one time or the other.” Nor are they regardless of the demand of Rabelais, “ that juris. prudence should be reinforced by humanist culture, and that philosophy, history and science in general were indispensable to a true juris consult.” Yet, back of all preparation for the Bar