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THE BAR AS A PROFESSION *
THE main thoughts of the fine paper on “The Bar as a Profession,” by the Lord Chief Justice of England, in the Companion of February 13, 1896, are as true for America as for England; but possibly a few local variations on his theme may have their
It is not likely here that anybody will be prejudiced against business or will take formal views of the dignity of callings such as a hundred years ago put the ministry first, law and medicine next, and below them all other pursuits. The real beliefs of the world to-day are commercial, and money and the means of making it are in no danger of being undervalued.
I should say that one of the good things about the law is that it does not pursue money directly. When you sell goods the price which you get and your own interests are what you think about in the affair. When you try a case you think about the ways to win it and the interests of your client. In the long run this affects one's whole habit of mind, as anyone will notice if he talks much with men.
In the twenty-five years that I have known English lawyers it has seemed to me that a scholastic type of man has more chance of success in England than
* Reprinted from the Youth's Companion for 1896.
here, where the men at the top are usually hard fighters. At all events, scholarliness as a social accomplishment is more important there than here, and this would lead me to lay somewhat less weight upon a university training than is done by the Lord Chief Justice.
I will not go so far as a jesting friend of mine once did and say that the main use of a university education is to learn the humbug of it. I think it very useful and very important to a man as a man. But in this country I do not think it quite so important to a lawyer as a lawyer.
A certain amount of education a man must have who constantly is using books. It will save him trouble if he understands an occasional scrap of Latin when he comes across it. But a man may sweep juries before him, command the attention of judges, counsel sagely in great affairs, or be a leader in any senate of the country with nothing of the scholarly about him.
I say this not to make light of the good of going to college, but by way of encouragement to those who doubt whether their inability to go there does not take away hope of success in the law. I have had letters from young men beset with the doubt, and always have told them that it is no ground for despair.
If a man misses a university education it may be made up to him in part by the way we study law in this country; for that also is different from the English way. I think all the lawyers I know here
abouts would agree that the place for a young man to study law is a law school, not a lawyer's office.
We have a great many law schools in the United States in which a great many able and more or less distinguished men are teachers. I will mention that at Cambridge, not by way of invidious comparison, but as that which I know best. If a young man can afford to study there for two, or even three years,
he will not regret a month of it when he comes to practice.
After the law school spend six months in a good office, to see how things are done, and also perhaps to get a little of the usual law student's conceit rubbed off, and then begin. Practice, in Massachusetts at least, is very easily understood.
What needs time is not to learn the routine of clerk's offices or what a writ looks like, but to master profoundly and in detail the great body of the law. This is done far better in a law school in the midst of a catching enthusiasm than it can be in the listless solitude of an office, and the companionship and intellectual excitement which are found in the school take the place to many of the experience which they missed at an earlier stage.
In a law school the lines of study are marked out, of course, and the student will not be likely to find much time for the Roman law. If he studies that, it will be in his months of waiting for clients. But in spite of the very great authority by which the study of it is recommended, I never have been able to believe that it has the value so often supposed.
A system of law at any time is the resultant of present needs and present notions of what is wise and right on the one hand, and, on the other, of rules handed down from earlier states of society and embodying needs and notions which more or less have passed away.
To get to the bottom of any system, therefore, a good deal of history has to be studied, and this is true of the law under which we live now.
But our law has reached broader and more profound generalizations than the Roman law, and at the same time far surpasses it in the detail with which it has been worked out.
One who is master of our own will master any civilized body of law with ease. But while he is engaged in mastering one, I doubt the wisdom of adding to his difficulties by the attempt to learn another system which is even more in need than ours of historical explanation at every step, a large part of which is obsolete, and a part of which is hard to understand even in the best modern books. I cannot help suspecting that the advantages attributed to his study of it by the Lord Chief Justice were due to Sir Henry Maine more than to the Roman law.
The main roots of our law are Frankish, not Roman, and many ideas which formerly were supposed, and in the common books still are supposed, to have come from Rome are now traced to the Lex Salica and the folk-law which left its mark in the Germania of Tacitus. The last will is almost the
only conception of first-rate importance which has a Roman origin, so far as I know.
Of course I recognize that a man hardly can be called accomplished in his profession who knows nothing of Roman law, and more particularly of the great Germans who have taught it in this century, but I am speaking of how to learn law for practice.
The study of jurisprudence is a different matter. When properly taught, jurisprudence means simply the broadest generalization of the principles and the deepest analysis of the ideas at the bottom of an actual system. It is the same process, carried further, by which the law is carried out from particular cases into general rules. A young man who has understood John Austin's tedious and often mistaken book has taken a real step forward, while Sir Henry Maine makes him feel as if his whole road were strewn with diamonds.
The means of thoroughly understanding the law now within every one's reach are very different from those with which we had to content ourselves when I was a student. Studied as it may be studied and as there are now many encouragements to study it, Burke no longer would fear, I think, that it would sharpen the mind by narrowing it.
One of the courses to be pursued is the anatomy of legal ideas worked out by the English school of jurisprudence; another is the embryology of the same conceptions to be found in history as the Germans have taught it to the world.
With regard to the chances of success, I remember