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do not profess either to impart new views of the law, or to place the old views in new lights. They are, in other words, full indexes to the reports. Thirdly, of elementary treatises or commentaries something was said in a previous section.1 The office of such a work is not well defined, but is substantially as follows: it gives the principles which have governed the decided cases, according to the author's views of those principles, stated in an orderly way. Fourthly, books of the mixed class, a very useful and convenient class, require no special observation. But it should be borne in mind, that these classifications refer to the actual characters and aims of the books, rather than to the names the authors may have given them. Not unfrequently a book which is a mere digest -not on that account to be undervalued - begins its titlepage with the word "treatise," or "commentary." If the book is of the mixed class, such a word is as appropriate as any other; because the English language has no term accurately conveying this common idea.
§ 33 a. Concerning treatises and commentaries, a further observation is necessary. Practically the words treatise and commentary are synonymous. Yet properly the latter word implies a greater blending of the author's mind in his works than the former; while perhaps the former carries the idea of greater completeness in the treatment of the subject than the latter. Most of the books which bear the names of treatises and commentaries, are really of the mixed class; though the proportions of digest and commentary put into the compound greatly vary. Perhaps something of the element digest improves the commentary; but generally a work is most useful which is either a commentary or a digest, unless its plan is large enough to embrace both fields in full.
§33 b. The usefulness of any book depends on the following things: first, its accuracy; secondly, its fulness; thirdly,
its convenience of reference; fourthly, its compactness; fifthly, its originality, as presenting matter not to be found elsewhere; sixthly, the perspicuity of its statements; seventhly, its subject-matter, as coming or not within actual wants. All these qualities may be possessed alike by reports, digests, treatises, and commentaries; with the exception that digests cannot be original.
$33 c. The student of the law needs to use all these classes of books. But the most important for him are treatises and commentaries. And he is benefited by them in proportion to the real ability with which they are written. No page of a properly written commentary can meet his eye, whatever be the particular legal subject of which it treats, without doing something to fit him for legal practice in every department of the law. But an ill devised and badly written book may injure his faculties, and misdirect his inquiries, though the positive statements of law it contains are not erroneous. No mistake is greater than to suppose, that the student requires only to be informed of the legal doctrines to which the courts have arrived. He needs first of all to cultivate his faculties, and secondly to learn how to learn. Most of his positive knowledge of legal points is acquired in his after life of practice.
§ 33 d. A book may be useful without being fitted for citation in the courts. Such a book is a digest: it contains nothing new, it merely helps us find the decisions. But a book to be cited must have something new in it; for the judges wish to be referred to original sources. An elementary treatise or commentary may and should contain what is new; if it does not, the author did wrong in making it public. The court, therefore, is properly referred to this original source. Its writer has perhaps cited multitudes of cases to establish a proposition; just as the discoverer of a law of nature cites the facts of nature as his authority. But the law of nature, though it always existed, is really, as stated by the discoverer, a new thing to the mind of man. And when the
doctrines in the treatise or commentary are not new in the absolute sense, they are new as standing in new relations, and clothed in original language.
§ 34. Practically, reports may be cited and read in the hearing of the judge. So may elementary treatises; but the weight to be given the latter as quasi authority varies greatly. Some of the works of the old masters, as Lord Coke, Sir Matthew Hale, Blackstone, and others, are regarded substantially as authority; because their books have stood the test of trial and time, and been found to be learned, and usually accurate. No modern treatise can have equal weight of the same kind; because, if as well written, it has not been as well tried. Still a good work of this sort is not the less worthy to be read to the judge;2 since, besides its references to the cases which support its deductions, it carries to the judicial mind the well-recognized likeness of truth, which answers instead of the outward assurance. Digests should not be referred to, except in rare cases of necessity, when access cannot be had to the reports. Some books which go under this name, however, like Comyn's Digest, may be practically regarded and used for this purpose as treatises. Concerning our fourth class of books, it is sufficient to say, that, if the quality of the treatise preponderates in them, and they are executed with skill and discrimination, they may be used substantially as treatises are, though more cautiously.
§ 31 a. Yet concerning the books to which the court is to be referred, many things are learned only in practice. The
1 Ante, § 32.
* It is said to be the English rule, that a text writer cannot be cited as authority, though he may be cited for whatever the judges think his writings are worth, while he is living. See observations in Reg. v. Ion, 2 Den. C. C. 475, 6 Cox C. C. 1, 16 Jur. 746, 14 Eng. L. & Eq. 556, 1 Ben. & H., Lead. Cas. 400; 1st Rep. Eng. Crim. Law Com. A. D. 1834, p. 3. The idea is absurd, that the weight of a legal proposition should depend on the circumstance, whether the individual announcing it lived or died afterward!
nature of the question may open a wide range, or confine the citations to narrow limits. Moreover, the judge may be a liberal or a narrow-minded man; and, as the practitioner wishes to carry his point, he will consult the mental habit of the judge, avoiding even a right course when it crosses the path toward this object. Let not this observation be understood as countenancing the policy of withholding real light from the court, in order to mislead. Every lawyer is bound by his oath to observe faith toward the tribunals before which he practises; and, though he is not to argue both sides of a question, he is still not to present garbled views.
THE PRACTICE OF THE LAW.
§ 346. THE object of the present chapter is neither to explain in full the duties of the lawyer, nor to unfold the principles of what is termed legal practice in the courts, but to state some things useful for the student to know.
§35. When a legal question is presented to a practitioner for his opinion, he has various methods of examining the point. Let us look at some of them; premising, that he will resort to them in such order as best suits his particular habits of mind. If the question is one of statute law, he consults the statute, instead of his recollection of it; because the words are not accurately remembered by most men. one of common law, or one depending on the construction of a statute, he has various methods of dealing with it, some of which methods will now be stated.
§ 35 a. Every case of doubt should be submitted to the double test of authority and principle. In other words, the inquirer after the law should seek both for analogous decisions, and for principles whereby the case may be decided.
§ 36. Let us suppose, that he resorts first to the test of authority. There are advantages in this order; because, while he is searching for cases, he may be gathering the material from which to weave his texture of principles. If he does not know of decisions bearing on the point, he will go