of the index, and looking at it alone, would see only a point. But if he examines further, he will find its reason sufficiently proximate thereto, and will find the point to be either an illustration or a bound of the reason. Not always is the reason one which will address itself to what we term the reasoning faculty of man, or natural reason, but sometimes it will be a mere technical rule, established by usage and decisions. Possibly I should have made this book more serviceable to extremely immature minds if I had swelled these two volumes to ten by distinguishing at each step the technical from the unconventional in the doctrines, and presenting at each point the full evolution of the law's thought leading to its enunciation. But I could not afford to write a book which I could not sell; and, what is more to the purpose, the maturity of mind which would render these superfluities needless must be acquired by the student before he becomes a practitioner, and it is doubtful whether so much help in his early walking would either strengthen his intellectual muscles or give him facility in their use. The reader anticipates me in the application to be here made of these truths. It is that the thing for the student to learn in this book is the reasoning therein, its exact limits, and the manner of its applications to varying and diverse facts. For it teaches the law's reasonings and methods, and it carefully excludes all personal reason. ings of the author. The points stand along the course as dots to show precisely where it lies. If no points were given, no learner could acquire the reasoning with due exactness, or remember and have it ready for application in practice. But by the means here employed, the reasoning becomes incorporated into the mind as part of itself, and there it abides, whether consciously to its possessor or not. The points will largely slip away from the memory, but, like the demolished scaffolding of a building, they will have done their work. If the student races through this book as through a novel or a sermon, he will find something useful adhering to his understanding. If the quantity is less than he expects, or the quality seems not quite of the first class, the fault is his, not mine, for he is forewarned. Immense advantage will come to the student if, while he reads, he will consult in the books of reports some of the cases which are cited. If his mind is growing, it will not be easy to restrain him from doing this. He will struggle to obtain wider views, to see how the judges talk about those presented in the book, to see how one case is made up of loose and inaccurate dicta, how clear and precise the doctrines in another case, how the court wholly overlooks the true reasoning in another, how neither the counsel nor the judge thought of some important thing in another; how, where a multitude of cases together sustain a particular doctrine of the text, each one alone may be as fragmentary and ineffectual as a single stick in a bundle, which, in its combined form, is rounded, compact, and strong; and so on through an endless succession of similar things. If he will not suffer himself simply to float on this disturbed current, but if he will look, will think, and then will row with his own hands, he will find himself day by day nearing the goal of his hopes. For, among other reasons, hereafter as a practitioner he will be compelled to deal both with text-books and with reported decisions, not simply as separate things, but combined. And he can duly qualify himself to become a practitioner only by the study and use of the two things together. This is a part of the student's life which he must live himself. If I am to tell him what cases to read, and how many cases, and how many hours a day to spend in this way, I am an obstruction, not a help, to his own walking. What I have thus said is but a small part of what might be said, yet it is the most important part, so I here close this topic. I am aware that some students will read otherwise in spite of all advice, and that their only serviceable teacher will be the one who makes higher charges than I, Experience. The Practitioner cannot be expected to use this book before a court in maintaining views contrary to its teachings. Yet he will find it serviceable as a digest, because of its references to the contrary cases; for they are even more scrupulously collected than those on the side which it deems right. And he will need no suggestions from me as to the methods of employing them. But where he seeks to procure from a court an adoption of its views, it will not always be safe simply to cite the cases referred to in connection with them. Our books of reports contain multitudes of cases correctly decided, yet for which wrong, or incomplete, or imperfect reasons are assigned, or from which the better or more convincing reasons are omitted. Simply to cite those cases, or read to the court the opinions therein, or add a mere reference to my book, or read from the book its conclusion without its reasoning leading thereto, would be an inadequate performance. And the book itself does not always give, or claim to give, the whole reasoning for a doctrine in the same section, or chapter, or even in the same volume wherein it is stated. The practitioner, therefore, should make the doctrine and the reasoning his own, and duly present all to the tribunal. There is believed to be no judge who will not assent to every — at least to nearly every proposition laid down in these volumes if his mind is duly enlightened on the subject. But where the make-up of a judicial mind is not compact and strong, where the mind is prejudiced, or where it is asked to look into what it believes to have been already duly considered and settled by others, while yet in fact the prejudice is unfounded and the decisions are mere blunders, the task of the practitioner who endeavors to enlighten the bench is delicate and difficult. The judge may refuse even seemingly to hear, or he may open his external ears and shut his inner understanding. Perhaps he has already considered and passed upon what he was told was "the argument," and then he may be unwilling to accept the idea that such argument was a blunder, or listen to a new and different Or there may be some other form of obstruction to the inflow of light into the judicial understanding; for the forms are numerous, perhaps infinite. Here are a wide scope and a loud call for discretion in the practitioner. Each one is presumed to know his own court, and I leave the further consideration of the questions to him. one. The Judge who is already satisfied that nothing from me is worth examining, will not read this paragraph. The other judges know that my books do not claim to be authorities, and that such claim, if they made it, would be absurd. Yet they know also, assuming them to be the judges of one of our States, that the modern English decisions, and those of the various sister States, and certain parts of those of the United States courts, are not authorities binding them. On the other hand, they know that the reason of the law is authoritative over them, and that it is immaterial whether it is uttered by a nonauthoritative voice, by a prior voice from their own court, or by a voice first springing up in their own inner understandings. To find the voice of the law, I have attempted to read every pertinent judicial decision of every court from whatever country wherein the common law is administered, and there are not many decisions which I have not succeeded in finding and reading. Not all that I have read are here cited, but mainly they are; for somewhere there must be a limit. And I have consulted those laws which exist in the framework of things, and which all the tribunals of earth are powerless to overturn; for sometimes, though happily not often, their overthrow is judicially attempted. With all this matter before me at each step, and constantly, by every means, and without preconceived opinions to bias. me, seeking the exact truth of the law, I have written what is here set down. I do not claim that this matter is absolutely without error; but I do claim, and with the fullest assurance, that there is in it so much probability of truth as to render a careful examination of it more consonant with the judicial habit than to reject a particular doctrine by a mere impulse, without examination and without reflection. Beyond this, while the cases to which a court listens are often argued with real ability, not unfrequently also the arguments are frivolous, not presenting on either side the true views of the law, and even omitting relevant authorities. I could illustrate this by abundant instances, but no judge can ever have served long and intelligently on any bench without knowing this to be true. And no one can fail to see that a text-writer whose work is produced while everything lies before him, and after everything has been separately examined and pondered, and who takes the whole subject into contemplation in considering each particular part of it, is in an immeasurably better condition to reach right conclusions than can be a judicial person who examines simply a particular speck brought to him from the juridical field, while most of the field itself is shut from his view. Here is no just reason why my conclusions should be followed, but it is a reason, which I claim to be palpable to every understanding, why they should not be rejected without an intelligent examination. III. What are the Hoped-for Results. By precept, if not by example, I have taught in these and other volumes the duty of looking and thinking. I do not prophesy whether or not men will listen to my words. I am speaking of what is hoped for. It is my hope that the time will come when the legal profession will read something and think of something besides the floods of half-considered cases with which our overburdened courts are groaning. But what a revolution! CAMBRIDGE, October, 1892. J. P. B. |