The Green Bag (1889–1914)/Volume 1

From Wikisource
Jump to navigation Jump to search

The Green Bag

Spencer Weightman Arthur Wrightington, Russell Sydney Baldwin, Tileston Thomas Fuller, Williams




A Useless but Entertaining Magazine for Lawyers

Edited by Horace W. Fuller

Volume I

covering the year




Copyright, 1889,
By The Boston Book Company.

University Press:
John Wilson and Son, Cambridge.


Chief-Justice Fuller Lord Chief-Justice Cockburn .


PACE I 45 89

• 413


. ■

. •

13 15


• •

• ■



... ...

194 197







... 338


145 147

... . • • • • • • ...

• J8f 383 385 389

Copyright, 1889,
By The Boston Book Company.

University Press:
John Wilson and Son, Cambridge.


Chief-Justice Fuller Lord Chief-Justice Cockburn .... Chief-Justice Shaw Sidney Bartlett Stanley MATraEws William Henry Rawle Rufus Choate Robert Todd Lincoln Judah P. Benjamin Attorney-General Miller Jeremiah Mason Irving Browne Joseph Story Simon Greenleaf Joel Parker ..... Theophilus Parsons Emory Washburn Christopher C Langdell Francis Wharton Henry W. Paine Dwight Foster Melville M. Bigelow Edmund H. Bennett George Sharswood Peter McCall J. I. Clark Hare P. Pemberton Morris E. Spencer Miller E. Copp£e Mitchell James Kent Ham1lton Fish Samuel B. Ruggles George T. Strong Theodore W. Dwight

PAGE i 45 89 133 181 229 273 321 365 <M3 461 509 12 13 15 17 21 23 55 57 59 61 63 101 102 103 104 105 106 143 145 147 149 153

Francis Lieber Charles P. Daly Thomas M. Cooley James V. Campbell Henry Wade Rogers Levi T. Griffin Will1am P. Wells Henry B. Brown Bradley M. Thompson Jerome C. Knowlton David Daggett Will1am L. Storrs Francis Wayland Edward J. Phelps William C Robinson Simeon E. Baldwin Johnson T. Plait William K. Townsend Samuel Treat Alexander Martin Henry Hitchcock Will1am G. Hammond Thomas Hoyne Henry Booth Marshall D. Ewell Lyman Trumbull James L. High George G. Wright John F. Dillon James M. Love Austin Adams Lewis W. Ross Emlin McCi-ain Fred Gilman

PAGE 155 157 191 194 197 199 201 203 205 207 241 243 245 248 249 250 251 253 284 285 287 289 332 333 335 337 33** 377 379 • • *.J8$ 383 385 389 391 iv

|The Green Bag.|}}

Charles Daniels ... Charles Beckwtth ... George S. VVardwell .... ... Loran L. Lewis ... Spencer Clinton ... James Frazer Gluck .... ... . .. . Adelbert Moot John G. Milburn ... . . . LeRoy Parker • • • Tracy C. Becker Charles Kendall Adams . . . • • • Douglas Boardman ...

PAGE 423 423 Daniel H. Chamberlain 425 425 427 427 429 429 431 433 475 477




... ...

PAGE 478 479

... 482 ... 485 ...


Green Bag Vol. 1 p. iv tailpiece.jpg




PAGE PAGE 383 Buffalo Law School, The (Illustrated) . . 421 .... 482 Adams, Charles Kendall (Portrait) . . . 475 Burdick, Francis M. (Portrait) Advice to a Young Lawyer (In Verse) . . 373 540 194 294 97 American Bar, An English View of the . . 414 Ancient Legal Education in the Inns of Court 68 Causes C£lebres : — Anglo-Saxons, The Criminal Code of the 186 28 Antiquities, Legal 38, 81, 124, 172, 222, 265,314, 72 358, 408, 454, 503 . 547 III. The Mystery of the Rue de Vaugirard 1 08 Attorney-General Miller (With Portrait) . . 4i3 163 211 47 260 209 298 250 345 Balloon and the Garden Sauce, The (In Verse) 281 398 489 X. Frederic Benoit 443 XI. Helene Jegado 449 493 Bartlett, Sidney (With Portrait) .... 133 XII. Louis de la Pivardiere .... 537 433 423 Chamberlain, Daniel H. (Portrait) .... 479 308 Character of a Solicitor in 1675 .... 219 Benjamin, Judah P. (With Portrait) . . . 365 183 Bennett, Edmund H. (Portrait) .... 63 Chief-Justice Fuller (With Portrait) . . . 1 Benoit, Frederic (Cause Celebre) .... 443 Chief-Justice Shaw (With Portrait) . . . 89 61 Bigelow, Melville M. (Portrait) .... 498 273 477 Choate, Rufus (With Portrait) 525 Chronicle of the Green Bag (In Verse) . . 369 Book Notices 44, 88, 132, 179, 228, 272, 320, 354 364, 412, 459, 508, 551 292 427 333 Boston University Law School (Illustrated) 54 Cockburn, Lord Chief-Justice (With Portrait) 45 203 Brown, Henry B. (Portrait) 481 Browne, Irving (With Portrait) .... 5°9 1 Columbia College Law School (Illustrated) 141 vi

|The Green Bag.|}}


Common Errors and Deficiencies in Law Reporting Common Law, German Customs a Source of Contracts, Specific Performance of . . . Cooley, Thomas M. (Portrait) Cornell University School of Law (Illustrated) Country Lawyer's Christmas Eve, A . . . Covering up Crime Cow and the Maple Syrup, The (In Verse) . Criminal Code of the Anglo-Saxons, The . Curiosities of Jury Trials Customs, Barbarous Legal

436 168 26 191 473 528 492 470 186 309 489

Daggett, David (Portrait) 241 Daly, Charles P. (Portrait) 157 D'Anglade (Cause C6lebre) 260 Daniels, Charles (Portrait) 423 Deaths, Recent 42, 87, 130, 177, 226, 270, 318, 362, 411, 458, 507, 549 Dillon, John F. (Portrait) 379 Dip into my Law Books, A 234 Dooling v. Budget Publishing Company (In Verse) 419 Dreams before the Law Courts 258 Dwight, Theodore W. (Portrait) .... 153

PAGE Fraudulent Conveyances, Early Legislation against Fr6denc B6noit (Cause Celebre) .... French Lawyer, Gossip of an Old . . . . Front and Rear (Poem) Frost v. Knight (In Verse) Fuller, Chief-Justice (With Portrait) ...

135 443 117 7 161 1

German Customs, A Source of Common Law 168 Gilman, Fred (Portrait) 391 Gluck, James Frazer (Portrait) 427 Gossip of an Old French Lawyer . . . . 117 Great Seal, The 231 Green Bag, The 37, 81, 123, 171, 221, 265, 313, 357. 407, 453. 5°i, 545 Green Bag, The Chronicle of the (In Verse) 369 Greenleaf, Simon (Portrait) 13 Griffin, Levi T. (Portrait) 199

Hammond, William G. (Portrait) .... 289 Hare, J. I. Clark (Portrait) 103 Harvard Law School, The (Illustrated) . . 10 Hastings, Robert P. (Portrait) 524 Hastings, S. C. (Portrait) 519 Hastings College of the Law (Illustrated) . 518 Hdlene J6gado (Cause Celebre) .... 493 E Machina Jus 341 High, James L. (Portrait) 338 Early Days of Advocacy, The 540 Hitchcock, Henry (Portrait) 287 Early Legislation against Fraudulent Convey Hoyne, Thomas (Portrait) 332 ances . 135 Edinburgh, The Law Courts in .... 79 Inns of Court, Customs 121 Elicabide (Cause Celebre) 298 Iowa, Law Department, State University of 374 English Prisons, A Visit to some .... 92 English View of the American Bar, An . . 414 Jacques, Lebrun (Cause Celebre) . . . . 211 Enigmas of Justice 254, 325, 463 Jacques Verdure (Cause Celebre) .... 163 309 Evans, Oliver P. (Portrait) 523 Jury Trials, Curiosities of Evolution of a Barrister, The 449 372 Ewell, Marshall D. (Portrait) 335 Kafir Lawsuit, A Kent, James (Portrait) 143 Extenuating Circumstances 323 Knowlton, Jerome C. (Portrait) .... 207 Facetiae 39, 83, 125, 173, 222, 266, 314, 358, 409, 454' 5°3, 547 Lafarge, Madame (Cause Celebre) . . . 398 23 Finch, Francis Miles (Portrait) . . . . 478 Langdell, Christopher C. (Portrait) ... Fish, Hamilton (Portrait) 145 Law and Medicine in the Sixteenth Century 395 79 Foster, Dwight (Portrait) 59 Law Courts in Edinburgh, The Index to Volume I. PAGE Law Department, State University of Iowa 374 Law Reporting, Common Errors and Defi-

Morris, P. Pemberton (Portrait) . . 436 Mystery of the Rue de Vaugirard, The (Cause 275

vii PACE 429 294 IO4 108

New England, Primitive Law in . . 278 10 Notes 41, 85, 127, 175, 225, 268,316,361, 4IO, 456. 5°5. 548 54 99 141 526 189 45 « 239 5'3 121 283 Union College of Law, Chicago . . . 330 354 374 421 57 38 473 Hastings College of the Law .... 5i8 5" 15 43i 339 Legal Antiquities 38, 81, 124, 172, 222, 265, 3i4. 17 358, 408, 454, 503, 547 183 489 Pennsylvania, Law School of University of Legal Education, Ancient, in the Inns of Court 68 99 492 533 187 72 236 425 Petroleum Ointment Case (In Verse) . 155 248 Lincoln, Robert Todd (With Portrait) . . 321 251 138 308 Louis de la Pivardiere (Cause Celebre) . . 537 520 442 38i Primitive Law in New England . . 278 140 285 Putting New Wine into Old Bottles . Mason, Jeremiah (With Portrait) .... 461 Matthews, Justice Stanley (With Portrait) . 181 Rawle, William Henry (With Portrait) « • 229 102 Recent Deaths 42, 87, 130, 177, 226, 270, 318, 362, 411, 458, 507, 549 389 522 Reviews 43, 87, 131, 178, 227, 271, 320, 363. Michigan, Law School of the University of . 189 412, 459 507 550 429 Robinson, William C. (Portrait) . . • . 249 Miller, Attorney-General (With Portrait) . 413 Rogers, Henry Wade (Portrait) . . 197 io5 403 106 275 Law School Articles (Illustrated). Vlll

|The Green Bag.|}}

Ross, Lewis W. (Portrait) Ruggles, Samuel B. (Portrait) St. Louis Law School (Illustrated) .... Selden Society, The Sharswood, George (Portrait) Shaw, Chief-Justice (With Portrait) ... Sidney, Bartlett (With Portrait) .... Sign of the Rarn, The (In Verse) .... Smith v. Marrable (In Verse) Solicitor, Character of a, in 1675 .... Specific Performance of Contracts .... Storrs, William L. (Portrait) Story, Joseph (Portrait) Strange Tenures Strong, George T. (Portrait) Temple, The Tenures, Strange Thompson, Bradley M. (Portrait) .... Time's Sponge Toombs (A Sonnet)

PAGE PAGE 385 Townsend, William K. (Portrait) .... 253 284 147 Treat, Samuel (Portrait) Trumbull, Lyman (Portrait) 337 283 Tuttle, Herbert (Portrait) 487 34 Tyler, Moses Coit (Portrait) 485 101 89 Union College of Law, Chicago (Illustrated) 330 133 Victoire Salmon (Cause Celebre) .... 345 328 Visit to some English Prisons, A . . . . 92 65 219 Wardwell, George S. (Portrait) 425 26 Washburn, Emory (Portrait) 21 243 Wayland, Francis (Portrait) 245 12 Wells, William P. (Portrait) 201 416 Wharton, Francis (Portrait) 55 149 Whitechapel Tragedies, The 3 Wicked Shoemaker and Sacrilegious Farmer, 115 The (In Verse) 515 416 Wills in Fiction 467 205 Wright, George G. (Portrait) 377 367 239 185 Yale Law School (Illustrated)

Green Bag Vol. 1 p. viii tailpiece.jpg

The Green Bag.

Vol. I. No. 1.
January, 1889.


AS questions are frequently asked respecting the ancestors or progenitors of Melville Weston Fuller, the present Chief Justice of the United States, it may not be amiss to refer to a little of our New England history. About the year 1632 there came to this country Rev. Thomas Weld, a graduate of Cambridge University, England; a prominent and influential man, who became the first minister of the first church in Roxbury (now a part of Boston), and was "the preacher" there when Eliot the apostle was "the teacher." His son, Rev. Thomas Weld 2d, in 1642, was settled in Dedham, and his son. Rev. Thomas Weld 3d, was settled in Dunstable; and both were prominent and respected. The last-named of these was the father of the famous Habijah Weld, who for fifty-five years was the settled minister of Attleborough. He is described, in "Dwight's Travels in New England," as an orator of great virtue and power, a perfect Boanerges in the pulpit, and was honored and beloved by all who knew him. He was born Sept. 2, 1702; and as his father died a few weeks after his birth, the mother gave him the Hebrew name "Habijah," which signifies, "God is my father."

Hannah Weld, one of the daughters of Habijah, married Rev. Caleb Fuller; and Elizabeth Weld, another daughter, married John Shaw, of Barnstable, in 1764, from whom the late Chief Justice Shaw, of the Supreme Court of Massachusetts, descended: so that the Chief Justice of the United States and the late Chief Justice of Massachusetts are both descendants of that celebrated Puritan preacher.

The father of Caleb Fuller was Rev. Daniel Fuller, who graduated at Yale in 1721, studied for the ministry, and in 1725 preached in Windsor and afterwards at Wellington, Conn., and died Dec. 9, 1758. He was a distinguished citizen of Dedham, a large land-owner there; and in 1702, and for five years, was one of the selectmen of that town, and a representative of the town in the General Court in 1723 and 1724. He married Esther Fisher in 1668, who was the sister of the great proscribed patriot and bold captain Daniel Fisher, of Dedham, who, in 1682, was the Speaker of the General Court, and was prosecuted by the British Government for sedition. He was the Daniel Fisher who "hated the tyrant" Sir Edmund Andros, then governor, and in the midst of an excited and turbulent mob in Boston seized Andros by the back of the neck and led him pale and trembling through the angry crowd, from the house of Mr. Usher to Fort Hill; thus securing him as a prisoner and saving him from further violence.

The grandfather of Rev. Daniel Fuller was Thomas Fuller, who in 1642 was a leading man in Dedham; a selectman of the town in 1663, and for fourteen consecutive years. He married Hannah Flower in 1643, and died Sept. 28, 1690.

The Rev. Caleb Fuller graduated at Yale in 1758, was made A.M. in 1762, and was settled as a minister for some time in Hanover, N. H.; but owing to a weakness of the throat gave up preaching, and died there at a good old age, in 1815, honored and beloved. His son, Hon. Henry Weld Fuller, grandfather of the Chief Justice, was born at Middletown, Jan. 1, 1784; was a classmate and intimate friend of Daniel Webster at Dartmouth College, and was originally named for his grandfather "Habijah," but his name was afterwards changed to Henry Weld. He was a sound lawyer, and for many years and at the time of his death a judge of probate in Kennebec County, Maine. He married Esther Gould, a sister of the poetess, Hannah Flagg Gould, and died Jan. 29, 1841. The volume entitled "The Courts and Lawyers of Maine" says of him:—

"His practice was extensive and profitable, and he had one of the largest dockets in the county. He was much valued for his integrity, hospitality, warmth of heart, and kindliness of manner. A man of great public spirit, and his death was a great loss to society."

He resided at Augusta, Maine, and was greatly interested in its growth.

Frederick Augustus Fuller, son of Henry W., was born at Augusta, Maine, Oct. 5, 1806; studied law at the Harvard Law School and with his father, and was a sound lawyer, and for a long time chairman of the County Com missioners of Penobscot County. He was the father of Chief Justice Fuller, and died Jan. 29, 1849. He married Catherine Weston, a daughter of Hon. Nathan Weston, an eminent judge of the Supreme Court of the State of Maine, being associate justice from 1820 to 1834, and chief justice from 1834 to 1841.

Such are some of the antecedents of our new chief justice which tend to show the general characteristics of his ancestry. We will now come to the man himself.

Melville Weston Fuller was born in Augusta, Maine, on the 11th day of February, 1833. At the age of sixteen he entered Bowdoin College, graduating in 1853. He began the study of the law in the office of his uncle, George Melville Weston, at Bangor. He also attended a course of lectures at the Harvard Law School. In 1855 he commenced to practise in Augusta, entering into partnership with his uncle, Hon. Benjamin A. G. Fuller, with whom he also at the same time edited "The Age," then one of the leading Democratic papers in the State. In 1856 he was elected to the Common Council of Augusta, and became its president, performing also the duties of City Solicitor. Although but twenty-three years of age, he had already developed remarkable qualities as a lawyer and an enviable position at the bar of his native State was assured him, when he determined to go West. He therefore resigned his position in the Council, and before the year 1856 had closed he had settled in Chicago.

There his abilities were speedily recognized, and he at once established a practice which continued to grow until he soon stood in the foremost rank of the profession. His most famous case was that which was known as the "Cheney case," in which an ecclesiastical council undertook to discipline Bishop Cheney on a charge of canonical disobedience. Mr. Fuller appeared in defence of the Bishop, and displayed such a knowledge of ecclesiastical law and such a familiarity with the writings of the Church Fathers as to astonish even the well-trained church men before whom the trial was had. His argument of this case before the Supreme Court of Illinois, to which tribunal the matter finally went, has been pronounced a masterpiece of forensic skill and eloquence.

His practice has been a general one; and a marked characteristic of his legal methods has h^n the thoroughness with which his cases nave been prepared. Although possessed of quick perceptive faculties and working with facility and ease, he studied his cases closely and carefully, and always went into court fully armed for the contest. As a fluent, earnest, and convincing advocate he had few equals. Always dignified and courteous, never descending to unfairness or trickery, he won alike the respect of the court and the esteem of his associates at the bar.

Of late years Mr. Fuller has had an extensive practice in the Federal Courts; and it is and is a ripe scholar in the classics. He a curious coincidence that in the first case will bring to the high poskion to which he heard before the late Chief Justice Waite has been appointed a rare culture and such when he went upon the bench (Tappan v. attainments as few lawyers possess. Socially Merchants National Bank) Mr. Fuller, who he is a gentleman of courtly dignity and succeeds him, was of counsel. That was in presence, with a kindly, amiable manner 1874; and since that time, and for some indicative of a warm heart and generous years before, scarcely a term has passed in impulses. which he has not had a case upon the The appointment of Mr. Fuller has been most favorably received by the legal profes docket. In 1 86 1 he was a member of the conven sion throughout the country. Even his tion called to revise the constitution of the strongest political opponents were among State of Illinois, in which he took an active the first to recognize his eminent fitness for part and by his legal abilities rendered the position. Called in the vigor of his marked services. In 1862 he was elected manhood from the active practice of the bar, to the Illinois legislature, in which body he a lawyer of wide experience and command served one term. ing position in his profession, and a citizen Mr. Fuller is a man of scholarly habits, I of the highest personal character, he will and some of his more important arguments I undoubtedly prove a worthy successor of are mines of philosophical research. He is Jay and Marshall and Taney and Chase and familiar with several continental languages, 1 Waite.

THE WHITE CHAPEL TRAGEDIES. UP to the present time the perpetrator or perpetrators of that series of murders known as the Whitechapel tragedies are still at large; and so far as public information goes, no important clew to his or their where abouts has been found. The London popu lace has displayed its habitual characteristics in connection with these crimes. There has been the usual unreasoning panic, — excusa ble, perhaps, among the wretched womc /ho belong to the class from which the several victims have seemingly been chosen; barely excusable, too, on the part of the people who reside in the districts where such daring as sassinations have occurred; but surely in no degree to be justified in the case of the edu cated and reasoning citizen at large, or in the case of any section of the metropolitan press. On the subject of the murders the London public has produced a greater quantity of egregiously foolish utterances, in the differ

ent shapes of rumor, comment, and so-called suggestion, than could have been collected from a similar number of people in any part of the world. It has also, as a matter of course, blamed the police; while at the same time it has, doubtless with the best intention, done probably as much as in it lay to in crease the difficulties in the way of detection. All this was to be looked for. It constitutes one of the most formidable difficulties with which the police are confronted in a case of the kind. And it is hardly to be wondered at, in the circumstances, that many of those engaged in the detection of crime should be willing to dispense with the slight assistance which is to be gained by partially taking the public into their confidence, since it is so disproportionate a compensation for what is thereby lost. The fact, however, that the murderer or murderers have still to be tracked out is an in instructive one. For several weeks all the skill and all the effort of a great system of police have utterly failed to connect any one with a series of atrocious murders, committed not in solitary places, but in one of the most densely populated districts of London; not in the recesses of some lonely wood, but on the public streets of the largest city in the world. The murderer has succeeded in avoiding sus picion during all this time. No doubt the

almost certain. But something further must first emerge before they can be of use in con necting a criminal with the crimes. So far from giving a clew, they would seem to con spire to baffle the police, who, to judge from indiscriminate arrests and wholesale search, are not yet on the track.

It may not be amiss to consider for a little some of the peculiar features of these mur ders, in view of the theory which has been

very immensity of the population may be an put forward and widely favored, that they element of safety to the guilty person in such are the handiwork of a homicidal maniac. Without at all prejudging the case, we may a case. If he once get clear of the imme diate vicinity of his victim, concealment and discuss shortly how far the facts give color escape are obviously more easy amid such a to this explanation, and how far they con throng, even should he have been momen sist with alleged instances of this mono tarily seen in suspicious circumstances. But mania, — the monomanie tneurtrihre of the should no one have seen the deed, and should French alienists. no one have seen the murderer near the spot, In so far as possible we shall, in these few even for a moment, it is not unlike the pro remarks, avoid touching on the question of verbial looking for a needle in a haystack to the reality or non-reality of what is known begin to seek for him among some hundreds by the various names of Affective Insanity, of thousands of men, not to mention the Moral Mania, and, in the language of Pinel, watching of all the countless egresses from who first maintained its existence, Manie {on the neighborhood. Monomanie*) sans aV/ire. This derangement Yet, after making due allowance for these is defined by Pritchard as consisting in " a considerations, it is surprising that, in the morbid perversion of the natural feelings, present cases, there has been a failure to dis affections, inclinations, temper, habits, and cover the perpetrator or perpetrators of the moral dispositions, without any notable deeds; for they have not been ordinary mur lesion of the intellect or knowing and ders. They have not been simple in their reasoning faculties, and particularly without character or bare of particulars. Not only any maniacal hallucination." The reality of are the details as revolting as any which the such a state has been maintained, though records of medical jurisprudence contain; with certain qualifications, by such distin they are also marked by certain characteris guished alienists as Pinel, Esquirol, Georget, tics which at first sight would seem to afford Gale, Rush, Pritchard, Ray, and Professor a peculiarly strong likelihood of the crimes Maudsley. Yet many call that reality in being cleared up. The very number of the question, and deny the existence of an irre crimes, the almost exact repetition of the sistible criminal impulse in minds otherwise murderer's procedure in each, the similarity sound. " Public writers and lawyers," says of hour and circumstances, the elaborate mu Dr. Maudsley, " naturally jealous of the ap tilation of the bodies, the selection of victims plication of the doctrine to excuse crime, from one sex and class only, and the like, — have rejected and reviled it as a dangerous these things might not unnaturally be ex and absurd legal crotchet; having been prob ably the more moved to do so because they pected to give some clew. Yet this abun dance of circumstances gives none. That perceive that, if it be admitted, they will be all these facts will be strong links in the impotent, by reason of their ignorance of in chain of circumstantial evidence hereafter is sanity, to put a proper check upon its appli- 1 cation." It is better not to expose one's self ure. From this ground of sheer brutality by to the reproach of this too keen controver itself no inference of madness ought ever to sialist in a place where there is not space be drawn. Some of the most barbarous to defend one's position. So we pronounce murders on record have been perpetrated by neither on the one side nor the other. M. admittedly sane men, — men on whose per Breschet remarks that the line of demarca fect soundness of mind no doubt has ever tion between depravity and madness is very been cast. Nor is it to be forgotten that an difficult to draw. This is sufficient for us. ordinary execution in this country of ours in bygone times was certainly not inferior in It is also the gist of the matter. For, ad mitting, for the moment, the existence of a savagery to these London outrages. Dis pathological phenomenon of a perversion of embowelling and plucking out the heart the affections without a derangement of the while the victim still breathed, and quarter intellect, there is a further question, not to ing after death, were regular practices, sanc be settled off-hand by mere generalities : tioned by public opinion, ordained by men whom we still count enlightened. It cannot Ought such a form of mental disorder to in volve irresponsibility for crime in the same be pretended that these, continued for cen way as intellectual disorder? Even Profes turies, were evidences of insanity on the sor Maudsley shrinks from answering this part of the people who permitted their inflic universally in the affirmative, and considers tion. They were evidences of the coarse and the admission of a modified responsibility, brutal side of human nature, — sane and according to the special circumstances of the sound human nature, — which it is the func tion of criminal law to repress. Uncivilized case, to be " the truest justice." It was the very atrocity of the Whitechapel savages, too, of our own time still revel daily murders that gave rise to the theory of their in atrocious cruelties, even to hear of which being the work of a madman. It is not a makes one shudder. Yet we do not stamp novel line of reasoning, this. Georget, when these races as universally mad and irrespon dealing with the notorious case of Antoine sible. No more is mere barbarity when dis Leger, who was tried in 1824 for the violation played in our own time and country to be and murder of a girl of twelve, remarks : " The regarded as necessarily a symptom of mental more strange and unheard of a crime is, the derangement, or of anything but great de less need one seek for its cause among the pravity. The mutilation of the bodies of ordinary motives of human actions." Only these wretched women in East London, taken let the deed be surpassingly barbarous, and by itself, is no indication whatever of insanity the ordinary mind will at once leap to the on the part of the perpetrator or perpetrators conclusion that it was a maniac who wrought of the deeds. It is said that the hypothesis of insanity it. Its very wantonness and shocking bru tality are considered inexplicable on any as an explanation of these startling crimes other hypothesis save that of an unhinged is borne out by the apparent absence of any and disordered mind. Now, the inference is thing like an adequate motive. The circumstances certainly point to none. quite fallacious. There are many extraneous considerations to be kept in view, — as, for The existence of the customary motives to example, that the mutilation may be a mere murder seem to be negatived by all that is ruse in order to mislead the investigators, or known. The object cannot have been rob even, should the culprit look so far ahead, to bery or gain; the poverty of the murdered give color to a plea of insanity when things woman in each case negatives that. Assas reach that pass. But putting such aside for sination can scarcely have resulted from an the present, it is rash to conclude that there impulse of sudden anger; the very number and similarity of the crimes negative such a is any limit to the depravity of human nat 6|The Green Bag.|}}

possibility. As unlikely is it that the mo sence of reasonable motive and presence of tive was a long-cherished revenge; the fact unreasonable motive — the play of hallucina that the butchery was practised, not on an tions and delusions — may turn out to be a individual or set of individuals, but on the plausible explanation. But in so far as mo members of a class (apparently on such mem tive goes, the theory that these crimes are bers merely as chance threw first in the mur the results of monomanie sans ddlire seems derer's way) seems to negative that idea. untenable. The suggestion that the crimes were com They bear no resemblance to the few in mitted for the sake of obtaining from the stances of this alleged disease recorded, and bodies a certain organ to be sold for scien repeated in every medical treatise on the tific purposes is, of course, untenable. The subject. A sudden and " unaccountable " de state of the market for such articles nega sire to take life, — a wife waking in the night tives the hypothesis. One fails to descry with an irresistible impulse to kill the hus any motive. But this failure is no ground band at her side, with no reason for it, and for inferring insanity, and it would be danger in spite of a strong affection for him; a ser ous to so regard it. Apparent absence of vant, while undressing a child of whom she motive is no criterion. No doubt, in cases had charge, being struck with the whiteness of of alleged kleptomania this element is of first its skin, and thereby possessed of an impulse to murder it, and so forth, — an inexplicable importance. If a person in comfortable cir cumstances financially, with the means even craving, which is not persistent. But here of giving charity to others, secretly fill her we have something different. The impulse pockets with bread at the table of a friend (as was to all appearance sustained, — unless, in in an authentic case, recorded by Dr. Rush), deed, these various murders turn out to be the certainly the absence of reasonable motive is work of several individuals, and those uncon all but conclusive of an irresistible propensity nected with each other, the later cases being to steal. But in this respect the crime of the result of a morbid imitation of the earlier. theft stands absolutely alone. And even in It was not a sudden flash out of a propensity to kill. It was persistent or recurrent. A the case of theft, were the article stolen any thing but a commodity-readily obtainable in most common evidence of this so-called in quantity by the wealthy purloiner, — were it, sane and irresistible impulse is the voluntary for example, a curio or article of virtu, — confession of the act. Immediately the im mere affluence would not infer absence of pulse is gratified it seems to pass off, and the murderer quietly surrenders himself to the motive. In the case of any other crime, it is the proper authorities. This is a strong argu extreme of rashness to conclude that motive ment in favor of the insane nature of the is absent, because it is unascertainable, and impulse. It will, we believe, be acknowl even defies conjecture. If one but practise- edged by medical observers to be the fact, a little introspection, the variety and the ap that of those alleged homicidal maniacs who parently trifling nature of the motives which fly after committing the murder, all show un sometimes actuate man, even in innocent mistakable symptoms of intellectual insanity. matters, must strike him. Further, that I On this ground alone, then, we are forced to these secret springs of action should be ob the conclusion that the apparent absence of scure to others must appear quite natural. motive in these London murders is not to be In this respect of want of adequate motive explained on the irresistible impulse theory, the London tragedies would be hard to bring and that the case is outside the category of within the category of so-called moral mania. " moral mania." The craft and cunning evinced in the mur Intellectual derangement might account for ders in question seem little to consist with them so far as this point is concerned. Ab Front and Rear. insanity. The rash and uncalculating act of the lunatic is not here. No doubt there are on record a few isolated cases of considerable caution being shown on the part of insane homicides; but we are not acquainted with any which approach to the present in display of prudence and circumspection. The crafti ness of the author or authors of these deeds is astounding; and the highest tribute to it is the fact that all attempts at detection have been made in vain hitherto. There is, first, cool and deliberate preparation. There is then a careful selection of time and place, — darkness and seclusion. There is the choice of a class of victims which, of all others, can most readily and as a matter of ordinary course be decoyed away alone to a secluded place of the kind, and at such an hour. The actual execution of his foul pur pose must have been swift and dexterous, and shows coolness of hand and steadiness of pur pose. Then all traces of the crime must have been removed from the assassin with great skill and foresight. The perfect circumspec tion which has characterized his subsequent movements, and has secured complete con cealment for him hitherto, has been skilful in the extreme, and must have been previously devised. Lastly, the daring shown in the repetition of the atrocities (assuming them for the moment to be the work of one hand) is only to be equalled by the caution shown in refraining from any too foolhardy attempt to repeat them where detection was imminent.


These things are all markedly in the direc tion of disproving insanity. Dr. Kay, in con trasting the sane criminal with the Insane, remarks : " The criminal lays plans for the execution of his designs; time, place, and weapons are all suited to his purpose; and when successful, he either flies from the scene of his enormities, or makes every effort to avoid discovery. The homicidal maniac, on the contrary, consults none of the usual conveniences of crime; he falls upon the ob ject of his prey, oftentimes without the most proper means for accomplishing his purpose, and perhaps in the presence of a multitude, as if expressly to court observation, and then voluntarily surrenders himself to the constituted authorities." It has been pretty generally thought that the fact that the victims were all women of loose character presents a difficulty in the case; and that this, taken along with the particulars of the mutilation, indicates the presence of an erotic element. This is open to doubt. For one thing erotic and homici dal tendency do not seem to have been found to co-exist. But the inference seems super fluous, too, in order to explain the choice of such a class as victims. The true explana tion is probably that which we have indicated above; namely, that members of this class were more easily and unsuspectingly lured away to a lonely place. — Journal of Juris prudence.

FRONT AND REAR. Irvinc Browne. A /TY mansion's front has plate glass, Through which I see the people pass In showv state; Along the glittering avenue The bright procession streams in view Early and late. |The Green Bag.|}}

In furs and silks, with, languid stare. Drawn by the plumed and jingling pair, The matrons ride; The liveried flunkies on the box, As smart and vain as turkey-cocks. Reflect their pride. The tight-breeched youth, escorting drags, Go bumping past on bang-tailed nags, And grin in pain; They look on those who walk at ease Where they and not their horses please, With high disdain. The dude limps by with monstrous stick; His legs are thin, his head is thick, His mien exotic. The frizzled girl, on wabbling heels, Stepping as if on wriggling eels, Smiles idiotic. The women saunter three abreast, Talk all at once, and push the rest, — Of gowns they talk. The red-faced bonne, with stiff white cap, With babe in carriage deep in nap, Takes up the walk. The brokers pass, with clean-shaved faces; They talk of politics and races, And what " it cost; " They brag of bets that they have laid, And tell each other what they 've made, — Not what they've lost.

My mansion's rear has windows small, Which overlook the houses tall, Backed up to view, In which these pompous people live; ' And what my casual prospects give I'll tell to you. The area walls, with moss o'ergrown. The broken stairs, the old shoes thrown At cats belated; Front and Rear. Linen of various shapes and sexes, Hung out to dry, my vision vexes,

By wind inflated. With slattern dress and unkempt hair, The matron, dawdling in her chair, O'er novel weeps. With pipe in mouth and hod on shoulder, The flunky, who in front was bolder, Up ladder creeps. A girl with hair in pins — oh, shocking! — Is darning on a thin-legged stocking: I 'm sure she 's thirty. Without a cap, the bonne from Cork Over the coals is hard at work, And very dirty. The dude, with suffering grimace, And razor scraping beardless face, Long time has stood. The youth who cantered on the course Is on another kind of horse, — He s sawing wood. The smug-faced broker, I 'm afraid, Is flirting with his nursery-maid, — He chucks her chin; He little dreams his jealous wife, Ready to take the hussy's life, Is peeping in!

And so the scene kaleidoscopic Shows forth the never-failing topic, Humanity, And gives to satirist and preacher A text for every humble creature On vanity. The proverb says all would deride Him who should " plane the underside Of a barn floor; " But in society, as in war, 'T is well to watch with constant care The postern door. l0|The Green Bag.|}}

AUSTIN HALL. THE HARVARD LAW SCHOOL. Louis D. Brandeis. THE much-debated question, whether the law school or the lawyer's office affords the better opportunity for legal training, may well be considered settled. Undoubtedly each offers advantages which the other does not possess. All lawyers concede that a short apprenticeship in the office of a prac titioner is valuable; but a thorough knowl edge of legal principles is essential to higher professional success, and this knowledge, which under all circumstances is difficult of acquisition, can rarely be attained except as the result of uninterrupted, systematic study, under competent guidance. For such train ing, the lawyer's office seldom affords an opportunity. That this is now the prevail ing opinion among lawyers is shown by the growth of law schools in the United States,

and the introduction in England of sys tematic instruction in the common law, both at the Universities and at the Inns of Court. It is but a century since the first school for instruction in the common law was founded. The Harvard Law School, the oldest of all existing institutions devoted to such education, is scarcely seventy years old. Its age, the eminence and ability of its instructors and the excellence of its methods made it a potent factor in the struggle to establish the value of school training. Now that the battle has been won, it may be interesting to consider the condition of legal education at the time the Harvard Law School was founded, and the development of the school itself. The elaborate system for acquiring a knowledge of our law, which prevailed in England at the time of the settlement of the Colonies, and which Lord Coke has so graphically described in his preface to the Third Reports, fell into disuse there soon after his time. In America nothing similar ever existed. There was little need of lawyers in the early days of American life, when the barrister was apt to be regarded as a barrator. But during the movement which culminated in the independence of the Colonies the law became more and more a subject of general interest. Already before the Revolution, Blackstone was found, it is said, side by side with the Bible in the houses of laymen. With a growing respect for the knowledge of the law, the lawyers grew rapidly in number and importance. Still, no means had been provided of training the aspirant for the bar. Here, as in England, the student learned what he could by reading and re-reading the few text-books then existing, by listening to the conversation of lawyers, and by watching the proceedings of the courts. After his admission to the bar, the young lawyer doubtless learned, as he does now, by that most expensive method of instruction,—his own mistakes.

Professor Greenleaf describes the method of study which he and Judge Story pursued as follows: "We both commenced the study of the law many years since, amidst the drudgery and interruptions of the lawyer's office, perusing with what diligence we could our Blackstone, Coke, and other books put into our hands." This sort of legal training, which may have been adequate at a time when the scope of the common law was narrow and the reported cases comparatively few, naturally proved itself inefficient when the commercial development of England and America brought with it a corresponding increase in legal principles and in litigation. The inadequacy of such training was particularly obvious in the United States, where the varying decisions rendered in the different States—grafted as they were upon the English stock—had resulted frequently in a less homogeneous development of the law. The evils of the existing means of legal education being greater in America and the conservative force of tradition less, it is natural that the reform should have been inaugurated here. Even prior to the organization of the Harvard Law School in 1817, systematic instruction in the common law had been given in America. A professorship in English law is said to have been established at William and Mary College in Virginia as early as 1782. In 1790 a law professorship was established in the College of Philadelphia, and James Wilson—one of the Associate Justices of the Supreme Court of the United States—was appointed the first professor. Judge Wilson prepared a series of lectures designed to cover three courses. The first was delivered in the winter of 1790-1791, and a part of the second course was delivered the following winter. In April, 1792, the College of Philadelphia and the University of Pennsylvania were united under the name of the latter; a law professorship was created in the new university, and Judge Wilson was appointed to fill the chair; but for some reason no lectures on law were delivered there for many years. Judge Wilson's law lectures were published in 1804—after his death. These early professorships cannot be considered as in any sense establishing law schools or separate departments of universities. Besides, like the law schools at Litchfield, Conn., and Northampton, Mass., — the early competitors of the Harvard Law School, — they were soon abandoned.

The school at Litchfield, which was the first regular school for instruction in the English law, was founded by Tapping Reeve, author of the treatise on "Domestic Relations." When, in 1798, Mr. Reeve was appointed Associate Justice of the Superior Court of Connecticut (of which bench he subsequently became Chief Justice), Hon. James Gould, author of the work on "Pleading in Civil Actions," took an active part in 12|The Green Bag.|}}

the management of the school. These gen tlemen, together with Jabez W. Huntington, who became an assistant upon Judge Reeve's retirement, were the only instructors whom the school ever had : and in 1833 it was dis continued, after a life of fifty years. During most of that time the reputation of the school was high. In 1813 it was attended by more than fifty students, and the aggregate mem bership during its whole existence exceeded

one thousand. It was what might be called a private school; for it was unincorporated, had no power to con fer degrees, and was managed by the in structors. The meth od of instruction at Litchfield in 1831 is thus described in an official publication : "According to the plan pursued by Judge Gould, the law is di vided into forty-eight Titles, which embrace all its important branches, of which he treats in systematic detail. These Titles are the result of Thirty JOSEPH years' severe and close application. . . . The lectures, which are delivered every day, and which usually occupy an hour and a half, embrace every principle and rule falling under the several divisions of the different Titles. These principles and rules are supported by numerous authorities, and generally accompanied by familiar illustra tions. Whenever the opinions upon any point are contradictory, the authorities in support of either doctrine are cited, and the arguments advanced by either side are presented in a clear and concise manner, together with the Lecturer's own views upon the question. In fact, every ancient

and modern opinion, whether overruled, doubted, or in any way qualified, is here systematically digested. These lectures, thus classified, are taken down in full by the students, and after being compared with each other, are generally transcribed in a more neat and legible hand. . . . These notes thus written out, when complete, are comprised in five large volumes," etc. Mr. Huntington held examinations, every Satur day, upon the lectures of the preceding week, consisting " of a thor ough investigation of the principles of each rule," with " frequent and familiar illustra tions, and not merely of such questions as can be answered from memory without any exercise of the judg ment." Mr. Reeve's lectures were accom panied by more of colloquial explanation. A Moot Court was held at least once in each week. The school at Northampton was founded in 1823 by STORY. Judge Samuel Howe, who had once been a pupil at the Litchfield School, and his former law-partner, Elijah H. Mills, a law yer of extensive practice, and a United States Senator from Massachusetts. In 1827 Mr. Mills's law-partner, John Hooker Ashmun, was added to the list of instructors The prominence of Judge Howe and of Sen ator Mills, and the great legal ability of Mr. Ashmun gave the school a high reputation, but this, too, appears to have been in the strictest sense a private school. Its average attendance numbered hardly more than ten; and in 1829, when Mr. Ashmun accepted a

professorship at Cambridge, the school was
The Harvard Law School.


discontinued. The method of instruction dred dollars, was supplemented by the fees adopted at Northampton seems to have re of students; and Isaac Parker, then one of sembled that at Litchfield. The professors the Justices (afterwards Chief Justice) of the read written lectures, of which the students Supreme Judicial Court of Massachusetts, were supposed to take copies, and there were was appointed under the title of Royall less formal oral lectures and recitations. Professor. This was, however, merely a The Harvard Law School had its origin college professorship, like the Vinerian pro in a gift of Isaac Royall, a prominent citi fessorship at Oxford, and the professorship zen of Massachusetts, who died abroad in of law at the College of Philadelphia. The

1 78 1. In his will, foundation of the made in England in Harvard Law 1779, whither he had School, as such, gone after the battle dates from the year of Lexington, Isaac 1 8 1 7, when Asahel Royall devised to Stearns was appoint Harvard College ed University Pro fessor of Law. The more than two statutes of the Col thousand acres of lege required him to land in Royalton open and keep a and Granby, Mass., school in Cambridge "to be appropriated toward the endow for the instruction of the graduates of the ing a professor of University and oth Law in said College, ers prosecuting the or a professor of study of the law; Physic or Anatomy, and in addition to whichever the Cor prescribing to his poration and Over seers of said College pupils a course of shall judge best for study, to examine and confer with its benefit; and they them upon the sub shall have full power jects of their studies, to sell said lands and to read to them a put the money out at interest, the income course of lectures, SIMON GRHENLEAF. and generally to act whereof shall be for the part of a tutor, the aforesaid pur pose." Had the College availed itself imme so as to improve their minds and assist diately of this devise, the school at Cambridge their acquisitions. His compensation con might perhaps have been organized before sisted of the tuition fees paid by the Tapping Reeve began his instruction at students. Chief Justice Parker took but Litchfield Hill. But it was not until 18 15 little part in the exercises of the school. that the proceeds of this devise, which His duties required him to deliver every amounted then to $7943.63 and had hitherto summer fifteen lectures to the undergradu ates and the members of the Law School; remained in the treasury of the College un these lectures, which were necessarily gen appropriated, were first devoted to the es tablishment of a professorship of law. The eral and elementary in their nature, related annual income of this fund, about four hun- chiefly to the Constitution of the United |The Green Bag.|}}

States and of Massachusetts, and the early legal history of New England. In 1827 Chief Justice Parker resigned his professor ship, and in 1829 his withdrawal from the school was followed by that of Mr. Stearns. The method of instruction adopted at Cam bridge during this period appears to have resembled that which prevailed at Litchfield and Northampton. Mr. Stearns's treatise on "Real Actions," once widely known, embod ies a course of lectures read by him to the students. Besides, there were less formal lectures, recitations, and Moot Courts. In spite of the learning of Mr. Stearns and the eminent ability of Chief Justice Parker, the Harvard Law School was not successful during the early years of its existence. The belief in school instruction was still limited to a few, and most of those were attracted to Litchfield and Northampton. The former enjoyed a national reputation, and the lat ter, being situated within a hundred miles of Cambridge, was a dangerous rival. Thus the Harvard Law School, notwithstanding the zeal of its professors and its connection with a college then already widely known, re ceived but few students. The largest num ber until 1829 was eighteen, and the average attendance was only eight. The year 1829 marks a new era in the life of the Harvard Law School. In that year Nathan Dane, a lawyer of Beverly, Mass., author of the once famous " Abridgment of American Law," and the alleged draughts man of the never-to-be-forgotten Ordinance of 1787 for the government of the Northwest Territory, following the example of Viner, gave to the school the profits of his Abridg ment. This gift secured for Harvard the services of Joseph Story, and for the world his epoch-making treatises on the law. In laying the foundation for the professorship which bears his name, Mr. Dane prescribed that " it shall be the duty of the professor to prepare and deliver and to revise for pub lication a course of lectures on the five follow ing branches of Law and Equity equally in force in all parts of our Federal Republic, —

namely, The Law of Nature, The Law of Na tions, Commercial and Maritime Law, Fed eral Law and Federal Equity, — in such wide extent as the same branches now are and from time to time shall be administered in the courts of the United States, but in such compressed form as the professor shall deem proper; and so to prepare, deliver, and revise lectures thereon as often as said Corpora tion shall think proper;" and "as the Hon. Joseph Story is by study and practice emi nently qualified to teach the said branches both in Law and Equity, it is my request that he may be appointed the first pro fessor on this foundation if he will ac cept the same; and in case he shall accept the same it is to be understood that the course of his lectures will be made to con form to his duties as one of the Justices of the Supreme Court of the United States; and further, that time shall be allowed him to complete, in manner aforesaid, a course of lectures on the said five branches, prob ably making four or more octavo volumes, and that all the lectures and teachings of him and every professor so to be appointed shall be calculated to assist and serve in a special manner law students and lawyers in practice, sound and useful law being the ob ject." The amount given was ten thousand dollars; and the fund was increased by a bequest of five thousand dollars upon Mr. Dane's death, a few years later. Joseph Story became Dane Professor, John Hooker Ashmun was appointed Royall Pro fessor, and the school entered upon a period of great prosperity. At the time Story as sumed the duties of instructor at Cam bridge, he was fifty years old. He had been for- eighteen years Associate Justice of the Supreme Court, a position which he held until his death. This was a period during which the attention of the public was perhaps more generally fixed upon that tribunal than at any other in our history. The learning and the lucid exposition displayed in Story's ju dicial opinions had won the admiration of the

bar throughout the land, and the opportunity
The Harvard Law School.


of hearing his lectures was eagerly seized. Story published all his treatises on the law, Almost immediately upon his appointment filling no less than thirteen volumes. as professor, the school changed its character Although it was the fame and ability of from a local to a national school of law. It Story which then gave to the Harvard Law became broader in its aims; it improved in School its impulse and which established its the quality of its instruction, and the attend national character, yet others contributed in ance grew larger. When, sixteen years later, no small measure to the high reputation death severed Story's connection with the which it won at this time. John Hooker University, the Law School numbered one Ashmun was a man of extraordinary legal hundred and sixty-five students, representing acumen; and upon his early death, in 1833,

nearly every State in Simon Greenleaf, then the Union. During reporter of decisions the same period the for the Supreme law library increased Court of Maine, was so rapidly that, after appointed Royall Pro a few years, it sur fessor of Law. Greenpassed any in Amerileaf had already dis ica. Between 1829 tinguished himself at and 1845 nearly the bar by his critical thirty thousand dol discrimination of legal lars were expended principles, and for fif by the Law School teen years he brought in the purchase of these mental faculties books, and it received to bear with great ef in addition Samuel fect upon his work as Livermore's collec a teacher of law. In tion of works on the the performance of his Civil Law, which is duties as professor he said to have been the prepared the work on most valuable collec "Evidence," which was published in 1842 tion of its kind in this country. In 183 1 and soon won for him Mr. Dane offered to a reputation in every JOEL PARKER. advance funds to en country where the able the College to common law is ad supply a separate building for the Law De ministered. His learned edition of " Cruise partment. Dane Hall was erected in 1832; on Real Property " appeared after he became but the growth of the school soon necessi Emeritus professor. tated extensive additions, which were com The method of instruction prevailing at pleted in 1845. The prosperity of the school the Law School during this period was in was so great that in spite of the purchases many respects similar to that which had been for the library and the enlargement of Dane practised during the earlier years of its exist Hall, there had accumulated at the time of ence. Professor Ashmun's instruction was Judge Story's death a surplus of over fifteen mainly by recitations adding informal expla thousand dollars. How well he had per nations where it was deemed necessary. formed the duty imposed by Mr. Dane to Judge Story taught mainly by lectures, and revise his lectures for publication may be resorted rarely to questioning students. Pro seen from the fact that during this period fessor Greenleaf adopted the same method. 16|The Green Bag.|}}

with such difference only as the different qualities of his mind would naturally produce. The multiplication of text-books on the lesser branches of the law — many of them pre pared by the professors themselves — had done away with the careful copying of the instructor's lectures which at Litchfield and Northampton had occupied much of the stu dents' time. A list of books for a course of study was prepared, and the students had an opportunity of airing their learning occasion ally at the Moot Courts which were held by the professors. Within a few years after Judge Story's death the school numbered among its instruc tors Hon. William Kent of New York, George Ticknor Curtis, Franklin Dexter, Luther S. Cushing, the author of the famous Manual, and Edward G. Loring. Henry Wheaton accepted the position of Lecturer on In ternational Law, but died before entering upon the performance of his duties. Later, Richard Henry Dana delivered courses of lectures. But Kent, Curtis, Dexter, Cushing, Loring, and Dana were lecturers for short periods only; and during the twenty years following the death of Greenleaf, the fame of the school rested upon the" ability and zeal of Judge Parker, Theophilus Parsons, and Emory Washburn. At the time of his appointment as Royall Professor of Law, Joel Parker, though but fifty-two years of age, had been for nearly fifteen years a member of the Superior Court of New Hampshire and for nearly ten years its Chief Justice. He will doubtless long be considered the Chief Justice of that State, for he was one of the ablest of American judges. Stored with the practical experience of a long professional and judicial life, patient, assiduous, and accurate, keen in argument and clear in exposition, he devoted for twenty years all his powers to the performance of his duties at the school. Theophilus Parsons became Dane Profes sor of Law in 1848, and held that position until the year 1870. He was a son of the eminent judge whose name he bore, — the

Chief Justice of Massachusetts, — and in herited from his father a deep love for the law, and a power of impressive statement rarely equalled. At the date of Parsons's ap pointment as professor, he was fifty-three years of age, and had acquired considerable reputation, both as a practitioner in admi ralty and as a literary man. His fame, how ever, rests upon his work at Cambridge. The ability of fixing and holding the atten tion of students, which he possessed in an unusual degree, gave him a high reputation as a lecturer, and the treatises prepared by him in his professorial work soon spread his name far and wide. His " Law of Con tracts," which appeared in 1853, is said to have had a larger sale, during the lifetime of the author, than any legal text-book ever published in any country. Like Story's and Kent's Commentaries, it was often quoted in England, and for more than twenty years it was the leading book of reference on the subject in America. A Kentucky law-stu dent, finding it constantly relied upon by the courts of his State, inquired whether there was any statute making it an authority. At comparatively short intervals between 1856 and 1869, Professor Parsons also pub lished works on " Mercantile Law," " Mari time Law," "Bills and Notes," "Partnership," "Marine Insurance," and " Shipping and Admiralty." His reputation as a legal textwriter became so extended that his publishers sold over one hundred and fifty thousand copies of his " Law of Business Men," — a treatise on commercial law for laymen. It is believed to have netted the author, in roy alties, fully $40,000. In 1855 Emory Washburn, a lawyer of rare integrity and industry, who had attained prominence not only in his profession, but also as judge, legislator, and Governor of Massachusetts, was appointed lecturer at the Harvard Law School, and in the following year became University Professor of Law, — a position which he filled for twenty years. The name of the professorship was changed,

in 1862, to Bussey Professor, a considerable
The Harvard Law School.


fund then becoming available to the Law previously prescribed text-reading, with more School from a bequest of Benjamin Bussey, or less examination thereon. On Jan. 6, 1870, Christopher Columbus Esq. Like his colleague, Professor Parsons, Washburn soon became favorably known Langdell became Dane Professor of Law, both as a lecturer and as a legal writer. — an event which, like Story's appointment Probably no instructor at the Law School to the chair forty years before, marks an epoch in the history of the school and of was ever more generally loved by his stu dents. While at the bar every client's cause legal education. In external conditions two men could hardly have differed more widely

had been his own; and as a professor he iden than Story and Lang tified himself in the dell at the time each same manner with his entered upon his du pupils, — their hopes ties as an instructor and successes were of law. Story had a his; their fears he national reputation; sought to dispel by warm words of en at the early age of thirty-two he had couragement. His been appointed one works on the "Amer of the judges of the ican Law of Real highest court in the Property " and on land; he had been the " American Law tendered the Chief of Easements," re newing their youth Justiceship of Massa with each new edition chusetts; his official position, his family by the aid of able annotators, are still the connections, and his leading books of ref social qualities had erence on those sub secured for him the jects in America. acquaintance of the During the twentymost prominent men five years following of this country; he the death of Judge was the pride of New Story, the attendance England; the Uni THEOPHILUS PARSONS. at the school fluc versity was honored tuated considerably, when he accepted the owing partly to the war, partly to the compe professorship at the Law School. Langdell, tition of law schools which were organized on the other hand, was almost unknown; he elsewhere in large numbers, and partly, per had held no public office; at the bar of haps, to other causes. The highest number New York, of which for more than fifteen of students (one hundred and seventy-six) was years he had been a member, not many reached in January, i860; the lowest (sixty- 1 could be found who had even heard of him; nine), in July, 1862. In the year 1869-1870 he had rarely been seen in the courts; in the attendance at the school was one hun Boston there were few to whom his name dred and fifteen. The method of instruction j was known. But some of the leaders of the during this period remained substantially the New York Bar had discovered his ability, same as that which was practised under and there were some other lawyers of promi Judge Story and Professor Greenleaf; namely, nence both there and in Boston who remem oral lectures illustrating and explaining a bered that, nearly twenty years before, there 3 18|The Green Bag.|}}

had been at the Harvard Law School a young I school at least two full years as candi student from New Boston, N. H., of indomi dates for a degree and have passed exam table will, of untiring industry, and of a inations in the studies for the three years. strong legal mind, who assisted Professor The course of study itself has been greatly Parsons in his work on the " Law of Con changed and enlarged. The amount of in tracts," and acted for some time as libra struction given in the school previously to rian of the school. They remembered that 1870 appears not to have exceeded ten exer their fellow-student had occupied himself cises a week. Although the course actually much with the proper methods of study; covered two years, half of the course only they had regarded him then as something was given at the school each year, so that it like a genius in the law; and when they heard was purely a matter of chance whether the that Mr. Langdell had been chosen Dane student began his studies with one or the Professor, they did not share the anxious other set of subjects. This arrangement concern which other friends of the school doubtless proceeded upon the theory that expressed at the appointment of a man com "there is neither beginning nor end to the law, neither fundamental principle nor nat paratively unknown. As soon as Professor Langdell assumed ural development." But with such a theory his new duties, changes were suggested in the new Faculty most thoroughly disagreed. the requisites for admission and for gradua They believed that the law was a science, tion, and in the methods, order, and qual and should be studied as such. And so ity of instruction, which being eventually throughout the three years' course of study approved by the Faculty completely revolu the subjects are arranged with reference tionized the school. Prior to 1875, no ex to their fundamental character. The total amination or particular course of previous number of exercises each week is now thirtystudy was prescribed as necessary to entitle five. The following is the course of instrucone to admission to the school. As a result ( tion for the year 1888- 1889 : — the classes contained many students whose training had not been sufficient to enable 1 First Year. them to profit by the instruction given. In Contracts. Professor Keener. Three hours a that year requisites for admission were first week. Langdell's Cases on Contracts. prescribed, and since then no person other Property. Professor Cray. Two hours a week. than a graduate of a college has been ad Cray's Cases on Property. mitted without passing a written examination Torts. Mr. Schofield. Two hours a week. in Latin or French and in Blackstone's Com Ames's Cases on Torts. mentaries. Persons not candidates for a Civil Procedure at Common Law. Professor Ames. One hour a week. Ames's Cases on Pleading. degree, called special students, are still per Criminal Law and Procedure.1 Mr. Chaplin. mitted to attend the school without examina One hour a week. tion. Likewise, prior to 1875, any person who had for three terms or eighteen months Second Year. been enrolled as a member of the school was entitled to a degree without having necessa Bills of Exchange and Promissory Notes. Profes rily attended a lecture or passed an exam sor Ames. Two hours a week. Ames's Cases ination. Under the new administration the on Bills and Notes. regular period of residence for the degree of Contracts. Professor Keener. Two hours a week. Keener's Cases on Quasi-Contracts. Bachelor of Laws was first lengthened to two years, and subsequently a third year course Evidence.1 Professor Thayer. Two hours a week. was added. Now this degree is conferred only upon students who have been in the

1 No text-book.
The Harvard Law School.


Jurisdiction and Procedure in Equity Professor admission and for graduation and in the Langdell. Two hours a week. Langdell's quantity and order of the instruction, it is Cases in Equity Pleading. believed that Professor Langdell's chief con Property.1 Professor Gray. Two hours a week tribution to the cause of thorough legal edu Sales of Personal Property. Professor Thayer. cation was the introduction of an entirely new Two hours a week. Langdell's Cases on system of teaching law, — a system which Sales. was at first looked upon with great distrust Trusts. Professor Ames. Two hours a week. by his colleagues as well as by the bar, but Ames's Cases on Trusts. which, making converts from year to year, Third Year. has eventually established itself firmly at the Agency.1 Professor Keener. Two hours a week. school. Believing that law is a science, and Jurisdiction and Procedure in Equity. Professor recognizing that the source of our law is the Langdell. Two hours a week. Langdell's adjudicated cases, Professor Langdell de Cases on Equity Jurisdiction. clared that, like other sciences, the law was Partnership and Corporations. Professor Ames. to be learned only by going to the original Two hours a week. Ames's Cases on Part sources. It was there that the authors of nership. Suretyship and Mortgage.1 Professor Langdell. text-books had gained their knowledge of the law, and there only can others acquire it. Two hours a week. Constitutional Law.1 Professor Thayer. Two No instructor can provide the royal road to knowledge by giving to the student the con hours a week. Jurisdiction and Practice of United States Courts.1 I clusions deduced from these sources; his Professor Gray. One hour a week. chief aim should be to teach the student to [Law of Persons.1 Professor Gray. One hour a think in a legal manner in accordance with week.] the principles of the particular branch of the Omitted in 1888- 1889. law. He should seek to inculcate and de Wills and Administration.1 Professor Gray. One velop in legal reasoning the habit of intellec hour a week. tual self-reliance. The sphere of usefulness [Conflict of Laws.1 Professor Keener. One hour of the teacher of law according to this con a weekfor half the year. ception of his duty is not a narrow one. Omitted in 1888- 1889. [Points in Legal History.1 Professor Ames One Having gone over the ground which the student is to traverse, the teacher can, in the hour a weekfor half the year..] first place, aid the student by removing from Omitted in 1888- 1889. his consideration the great mass of cases on In addition to the foregoing third-year subjects, the particular subject which bore no part in third-year students may elect any second-year the development of the principle under dis subjects which they have not taken in their second cussion. Eliminating those, he selects the year. Every student who has been in the school cases especially worthy of study; and for the one year or more has an opportunity each year of arguing in a moot court case before one of the convenience of the student the select (not professors. leading) cases on the different subjects are Every candidate for the honor degree will be published as a collection. The principle upon required to take ten hours a week in each of the which such a collection is made was thus last two years. F'.very candidate for the ordinary stated by Professor Langdell in the preface degree will be required to take in the second year to his " Select Cases on Contracts," which ten hours a week in the subjects of that year, and appeared in October, 1871, — the first book in the third year eight hours a week. of the kind ever published : — Great as have been the advantages derived "Law, considered as a science, consists of cer from these changes in the requirements for tain principles or doctrines. To have such a mas tery of these as to be able to apply them with 1 No text-book. 20|The Green Bag.|}}

constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of the law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to all that have been reported. The vast majority are useless and worse than use less for any purpose of systematic study. More over, the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is con stantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number." These books of cases are the tools with which the student supplies himself as he enters upon his work. Take, for instance, the subject of " Mutual Assent " in con tracts. A score of cases covering a century, contained in about one hundred and fifty pages and selected from the English reports, the decisions of the Supreme Court of the United States, and the highest courts of New York, Pennsylvania, and Massachusetts, arranged in chronological order, show the development of its leading principles. Before coming to the lecture-room, the student, by way of preparation, has studied — he does not merely read — say from two to six cases. In the selection of cases used as a text-book, the head notes appearing in the regular re ports are omitted, and the student, besides mastering the facts, has endeavored for him self to deduce from the decision the principle involved. In the class-room some student is called upon by the professor to state the case, and then follows an examination of the opin

ion of the court, an analysis of the arguments of counsel, a criticism of the reasoning on which the decision is based, a careful dis crimination between what was decided and what is a dictum merely. To use the expres sion of one of the professors, the case is "eviscerated." Other students are either called upon for their opinions or volunteer them, — the professor throughout acting largely as moderator. When the second case is taken up, material for comparison is fur nished; and with each additional authority that is examined, the opportunity for com parison and for generalization grows. When the end of the chapter of cases is reached, the student stands possessed of the principles in their full development. Having attended as it were at their birth, having traced their history from stage to stage, the student has grown with them and in them; the principles have become a part of his flesh and blood; they have pro hac vice created a habit of mind. Like swimming or skating, once acquired, they cannot be forgotten; for they are a part of himself. One objection to this method of study, naturally presents itself : " How can anybody give the time to study the law in this elabo rate manner? Either one must cover only a small field, or a lifetime must be given to the mere preparation for the profession." This objection was anticipated and an answer to it was given by Professor Langdell in the pas sage quoted from the preface to his " Select Cases on Contracts." Undoubtedly the prin ciples of the law are numerous; one might almost say innumerable. It has been said that there are nearly three millions of distinct principles. This may be true; yet the fun damental principles are comparatively few. These only need be acquired; once acquired, they will be found springing up everywhere. They are immediately recognized and located; they are the guide-posts that point the lawyer unerringly to his destination, however numer ous the cross-roads or alluring the by-ways. Besides, the progress through the cases,

though at first slow, grows more and more
The Harvard Law School.


the ardor of the students themselves. Pro rapid as the student progresses in the partic ular subject and becomes accustomed to this fessor Ames, writing of the school ten years system of study. Furthermore, the particular ago, said : " Indeed, one speaks far within principles of law thus gained represent but a bounds in saying that the spirit of work and enthusiasm which now prevails at the school small part of the total acquisition while study ing the cases on one narrow subject. The is without parallel in the history of any de partment of the University." What was true courts, the judges, the pleadings, the prac tice, the arguments of counsel, have become then is at least equally true now. The stu real things. Again, though a case is selected dents live in an atmosphere of legal thought.

Their interest is at because it illus fever heat, and the trates one stage in impressions made the development of by their studies are a legal doctrine, as deep and lasting a dozen points not as is compatible directly connected with the quality with that doctrine of the individual may be involved or mind. suggested, and The testimony of these the student either solves for the value of this system of instruc himself or seeks tion which is fur to have explained. nished by the zeal The points thus in of the students is cidentally learned are impressed upon supplemented by the mind as they the actions of the never could be by professors. Each instructor at the mere reading or by lectures; for in school is entirely stead of being pre at liberty to choose sented as desic the method of in cated facts, they struction which most commends occur as an inte EMORY WASHBURN itself to his judg gral part of the drama of life, — of ment. Several of an actual lawsuit. Besides, the study of the professors declined for many years to the cases does not exclude the study of the adopt the system introduced by Professor treatises. The animated discussions in the Langdell. Slowly it won its way. Actual class-room induce the student to resort to experience overcame all doubts. Now that every means of fortifying himself, either for general method — varied of course in the his own instruction or in order to overthrow manner and extent of application, according his adversary in discussion, be it professor to the views of the different instructors — is or fellow-student. This leads the pupil to almost universally adopted at the school. See independent investigation; and the trea what Mr. Justice Oliver Wendell Holmes, Jr., tises which are always accessible are rarely of the Supreme Judicial Court of Massachu neglected. setts, says of it : — There could be no stronger proof of the "But I am certain from my own experience that excellence of this system of instruction than Mr. Langdell is right; I am certain, when your 22|The Green Bag.|}}

object is not to make a bouquet of the law for the is eighteen years since it was introduced. public, nor to prune and graft it by legislation, but Those who have had an opportunity of put to plant its roots where they will grow, in minds ting the legal education thus acquired to a devoted henceforth to that one end, there is no way practical test are perhaps best qualified to to be compared to Mr. Langdell's way. Why, speak of its merits, and almost without ex look at it simply in the light of human nature. ception they pronounce in its favor. Mr. Does not a man remember a concrete instance James C. Carter, probably the leader of the more vividly than a general principle? And is not a principle more exactly and intimately grasped as New York Bar, has expressed in the strong the unexpressed major premise of the half-dozen est terms his belief in the new method of examples which mark its extent and its limits than instruction : — it can be in any abstract form of words? Ex "Now, is this method open to the objection pressed or unexpressed, is it not better known that the study of cases is apt to make the student a when you have studied its embryology and the mere ' case ' lawyer? Not at all. The purpose is lines of its growth than when you merely see it to study the great and principal cases in which are lying dead before you on the printed pages? the real sources of the law, and to extract from I have referred to my own experience. During them the rule which, when discovered, is found to the short time that I had the honor of teaching in ' be superior to all cases. And this is the method the school, it fell to me, among other things, to which, as I understand it, is now pursued in this instruct the first-year men in Torts. With some school. And so far as the practical question is misgivings I plunged a class of beginners straight concerned, whether it actually fits those who go into Mr. Ames's collection of cases, and we began out from its walls in the best manner for the actual to discuss them together in Mr. Langdell's method. practice of the law, I may claim to be a competent The result was better than I even hoped it would witness. It has been my fortune for many years be. After a week or two, after the first confusing to have charge of a considerably diversified legal novelty was over, I found that my class examined practice; and the most that I have had to regret the questions proposed with an accuracy of view is that it has overwhelmed me so much with mere which they never could have learned from text business that I have had too little time for the close books, and which often exceeded that to be found study of the law which my cases have involved. in text-books. I at least, if no one else, gained a "It has been necessary for me to have intelligent good deal from our daily encounters." assistants, and I have long since discovered that most valuable aid could be derived from the young We Americans, who have given to modern graduates of this school. I have surrounded my England systematic instruction in the law, self with them, partly for the reason that I have an who enriched its law half a century ago with affection for the place, and also because I have the ideas of Kent, Story, and Greenleaf, may found them in possession of a great amount of feel some pride in the fact that the English actual acquirement, and — what is of more conse now recognize the value also of Professor quence — an accuracy and precision of method far Langdell's contribution to legal pedagogic. superior to anything which the students of my day exhibited." In 1886 Gerard Brown Finch, Esq., Law Lec turer at Queen's College, Cambridge, after That Mr. Carter's experience is shared thoroughly examining the system of instruc quite generally, appears from the following tion prevailing at Harvard, introduced at j statement by President Eliot, contained in Queen's College Professor Langdell's meth his report for the year 1885-1886 to the ods, and for that purpose published a selec Overseers of Harvard College : — tion of cases on the Law of Contracts. But the time has passed when we need "It is good evidence of the value of the full look to the enthusiasm of students or to the three years' course that for several summers past opinions of professors for evidence of the the school has been unable to fill all the places in

value of the new method of instruction. It lawyers' offices which have been offered it for its
The Harvard Law School.


third-year students just graduating. There have progressed steadily during the past eighteen been more places offered, with salaries sufficient to years. The number of students has risen live on, than there were graduates to take them." from one hundred and fifteen in the year The intellectual self-reliance and the spirit 1 869-1 870 to two hundred and twenty-five of investigation which this new method of in in the year 1887-1888. The national — in deed the international — character of the struction engenders, have produced the "Har vard Law Review " and greatly developed the school has been fully maintained. Since the Club Courts. The " Harvard Law Review" is establishment of the three years' course ten a monthly journal of law, of the same general years ago, thirty-five States, two Territo ries, and the District

plan as the "American of Columbia, England Law Review," and is and four of her prov managed wholly by inces, Japan and the the students. It con Hawaiian Islands tains articles also by have been represent the professors and ed at the school. others, and is a mag azine of high order. The library now con The Club Courts, tains twenty-three which are practically thousand volumes, Moot Courts, con and is believed to be in some respects the ducted entirely by best equipped lawstudents, have far outstripped in useful library in America. ness the Moot Courts About $3,000 is spent held by the profes upon it annually. In 1 88 1 Mr. Edward sors. These clubs Austin gave the have generally two school over $ 140,000 sets of members, — for the erection of a the junior court con new building, — Aus sisting of eight mem tin Hall, — which it bers selected from the now occupies. In first-year class, and 1882 the school re the senior court con C. C. LANGDELL. sisting of nine mem ceived a gift of $90,bers selected from the 000 to endow a pro second-year class. The junior and the senior fessorship, and in the same year large gifts courts meet at regular intervals, and at each were made toward a library fund. sitting a case is argued by two of the mem The enthusiasm of the graduates of the bers as counsel, — the rest sitting as judges. school found expression, in 1886, on the In the junior court a member of the senior occasion of the celebration of the 250th an court sits as Chief Justice. The cases are niversary of the founding of Harvard College. regularly presented upon the pleadings; The Harvard Law School Association was briefs are prepared, arguments made, and organized, on Sept. 23, 1886, "to advance opinions — sometimes in writing — delivered the cause of legal education, to promote the by each of the judges. The cases are pre interests and increase the usefulness of the pared with quite as much thoroughness as Harvard Law School, and to promote mutual any work that is done at the school. acquaintance and good fellowship among the In material prosperity the school has also members of the Association." All former 24|The Green Bag.|}}

members of the School are eligible for mem bership in the Association. Its general meet ing was held at Cambridge on Nov. 5, 1886. The membership of the Association now num bers eight hundred and eighteen. For the current year it has made a gift of $1,000, to increase the instruction in Constitutional Law, and another of $100, for a prize essay to be competed for by members of the thirdyear class. Similar grants for these purposes are to be made by the Association yearly. In describing the progress of the school since 1870, we have referred only to the work of Professor Langdell. Those who have had any knowledge of the school during this period need not be told to how great an extent its prosperity should be ascribed to the co-operation of others who from time to time have been members of the Faculty. Of none of the instructors is this more true than of the present professors, who have devoted themselves to the cause of legal education with never-flagging zeal. The tact and good judgment which they have displayed in deal ing with the difficult problems of administra tion, and the ability — nearly approaching genius — with which they have put the new method of instruction into practice, have alone made it possible to carry through the changes at the school, and to obtain the moral and financial support from without which have brought the school to the high degree of prosperity which it now enjoys. After Judge Parker's resignation, Nathan iel Holmes, formerly one of the justices of the Supreme Court of Missouri, was ap pointed Royall Professor; and later, Charles S. Bradley, formerly Chief Justice of Rhode Island and a lawyer of great ability, became Bussey Professor. During this period Ed mund H. Bennett, N. St. John Green, John Lathrop, Benjamin F. Thomas, and New England's greatest lawyer, Benjamin R. Cur tis, were lecturers at the school. O. W. Holmes, Jr., held a professorship for a short time before his appointment to the Supreme Bench of Massachusetts in 1883. The "Catalogue of the Students of the

Law School of Harvard University, 18171887," which was prepared by John H. Ar nold, Esq., its efficient librarian, under the inspiration of the Harvard Law School Asso ciation, contains five thousand two hundred and sixty-three names. A glance at its pages will show to how great an extent men prominent in public and professional life have received their early training at this school. Among those now holding offices under the Federal Government may be mentioned the Chief Justice and Mr. Justice Gray of the United States Supreme Court; the Secretaries of War, of the Treasury, and of the Navy; Senators Evarts, Hoar, Eustis, Chandler, and Gray, who will soon be joined by Senators-elect Walcott and Higgins; the Chief Justice and Mr. Justice Davis of the Court of Claims; Walter L. Bragg of the Interstate Commerce Commission; Judge Cox of the Supreme Court of the District of Columbia; the United States District Judges, Ogden Hoffman of Califor nia, Addison Brown of New York, Henry B. Brown of Michigan, Edward C. Billings of Louisiana; and, of the territorial courts, Judges Twiss of Utah, and Knowles and Blake of Montana. On the highest State Courts the school is represented in Maine, New Hampshire, Mas sachusetts, South Carolina, West Virginia, and Iowa, by the Chief Justices, and in New York, Rhode Island, Delaware, and Ohio, by associate justices. Five of the seven judges of the Supreme Judicial Court of Massachu setts were students at the school. To the Dominion of Canada the school has furnished the present Minister of Finance, Charles H. Tupper, as well as judges, and many members of Parliament; and to the Hawaiian Islands, the Chief Justice and Judge M'Cully of the Supreme Court. We should expect to find the names of leaders of the Boston Bar now, as in the days of Rufus Choate, among the former students of the Harvard Law School; and in other cities the school is no less ably represented

than there. Take, for example, New York,
The Harvard Law School.

with James C. Carter, William M. Evarts, Jo seph H. Choate, William G. Choate, George Hoadly, George Frederick Betts, George De Forest Lord, C. C. Beaman, D. H. Cham berlain, and George Bliss; at Providence, Benjamin F. Thurston, and formerly Charles S. Bradley; at Detroit, George V. N. Lothrop, the late Minister to Russia; at Savannah, Alexander R. Lawton; at St. John (N. B.), Ezekiel McLeod. The educational influence of the Cam bridge School has not been confined to the instruction given within its walls. Former students have as professors of law elsewhere spread wide its teachings. Thus, Francis Wayland, the Dean of the Yale Law School, and Prof. Simeon E. Baldwin, and Edmund H. Bennett, Dean of the Boston University Law School, studied at Cambridge. Widely, too, has the Harvard Law School made its influence felt by the legal writings not of its professors merely, but also of others who were once its students. The last decade alone has given us, among others, Judge Holmes's work on the " Common Law,"


Langdell's " Summary of the Law of Con tracts," Gray's works on " Perpetuities " and "Restraints on Alienation," Jones's trea tises on " Mortgages and Liens," Benjamin Vaughan Abbot's various writings, Pierce on " Railroad Law," Gould on " Waters," Thompson &Merriam on "Juries," Morawetz on " Private Corporations," Merwin's " Pat entability of Inventions," Stimson's " Ameri can Statute Law," besides the valuable writings of such authors as Preble, Austin, Grinnell, Aldrich, Wald, and Chamberlayne. Among the many former students at the Harvard Law School who became prominent in spheres other than the law, may be named Caleb Cushing, Charles Sumner, Wendell Phillips, Rutherford B. Hayes, and Robert T. Lincoln; Elihu B. Washburn, Richard H. Dana, and Anson Burlingame; Motley, Prescott, and Parkman; James R. Lowell, William W. Story, and Dr. Oliver Wendell Holmes. The Harvard Law School has done a great work in the past. May we not venture to hope that the work of the future will be im measurably greater?

DANE HALL. 26|The Green Bag.|}}

SPECIFIC PERFORMANCE OF CONTRACTS. Prof. J. B. Ames. ENGLISH and American lawyers are so familiar with the jurisdiction of equity in enforcing the specific performance of con tracts, that it probably occurs to very few of them that there is anything extraordinary in this remedy of the courts of chancery. The doctrine of specific performance is, however, one of the paradoxes of legal history. Only in the United States and the British Empire, the two countries in which popular govern ment has attained its highest development, is it permitted so far to invade the liberty of the individual as to compel him specifically to perform his contracts upon pain of im prisonment. " Nemo potest pracise cogi ad factum," was a rule of the Roman law. In France, Germany, and presumably in the other European States, pecuniary compen sation is the sole remedy for a breach of contract.1 Even in England the practice of the chan cellors met with strenuous opposition from the common-law judges, and was finally es tablished only at a comparatively late pe riod. Mr. Spence, it is true, has expressed the opinion, to which Lord Justice Fry has added the weight of his authority,2 that "bills for specific performance of contracts for the sale of land are amongst the earliest that are recorded in the court of chancery." 3 But this opinion would seem to be erroneous. In its support these eminent writers cite a case of the time of Richard II.4 (1377- 1399). The bill alleged that the plaintiff, trusting in the defendant's promise to convey certain land to him, had paid out money in travel ling to London and consulting counsel, and 1 Fry, Specific Performance (2d ed.), 3. 2 Ibid., 8. 3 1 Spence, Eq. Jur. 645.

  • 2 Cal. Ch. II. Two similar cases are reported : 1

Cal. Ch. XLI. and Y. B. 8 Edw. IV. 4, pi. 11. The other authorities cited by Mr. Spence are cases of uses.

prayed for a subpoena to compel the defend ant to answer of his " disceit." There is no allusion to specific performance; the bill sounds in tort rather than in contract; and its object was, in all probability, not specific performance but reimbursement for the ex penses incurred. Indeed, this probability becomes almost a certainty when it is re membered that equity at this time gave no relief even against feoffees to uses who re fused to convey to their cestuis que usent, and that the common law gave no action for dam ages for the breach of a parol promise. It is probable that the willingness of equity to give pecuniary relief upon parol promises hastened the development of the action of assumpsit. Fairfax, J., in 1481, advised pleaders to pay more attention to actions on the case, and thereby diminish the resort to chancery;1 and Fineux, C. J., remarked, in 1505, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to sue a subpoena in such cases.2 Brooke, in his " Abridgment," adds to this remark of Fineux, C. J. : " But note that he shall have only damages by this [action on the case], but by subpoena the chancellor may compel him to execute the estate or imprison him ut dicitur." 3 Brooke died in 1558. This note by him and the following meagre report of a case in 1547,4 — " It is ordered that the defendant and his wife shall make an absolute assurance for the extin guishment of her right in the lands," if, in deed, this can be said to be in point, — seem to be the earliest allusions to the equitable doctrine of specific performance. Against these should be set the statement of Dyer, J., 1 2 8 4

Y. B. 21 Edw. IV. 23, pi. 6. Y. B. 21 Hen. VII. 41, pi. 66. Bro. Ah. Act. on Case, pi. 72. Carington v. Humphrey, Toth. 14. Specific Performance of Contracts.


in 1557: 1 " And no subpoena will lie for her common law, the same being the most indif [the covenantee], as for a cestui que use, to ferent trial, by a jury of twelve men." As compel Sir A. [the covenantor] to execute might be supposed, the most determined op the estate . . . because she has her remedy ponent of this new encroachment of equity at common law, by action of covenant." ' upon the common law was Lord Coke. In In the reign of Elizabeth, however, there Bromage v. Genning,1 the plaintiff applied are several reported cases in which specific to the King's Bench for a prohibition against performance of contracts was decreed.2 a suit for specific performance of a lease There were many similar decrees in the brought against him in the Marches of reign of James I., one of which, according to Wales, on the ground that Genning's proper Tothill, was " by the judge's advice." 3 This remedy was an action at law. Sergeant is, possibly, an error of the reporter. At all Harris, in reply, urged that the object of the events, the hostility of the common-law judges suit was not the recovery of damages but to the jurisdiction of equity over contracts the execution of the lease, and that this was was very plainly expressed, two years later, in regularly done in chancery. Coke, C. J., Gollen v. Bacon,4 by Fleming, C. J.: "If one Doddridge and Houghton, JJ. : " Without doth promise for to give me a horse for 20 doubt a court of equity ought not to do so, shillings, afterwards he doth not perform for then to what purpose is the action on the this; I am not in this case to go and sue in case and covenant; and Coke said that this chancery for my remedy, but at the common would subvert the intent of the covenantor, law, by an action on the case for a breach of since he intended to-have his election to pay promise, and so to recover damages; and this damages or to make the lease, and they is the proper remedy, and the common law would compel him to make the lease against warrants only a remedy at the common law; his will; and so it is if a man binds himself and if the law be so in the case of a horse, in an obligation to enfeoff another, he cannot a multo fortiori it shall be so in case of a be compelled to make the feoffment." Sergeant Harris then confessed that he promise to make an assurance of his land acted in the matter against his conscience, upon good consideration, and doth not per form it, he is not to sue in chancery for and the court accordingly granted the pro this, but at the common law, which is most hibition. This was in 1616, the year of the proper." Croke, J., and Yelverton, J., agreed memorable contest between Lord Coke and herein with the chief justice, who added : Lord Ellesmere as to the power of equity to "There are too many causes drawn into restrain the execution of a common-law judg chancery to be relieved there, which are ment obtained by fraud. Lord Coke was more fit to be determined by trial at the alike unsuccessful in this contest, and in his attempt to check the jurisdiction of equity 1 Wingfield v. Littleton, I)y. 162a 2 Pope v. Mason (1569), Toth. 3; Hungerford v. Hut- in matters of contract. The right of equity ton (1569), Toth. 62; Foster v. Eltonhead ( 1582), Toth. 4; to enforce specific performance, where dam Kemper. Palmer (1594), Toth. 14; King r Reynolds ages at law would be an inadequate remedy, (1597), Ch. Cas. Ch. 42; Beeston v. Langford '1598), has never since been questioned. Toth. 14. a Throckmorton v. Throckmorton (1609), Toth. 4. 11 Roll. R. 368. 4 1 Bulst. 112.

Green Bag Vol. 1 p. 27 tailpiece.jpg
28|The Green Bag.|}}

CAUSES CELEBRES. I. PAPAVOINE. [1824.] HERE is one of the strangest dramas to be found in the criminal annals of France, and yet everything in it is perfectly clear and simple except upon a single point. This doubtful point is, it is true, the vital one, — that upon which rests that supreme question : Is the accused guilty? The crime is flagrant, horrible; the victims are two lit tle innocent creatures; the witnesses are nu merous; there is no dispute as to the facts; the accused himself confesses. And yet the human conscience has none the less contin ued to raise the question which the evidence and the facts fail to answer satisfactorily : Was the accused guilty? The accused, the confessed author of the deed, expiated his crime upon the scaffold; and yet, after all the years which have passed since that bloody expiation, the human conscience still repeats with an increasing doubt, or rather with a mournful certainty that an error was com mitted, Was the condemned man guilty? But why these strange doubts and uncer tainties? What new element then entered into the appreciation of human acts? What astonishing problem was presented by these acts, which up to that time it had seemed only natural to ascribe to the free responsi bility of their author? Can it be that a man who has committed a crime may yet not be guilty? Such is the question which was for the first time clearly presented to the judicial and to the popular mind by the trial of Papavoine. This case marked a new era in the history of human justice. It was not until after the execution of this man that the judge believed himself bound to go be yond the facts themselves and inquire into the conscience, the physical and moral condition, of the accused. From that time

physiology and psychology took their stand between the criminal and his judge. It is thus that at certain periods in human history certain crimes disappear. The law becomes more lenient; its punishments di minish and are softened, and the guilty one of yesterday is only the poor unfortunate of to-day. Sunday, the 10th of October, 1824, was an unusually warm day for the season, and the woods of Vincennes were filled with a numerous throng of pleasure-seekers. Many of them came from Vincennes itself, while others came from Paris in the public convey ances. Among these last a young woman, belonging apparently to the working-class, held by the hand two little boys, one about five years old and the other six. Another woman, dressed in red, who also was evi dently one of the lower class, joined the little group and played for a while with the chil dren, and then continued her way. A man wearing a blue overcoat buttoned up to his chin and a hat with a broad band of crape upon it, had appeared to watch this scene with interest. He approached the woman in red as she left the others and said to her, " Do you know those children you have just left? " " Cannot one caress chil dren one does not know? " replied the woman shortly; and she turned and walked away. The mother of the two boys (for it was their mother) had observed this man watch ing the children and speaking to the woman dressed in red; but she attached no impor tance to these circumstances, and went on farther into the woods with her little ones. Shortly after the sky became clouded, and drops of rain began to fall. The mother di rected her steps to a small wooden pavilion Causes Celebres. near by to seek shelter from the shower, and also intending to eat there the lunch which she had brought with her in a basket. Suddenly she perceived before her the curious individual in the blue overcoat. The face of this man was frightfully pale, his arms moved convulsively, and in a hoarse voice which froze the very blood in her veins he said, " Your walk is almost ended" Seized with an instinctive terror, the mother tried to hurry on; but the man, approaching the younger of the two boys, struck him violently. The woman, believing that he had struck her son with his fist, attacked the man with her umbrella; paying no atten tion to the mother, the mysterious personage advanced to the other boy and also gave him a blow, and then turned and fled. Presently the poor mother saw her two children, one after the other, sink upon the ground; they were both dead. Uttering a piercing shriek, the unhappy woman fell fainting upon the earth. In response to her cry several persons walking in the vicinity rushed to the spot and beheld a mournful spectacle, — an uncon scious woman, and two little lifeless bodies extended side by side, both inundated with blood. Every effort was exerted to restore the wretched mother; and when at last life came back to her, she related all that had passed and described the murderer. Gen darmes on horseback were hastily sent in all directions, with orders to arrest any man whom they found alone in the woods. In the mean time the mother was taken to Vincennes and interrogated. She de clared her name to be Charlotte Herin, twenty-five years of age, a worker on lace, dwelling in Paris with her family. She de scribed fully all that had taken place in the woods. She laid so much stress upon the meeting with the woman dressed in red, whom she felt convinced must be an ac quaintance of the assassin, that immediate search was made for this woman in Vin cennes, and she was presently found. On being questioned she said that her


name was Malservait, and that she was a dressmaker in Paris. She declared that the individual who had accosted her in the bois was an utter stranger to her, that she had never seen him before in her life. The news of the murder had spread through Vincennes with the rapidity of lightning, and at this moment one Dame Jean, who kept a small variety shop, came and stated that a man, who answered the description of the assassin, had stopped near her shop while the woman in red had entered to make a small purchase, that he had exam ined this woman attentively, and that on her going out he had followed her to the woods. Some time later he had returned to her shop and asked for a knife. Dame Jean had only assorted knives which she sold by the dozen only; the man refused to take a dozen and persuaded her to sell him one, offering more for it than the price of the entire dozen. As soon as this knife was delivered to him, the man again returned to the woods. Thus three persons were found, all of whom had seen the murderer, and they agreed perfectly as to his description. He was thin, tall, pale, and wore a blue overcoat carefully buttoned up. His hair and whis kers were brown, and his hat had a band of crape upon it. While these interrogatories and investiga tions were in progress, the gendarmes were beating the woods. In one of the paths a man was discovered talking quietly with a sportsman. The gendarme ordered him to follow him. " You take anotherfor me" said the individual, who evidently intended to say, " You take me for another " I am perfectly willing to follow you, but you are only losing time and will let the real guilty one escape." The man arrested was very pale, and the sportsman stated that he had seen him com ing out of a thicket, very much out of breath. The prisoner, the gendarme, and the sports man proceeded to Vincennes. On the way the sportsman said that, at the moment of his arrest, the prisoner was asking him the 30|The Green Bag.|}}

way out of the woods, and that he had no j His nights were agitated; a profound sad ticed him examining his garments with the ness took possession of him. His sleep greatest care as if to assure himself that was filled with visions, and a vague uneasi there was no spot upon them, and that he ness filled his mind in his wakeful hours. had asked if his face was clean. As for the His condition became such that he was ad vised to travel. Acting upon this advice prisoner, he said tranquilly : " It is an abomi nable thing to have killed two children. If he went to Beauvais, where he found some one has anything to complain of in another, relatives and also met a gentleman named Branche, with whom he had had business lie can call him out in a duel; but to mur der two children, one must have the most relations. j On the day after his arrival at Beauvais, powerful motives." As soon as the arrested man was brought Papavoine, who was still seeking from the into the presence of the three women, the War Department a renewal of the contract, mother cried, " That is the monster who received unexpectedly from his mother two killed my children! " The woman Malser- orders from the War Department. As it vait identified him at once as the man who was necessary that these papers should be had spoken to her in the woods, and Dame put into proper form, Papavoine determined Jean recognized him as the individual who to go to Paris at once. He arrived there on had bought the knife in her shop. the 6th of October, having borrowed money The prisoner, on being questioned, re to pay his expenses. plied that his name was Papavoine, and He alighted at the H6tel de la Providence, with the greatest calmness he related his situated in the Rue Saint- Pierre-Montmartre, history. and repaired at once to the office of his cor Born at Mouy, in the department of L'Eure, respondents in the city, to whom he delivered in 1783, he had for a father a manufacturer the orders he had received, in order that of cloth, a man in comfortable circumstances. they might have them put into proper form. He had received an excellent education, and Until the following Sunday, the 10th of at an early age he entered the French navy. October, he lived very quietly in the city. In December, 1823, his father died, leaving On that day, feeling the need of distraction, to his wife and son an estate which was* in a he went out, after a frugal breakfast, and disordered and complicated condition. The proceeded to Vincennes. widow being unable to carry on or wind up All these declarations were found to con the business, Papavoine determined to ask form to the truth, and it was impossible to for his discharge from the navy, which he discover any relation between the prisoner obtained with a pension of three hundred! and the woman Herin, and it was equally francs. He then established himself at proved that he did not know the woman Mouy. At the time,of his father's death the Malservait. manufactory had a contract for supplying Papavoine, however, calmly repelled the the army with uniforms; but presently the accusation brought against him. In vain War Department refused to continue it, and they urged the identification of himself by by this refusal the affairs of the Papavoine the three women, and by other less impor family were placed in a very critical condi tant witnesses who had seen him not far tion. Papavoine, it seems, then repented of from the place of the crime; in vain they having given up his position; he endeavored showed him upon his hat the evident trace to re-enter the navy, but without success. of the blow of the umbrella which the poor The condition of business affairs and his mother had used against him : he persisted failure to be reinstated in the navy greatly in denying. He fought the proofs which affected Papavoine, who became really ill. accumulated against him with a rare lucidity, Causes Celebres. recalling to the magistrate remarkable exam ples of grave judicial errors. An autopsy made upon the bodies of the young victims demonstrated that their death was caused by the blow of an instrument resembling a knife. Dame Jean furnished one of the eleven knives remaining of the dozen out of which had been taken the one sold to Papavoine; and this knife applied to the wounds fitted perfectly. The investigation added new facts to those already known. It was ascertained that Papavoine had always exhibited a strange character; he was of a taciturn nature, but at the same time 'kindly-disposed and obliging. He had never manifested any of the small vices which are almost inevitably met with in young men. Very uncommunicative, sen sible, faithful to his duties, respectful to his superiors, he had always been noted as an unsympathetic man, but as an excellent em ploye and as a reliable, peaceable person. It was discovered, it is true, that when, on his journey from Beauvais to Paris, he wrote to his mother asking for more wearing ap parel and also begging her to send him two sharp table-knives. These knives were found in the Rue Saint-Pierre-Montmartre. Papavoine, then, had not departed for Vincennes with the intention of committing a murder. As for the knife bought of Dame Jean, it was impossible to discover any trace of it. Suddenly, on the 15th of November, Papa voine renounced his denials. He confessed that he committed the crime; he confessed even more than was asked of him. He declared that he had been deceived in killing the son and datighter of the woman Herin, and that it was his intention to have mur dered the Enfants de Fiance. Four years only had elapsed since the fatal day on which the Due de Berri had been struck down by Louvel. France had not yet recovered from the impression made by that attempt; and at the first word of Papavoine, the authorities believed that they had found a new fanatic. Papavoine, in


making these strange confessions, spoke of great revelations; he demanded an interview with Madame la Duchesse d'Angouleme and with Madame la Duchesse de Berri. This demand being refused, he insisted on ap pearing before one of the two princesses, which was also refused him. Presently a new series of acts called atten tion again to Papavoine. In his prison he attempted to set fire to his bed. Interro gated as to this attempt, he coolly declared that he wished to burn the fleas. On the 17th of November he violently seized a knife which he found near his door and' struck a young prisoner by the name of Labiey. As a motive for this new act, he said that Labiey belonged to the Orleans faction. The young prisoner was not seri ously wounded. The authorities saw in these acts the de velopment of a new system. In their eyes, Papavoine was simulating madness and seek ing in other crimes the justification of his first. But the motive for the first crime had not been discovered when the trial took place, in February, 1825, before the Court of Assizes of the Seine, M. Hardouin presiding. We give a portion of the examination of Papavoine by the President. The President. " Papavoine, in what year did you enter the navy? " Papavoine. "In 1805 I was employed in the Navy Department at Brest." "Then, after your father's death, you and your mother were reduced for subsistence to the three hundred francs' pension which you had from the navy?" "Yes, Monsieur." "Why did you go from Mouy to Beau vais?" "I was uneasy; I was sick, tormented, ill at ease." "Why did you come to Paris? " "Because my mother sent me some orders from the War Department which were not in proper form, and I wished to have them made so." 32|The Green Bag.|}}

"Why, on coming from Beauvais to Paris, than say things which might aid my defence, did you bring two table-knives in your I expressly charged myself. I longed to see valise? " the end of this affair, even if it had a most "I have already told you that I was ill. I disastrous issue for me." rose in the middle of the night. I had a thousand wild ideas. I was accustomed to "What was your object in buying this place near me a sword and loaded pistols. knife? " Not having taken these weapons on my "I had seen a dungeon at Vincennes; I journey, I used the two knives, which I put, thought that it contained prisoners, and I one under my pillow and the other on my believed that with my knife I could deliver night table." them:' "Why did you go to Vincennes on Sun "You did not buy the knife until after you day, the 10th of October? " had seen the woman dressed in red caressing "To distract myself. I was tormented, the children; and you have not, besides, in suffering; I wished to take the air." any of your previous examinations, spoken "How were you dressed? " of your desire to deliver prisoners." "I wore a blue overcoat, black stockings, "I was consumed with fever; I had no clear ideas; I did not know what I did. " and shoes." "Was your overcoat buttoned? " "Was the knife concealed in your pocket?" "I believe that it was buttoned." "I think so." "At Vincennes you followed a woman "It was after seeing the children that you wearing a red dress?" bought the knife. What was your motive "I may have followed her, but it was me for striking them? " chanically. I was so agitated that I did not "I was not in my right mind when I struck know what I was doing." the children; I do not know what impelled "You followed this woman to a shop? " me to do so. I would have given my own "I do not recollect." blood rather than shed theirs; it was a fren "You saw the woman with the red dress zy which made me commit this incompre talking to a woman who was with two hensible act." children? " "You remember having struck the chil "I do not recollect. I was in a deplorable dren? " state; I did not know what I was doing. I "Yes, Monsieur." recollect nothing about it; I was tormented "Then you fled into a thicket? " continually. I do not know what I did; I "Yes, Monsieur. " do not remember any circumstance." "What did you do with the knife?" "Your memory was clearer at the prelim "I buried it in the earth." inary examination? " "You appreciated, then, the enormity of the "I merely agreed then to what that lady crime you had committed, since you fled? " "The deed, which I involuntarily com stated." mitted, produced a sudden revolution in my "You bought a knife at the shop which mind, which made me comprehend what I the lady dressed in red entered? " had done." "As you fled you met a sportsman? " "Yes, Monsieur, it is possible; I do not recollect. During the preliminary examina "Yes, Monsieur." "Did you not tell the gendarme who ar tion I was cruelly affected by the deplorable condition in which I found myself, by the rested you that he was losing time and that handcuffs by which I was confined. It was he would, perhaps, let the real guilty one an entirely new situation for me. Rather escape? " Causes Celebres. "I believe I told him that." "Do you still persist in your declaration that you wished to strike more august victims?" "No, Monsieur. I was so wearied by the painful position in which I found myself, that, not being able to destroy myself, I wished to hasten, by every possible means, the end of my torments. I would have ac cused myself, I believe, of wishing to assas sinate the Eternal Father, if the idea had come into my mind." The President read from the notes of a prior examination in which Papavoine ex plained how the idea had come to hini to say that he had wished to kill the Enfants de France. An officer wearing epaulettes had said, as they were conducting Papavoine through the streets of Vincennes, " Look! there is the man who attempted to assassinate the Enfants de France." These words, heard by the accused, had given rise to the idea of declaring that such had been his project. The President then continued : — "You pretend that you were led to com mit the act of the ioth of October in conse quence of the effects of a fever, by a sort of mental aberration; but your conduct since your departure from Beauvais shows that you were in full possession of your reason. The letters that you wrote to your mother are full of sense; so it was not madness which impelled you." "What motive could I have for killing those children? / had no interest in so doing. "That is your secret. Up to this time no one has been able to discover anything upon that point. However, on examining all that has passed before and since the murder, it must be that the access of madness seized you on seeing the children, and left you as soon as you had struck them. Immediately after the crime you were confronted with the mother, who cried, " There is the mur derer of my children." And you said that 5


you did not know her. You were brought before the bodies of the children, and you declared that you did not recognize them. All your responses were full of sense." "This crime was so far from my thoughts that / really believed that I had not com mitted it. Besides, I have a family, and I did not wish to dishonor them by confessing the crime." "For a whole week you -denied being the author of the double crime committed at Vin cennes; you said that they were mistaken, and you maintained this with spirit; and it was not until you were warned that the mother of the children and several others identified you, that you said that you had intended to strike the Enfants de France. Explain all these circumstances to the jurors. They prove that you were not mad." "I was filled with terror, with fears, but I never felt a desire to shed blood. I did not act like a sane person." "When you said that you wished to strike the Enfants de France, you surrounded this declaration with so many circumstances — some true, others probable — that it is impos sible that you did not have full possession of your reason to invent them. You said, for example, that one of the children whom you killed resembled one of the Enfants de France. You defend yourself very skilfully at the present moment, and you appear to be in possession of a sound mind." "I do not claim that I am always insane." Other witnesses were heard. The most of them, while testifying that Papavoine was naturally of a morose and melancholy tem perament, were loud in their praise of his probity and uprightness. He was an hon est man, very humane and fond of children. Papavoine was eloquently defended by M. Paillet, a young advocate from Soissons and a friend of the Papavoine family, the defence being temporary insanity. His skilful argument impressed, but did not convince, the jury and the judges. The theory of the defence was too bold and |The Green Bag.|}}


novel. Monomania, that word of modern creation, was not then accepted. Public opinion did not believe, any more than the magistrates, in these passing aberrations of the mind, in these involuntary impulses, in this irresponsibility for crime. M. Hardouin, the President, clearly summed up the facts in the case, and after an hour's deliberation the jury found Papavoine guilty. The President pronounced the sentence of death. No trace of emotion was visible upon the features of Papavoine, who arose and said calmly, " / appeal to Divine justice! " In spite of every exertion made by his family to obtain royal clemency, the unhappy


man was executed, on the 25th of March, in the Place de Greve. It will be observed that science was not called upon to establish the mental condition of Papavoine. It was not the same a few months later when all Paris was horrified by a similar crime. A young girl named Henriette Cornier, without motive, without con sciousness of her actions, cut off the head of a little girl whom she did not even know. Three physicians were appointed by the court to examine as to the mental condition of the girl Cornier. Papavoine's death saved this girl's life. She was sent to a hospital instead of to the scaffold, as she would have been but a few short months before.


WE print below a paper, signed by dis tinguished legal names, which can hardly fail to bring it home to lawyers, as a debt due to their profession, that they should join the Selden Society. Much which is very important to our legal scholars lies still in manuscript, and the only way in which it can be made accessible here is through such an organization as this. The first year of the Society was 1887. The volume for that year, and also that for 1888 (which will soon be published), can be had by subscribing for the year named. The yearly subscription (due for each year on January 1 of that year) is one guinea ($5.18), payable to the General Secretary, or to any of the Local Secretaries. We append also a list of the American Secre taries; but we are compelled to omit from this number the full circular of the Society, which can be obtained on application to any of the Secretaries. It should be added that an increase in the number of members will enable the Society to publish more than one volume a year for the same annual subscription. The material for several volumes is now ready.


The undersigned have assured themselves of the great importance of the work of The Selden Society, — an organization formed with a view, as one of its main purposes, to put into print certain legal records and manuscripts hitherto unpublished. The circular of the Society is appended to this paper. Such an organization cannot accomplish much unless its membership be large. It has seemed to us that our brethren of the legal profession might be widely induced to join The Selden Society, if their attention were directly called to the matter; for we are persuaded that in every way our law will gain much from the careful historical and scientific investigations which are now going forward in many quarters, and which this Society will materially assist and promote. Melville W. Fuller. Horace Gray. Oliver VV. Holmes, Jr. Russell S. Taft J. I. Clark Hare. Theodore W. Dwight. C. C. Langdell. Wm. G. Hammond. Edmund H. Bennett Geo. Tucker Bispham. December, 188S.

Henry Wade Rogers. J. D. Cox. Henry Hitchcock. M. M. Bigelow. Wayne McVeagh. R. C. McMurtrie. Joseph H. Choate. Geo. W. Biddle. Wm. Henry Rawle. The Selden Society. [Circular of 1888.] The Selden Society was founded in 1887 to encourage the study and advance the knowledge of the history of English Law. Its objects may be outlined as follows : I. The printing of MSS. and of new editions and translations of books having an important bearing on English Legal History; II. The collection of materials for Dictionaries of Anglo-French and of Law Terms; III. The col lection of materials for a history of English Law; IV. The holding of meetings for the reading and discussion of papers; V. The publication of a selection of the papers read at the meetings and of other original communications. The second volume of the Society's publications, which will be issued in respect of the subscription for 1888. will be a volume of Selections from the earliest Manorial Rolls extant, edited with a trans lation by Mr. F. W. Maitland, University Reader in English I^aw, Cambridge. The term " Manorial Rolls " may perhaps hardly give a fair impression of the contents of these records. Only a small part of them is taken up by conveyancing entries, such as surrenders, admittances, and the like. By far the greater part is taken up by contentious pro ceedings; and these are of many different kinds. In the first place, there are the actions for land held by villein services, and disputes between the lord and his tenants as to services and rights of common, and similar matters. In the second place, there are numerous personal actions for debts and trespasses, matters quite unconnected with land law. In the third place, the lord usually has the leet jurisdiction. The first stages of a criminal prosecution often take place in the local courts; and the pettier offences are punished there, the king's courts hardly as yet interfering with any crime which falls short of felony. The mediaeval law as to of fences answering to our modern misdemeanors and offences punishable upon summary conviction must be found in the rolls of the local courts, which were in truth the police courts of the neighborhood. The procedure before these local tribunals is of very great interest, as it preserved many archaisms which had disappeared from the king's courts be fore the time at which our extant records begin. Lastly, the whole system of local police, of frank pledge and so forth, is displayed. In short, the whole legal life and much of the social life of a mediseval village is recorded in one way or another


upon the manor rolls. In the Public Record Office there is a rich collection of these rolls, many dating from the reign of Edward I., and a few even from the reign of Henry III., relating to manors which at one time or another came into the hands of the Crown. It is probable that there are rolls equallyearly in other libraries and in private hands; and about such the Council will be grateful for any in formation. If the number of subscribers is suffi ciently large, more than one volume will be issued in respect of the year's subscription. The first publication of the Society, issued in respect of the subscription for 1887, is a volume of Thirteenth Century Pleas of the Crown from the Eyre Rolls preserved in the Public Record Office, edited with a translation by Mr. F. VV. Maitland, University Reader in English Law, Cam bridge. Many of these criminal cases are very interesting, and they throw more light than cases of almost any other class on the manners and cus toms of the people. They are not, however, on that account the less valuable from the point of view of the legal historian. The criminal cases in the Year Books are not many, and yet they have to fill the long interval between Bracton and Staundford. Many points are still obscure, andnone more so than the history of the petty jury. The volume begins with the year 1 200, the point at which the Rotuli Curia Regis, published by Sir Francis Palgrave for the Record Commissioners, comes to an end, and contains many cases from the reign of John, which illustrate fully the working of the ordeals of fire and water. It contains also many cases from the first part of Henry III.'s reign, which may serve to show how a substitute for the ordeals was gradually found in trial by jury. Though for the most part the cases are cases of felony, still many of the grievances redressed by the Great Charter are illustrated, and care has been taken to collect whatever throws new light on the procedure of the ancient local courts, — the system of frankpledge, the representation of counties and boroughs for judicial purposes, the condition of the towns, their corporate privileges, and the like. The Council hope soon to continue the publica tion of Select Pleas of the Crown, suspended for the present in order to give variety to the Society's work. In course of time it may be possible to carry on the selection as far as the year 1500. Every volume should be more interesting than its 36|The Green Bag.|}}

predecessors, as the records become fuller and more elaborate. It is also proposed, as soon as possible, to print a series of records of real actions and of cases illustrating villein status and villein tenure; but how soon these can be undertaken depends entirely on the number of subscribers. In all the publications of the Society there will be a full subject-index and complete indexes of the names of all persons and places, thereby ren dering the volumes of great value to local historians and genealogists as well as to lawyers. The Council will be glad to receive offers of help from all persons who are willing to assist in carrying into effect the Second of the Society's objects, — the collection of materials for the Dic tionaries of Anglo-French and of Law Terms. Directions for the plan to be adopted in collecting materials have been kindly drawn up by Prof. W. W. Skeat. On application to the Honorary Secretary, a copy will be forwarded to any person willing to assist. An account of the principal classes of MSS. with which the Society proposes to deal may be had from the Honorary Secretary by members of the Society gratis, or by non-members at the price of one shilling. Mr. Bernard Quaritch, 15 Pic cadilly, W., has been appointed agent for the sale to non-members of the Society's publications. The price to non-members of each volume of the So ciety's publications will be £ 10s. The Annual Subscription to the Society is one guinea, due on the first of January for the year then commencing. Members have no further lia bility of any kind. Each subscriber will receive a copy of all the publications issued in respect of the subscription for the year. A composition of twenty guineas is accepted in lieu of all Annual Subscriptions, constituting Life Membership from

the date of composition, and in the case of Libra ries, Societies, and Corporate Bodies, membership for thirty-years. Subscriptions should be paid, in America, to Prof. VV. A. Keener, Cambridge, Mass., Honorary Secretary for America, who has kindly undertaken to receive all American sub scriptions; in England, to the Honorary Secretary and Treasurer, P. Edward Dove, 23 Old Build ings, Lincoln's Inn. March, 1888.

HONORARY SECRETARIES. America: General Secretary, Prof. V. A. KEENeR, Cambridge, Mass. Local Secretaries. Illinois: Chicago,ColiN C. H. Fyffe, 23 Portland Block. Maryland: Baltimore, William T. Brantly, 225 St. Paul Street. Massachusetts: Boston, Charles C. Soule, 154 Beacon Street. Worcester, Kockwood Hoar, 9 P. O. Block Michigan : Detroit, Thomas Spencer Jerome, Griswold Street. Minnesota : St. Paul, HeNRY B. Wenzell, National Ger man American Hank Building. Missouri : St. Louis, P. T. Bryan, 506 Olive Street. New York: New York City, John W. Houston, 346 Broadway. Ohio : Cincinnati. Joseph D. Brannan, 30 W. 4th Street. Cleveland, Wm. E. Cushini;, Mercantile Bank Building. Pennsylvania: Philadelphia, Abram H. Wintersteen, Bullitt Building. Pittsburgh, Johns McCleave, 82 Bakewell Building. Rhode Island : Providence, Amasa M. Eaton. Wisconsin: Milwaukee, Charles E.' Shepard, 86 New Insurance Building. Honorary Secretary and Treasurer, P. Edward Dove, 23 Old Buildings, Lincoln's Inn, London, W. C.

Green Bag Vol. 1 p. 36 tailpiece c.jpg

The Green Bag

Published Monthly, at $3.00 per annum. Single numbers, 35 cents.

Communications in regard to the contents of the Magazine should be addressed to the Editor, Horace W. Fuller, 15½ Beacon Street, Boston, Mass.

The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities or curiosities, facetiæ, anecdotes, etc.


As the green bag of the lawyer, although ostensibly designed for the convenient transportation of dry and musty papers of the law, frequently is made use of as a receptacle for many articles not strictly within the letter of the law; so this magazine is intended to convey to the legal profession, from month to month, a collection of articles, which we trust will prove of interest, although they may not all prove to be strictly legal. Our "Green Bag" is not intended as a text-book or a legal reporter; and the lawyer who turns to these pages for material which will aid him in the preparation of his case will seek in vain. But if wearied by the labors of the day his mind requires relaxation, it will find in the "Green Bag," we hope, entertainment and amusement.

The magazine will be made up of articles upon interesting topics by leading members of the bar, short biographical sketches of prominent lawyers (with portraits), a collection of legal antiquities, curious cases, causes celebres, etc. The humor ous side of the law will not be neglected, and the "Green Bag" will be liberally supplied with the latest legal anecdotes. A considerable space will also be devoted to current legal news and gossip.

A leading feature will be a series of fully illustrated articles upon the various law schools in the United States, the Supreme Courts of the United States and of the several States, etc.

It has seemed to us that a work of this kind will supply a long-felt want in the profession, namely, a bright, entertaining magazine, designed rather to interest and amuse than to instruct; and that is just what we intend the " Green Bag " to be. With these few words we introduce our new venture to the profession, and bespeak for it a kindly reception at the hands of our legal friends.

The antiquity of the " green bag," as the badge of a lawyer, is indisputable. It appears that barristers carried them in the reign of Queen Anne. In Dr. Arbuthnot's "History of John Bull," is the following : " I am told, Cousin Diego, you are one of those that have undertaken to manage me, and that you have said you will carry a green bag yourself rather than we shall make an end of our lawsuit. I'11 teach them and you to manage."

Additional evidence of the fact that lawyers used to carry green bags towards the end of the seventeenth century, is to be found in " The Plain Dealer," a comedy by Wycherley. One of the principal characters in the play is the widow Blackacre, a petulant, litigious woman, always in law, and mother of Jerry Blackacre, " a true, raw squire, under age and his mother's government, and bred to the law." In act i.. sc. 1, we find the following stage directions : " Enter Widow Blackacre with a mantle and a green bag, and several papers in the other hand. Jerry Blackacre, her son, in a gown laden with green bags, following her." In act iii., sc. 1, the widow is called impertinent and ignorant by a lawyer, of whom she demands back her fee, on his returning her brief and de clining to plead for her. This draws from her the following reply : " Impertinent again, and ignorant, to me! Gadsbodikins, you puny upstart in the law, to use me so! You green-bag carrier, murderer of unfortunate causes," etc. Further on, to Jerry Freeman, she says : " ... rather than wear this gown and carry green bags all thy life, and be pointed at for a 'torny."

A good story is told of a learned English conveyancer who had been requested by some of his family to bring home with him one evening from chambers a child's hat and a pair of shoes. As he was in the habit of carrying home papers every evening in his bag, in this receptacle did he place the articles required. When he had reached the churchyard in Portugal Street, he was accosted by the watchman. "I say, Mister, what ha' you 38|The Green Bag.|}}

got in that 'ere bag o' yourn?" " Got, got!" ex claimed the learned conveyancer; " why, I 've got my papers, to be sure." " Ah! that 's very true, I d' say," replied the old Dogberry; " but come along o' me, and we '11 see what your papers look like! " All remonstrances were useless, and the distinguished gentleman was compelled to accom pany the trusty guardian of the night to the watchhouse, which was a few doors off. When they arrived, the watchman took the bag, opened it, put his hand in, and exclaimed with a look in finitely knowing, as he drew forth the little cap : "Ah, nothing but papers! I thought so." Down went his hand again; out came the shoes. " Ah, nothing but papers! I wor sure of that." He then told the enrageil lawyer that he must stop there until he could give a good account of himself; but at last, yielding to his entreaties, allowed him to send for bail. He consequently sent to Lincoln's Inn; and when some of his learned friends arrived, they found the incarcerated conveyancer seated in the chair of the night-watch, advising on a ponderous abstract which was stretched on a table before him! A year or two ago, a suburban lawyer left his bag on a train of the Boston and Lowell Railroad. On discovering his loss, he returned to the station, and inquired at the proper office if anything had been seen of " A green lawyer's bag." The pe culiar form of the inquiry leaked out, and for months the unhappy owner heartily wished that he had never attempted to recover that bag.

LEGAL ANTIQUITIES. One of the earliest acts, if not the first, making education compulsory was that passed in the reign of James IV. of Scotland, which ordained that all barons and freeholders send their sons to grammarschools at eight or nine years of age, and keep them there till they have " perfect Latin," and thereafter to the schools of " Art and Jure " for three years. That act was passed in 1496. In 1579 an act was passed ordaining that "Sang schools " be provided in burghs for the instruction of the youth in music. These acts may not indeed have produced great results in education, but they show that minds were at work with liberal forecast for the welfare

of the country, at a time when it is commonly sup posed that all public men and courtiers were alike selfish and factious. Thkkk is said to be an unrepealed law of New Jersey, passed while the State was a British Colony : "That all women, of whatever age, rank, profes sion, or degree, whether virgins, maids, or widows, who shall after this Act impose upon, seduce, or betray into matrimony any of his Majesty's subjects by virtue of scents, cosmetics, washes, paints, arti ficial teeth, false hair, or high-heeled shoes, shall incur the penalty of the law now in force against witchcraft and like misdemeanours." In the " Lives of the Lord Chancellors of Ire land," we are told that the Irish Parliament at Trim enacted this curious statute : " That those who would not be taken for Englishmen should not wear a beard upon the upper lip; that the said lip should be shaved once at least in every two weeks, and that offenders therein should be treated as Irish enemies." We are also told that James II. employed his Irish judges in diplomatic missions, and in Eng land they were received with derision and nick named " The Potato Embassadors." In the wording of an old deed a certain boun dary line was described as terminating at " a stump where Daniel Harrington licked William Jones." This reminds us that in the early days of the town ship of North Hatfield, Mass., a road was laid out which was described as " running from Pochang meadow to the stream where old Mr. Doolittle's horse died." In 483 a. d. the Emperor Zeno issued the fol lowing edict to the Pnetorian Prefect of Constan tinople (Code IV. 59) : — "We command that no one may presume to exercise a monopoly of any kind of clothing, or of fish, or of any other thing serving for food, or for any other use, whatever its nature may be, either of his own authority, or under a rescript of an Em peror already procured, or that may hereafter be procured, or under an Imperial decree, or under a rescript signed by Our Majesty; nor may any persons combine or agree in unlawful meetings, that different kinds of merchandise may not be sold at a less price than they may have agreed upon among Editorial Department. themselves. Workmen and contractors for build ings and all who practise other professions, and contractors for baths are entirely prohibited from agreeing together that no one may complete a work contractedfor by another, or that a person may pre vent one luho has contractedfor a workfrom finish ing it : full liberty is given to any one to finish a work begun and abandoned by another, without apprehension of loss, and to denounce all acts of this kind without fear and without costs. And if any one shall presume to practise a monopoly, let his property be forfeited, and himself condemned to perpetual exile. And in regard to theprincipals of other professions, if they shall venture in the future to fix a price upon their merchandise, and to bind themselves by agreements not to sell at a lower price, let them be condemned to pay 40 pounds of gold. Your Court shall be condemned to pay 50 pounds of gold if it shall happen through avarice, negligence, or any other misconduct, the provisions of this salutary constitution for the prohibition of monopolies and agreements among the different bodies of merchants, shall not be carried into ef fect." — Candian Law Times. The Emperor seems to have been called upon to grapple with the same social questions which con front us to-day, and he certainly appears to have been equal to the occasion. Have we a Zeno among us?



"Non dormientibus leges subvetiiunt," I read, And got this fine old maxim well planted in my head; But soon I learned it had been held, All in the Mass. Report, That passenger in sleeping-car Could action bring in tort. "De minimis non curat lex" I 'd read in many a book : So with ideas full well enlarged for mighty things I 'd look; But when for ten cents suit was brought For shirking fare on car, I thought our dear old mother Lex Amavit minima .' "The law doth not approve delay :" so runs the Latin phrase, And so with youthful ardor I would try to shun delays; But soon enlarged ideas I got From elders at the bar, Who, when I 'd efforts make to haste, Would loudly laugh, Ha! ha! "Within a Court of Equity with clean hands one must come: " A rule which should apply to all, but only does to some; For oft when gazing round the bar, I 've seen most " awful paws " Whose owners still got Equity, Its remedies and laws.

LEGAL MAXIMS. A SONG. AIR: " CALIFORNIA BILL." Oh, Themis! goddess of the law, to whom we tow the knee! Thy precepts and thy maxims we study faithfully : We con them o'er with rev'rend care; But still I must submit, That in the practice of the law They sometimes fail to hit. Chorus.

But, desperandum nil7 Oh, desperandum nil.' Tramp bravely on, my brothers, in The grand old legal mill!

"Wherever marriage is, in truth, a dowry yon will find : " In early youth this pretty phrase full greatly pleased my mind; But sometime after knot was tied, I looked her assets o'er, And found my wife had quite forgot This little form of law. "For every wrong a remedy the law doth sure provide : " So I believed until, in fact, the truth of this I tried; But when " poor debtor," richly dressed, Snapped fingers in my face, Within this phrase a fallacy I thought that I could trace. 40|The Green Bag.|}}

But yet, with all these little flaws, we clearly love thee still, And to thine everlasting health a brimming glass we '11 fill : May thou still cheer us on our path With help that never fails, And wield with equal justice still Thine awful sword and scales! a. a. m. A case was not long ago tried in a provincial court, and in due course the judge summed up dead against the prisoner. The jury retired to consider their verdict, and were an unheard-of time, under the circumstances, making up their minds. The judge's usual dinner-hour came and went, and still the jury agreed not; whereupon his lordship made inquiry, and found that one obsti nate fellow was holding out hard and fast against the other eleven. This was intolerable, in the face of so distinct a charge; so my lord ordered the jury to be brought before him. Then, with ponderous solemnity, he told them that in his summing up he had stated the facts and the law so plainly that their verdict ought to be both prompt and cor dially unanimous, and that the man who persisted in setting his individual opinion against those of eleven thoughtful and sensible men was unfit to discharge the lofty duties of a juryman. At the termination of the judge's forcible remarks, a squeaky voice from the jury-box asked : " Will your lordship allow me to say a word? " The judge having given permission, the still small voice was raised again to the following effect : " May it please your lordship, I am the only man on your lordship's side. Tableau. Mrs. Lardine (of Chicago). " Really, Mr. Bigfee, I think that five hundred dollars for so simple a matter as a divorce is quite exorbitant! " Mr. Bigfee (firmly, but respectfully). "Those are my usual terms, madam." Mrs. Lardine (with hauteur). " Very well, sir, you may write a receipt; but / have never paid so much before, and I never will again." Not long since, a venerable member of the legal profession from the Pine Tree State visited Boston, and while there made a call upon a brother lawyer with whom he had formerly practised in his native State. The conversation naturally turned upon the

law, and the visitor sadly lamented the decadence which had taken place since the " good old times." "Ah, Brother X.," he exclaimed, " the law is n't what it used to be when you and I tried cases together down in Maine. Why, now you may take a witness and coach him every day for two weeks, and then the d fool will go on to the stand and prevaricate .'" A stranger walked into a Massachusetts court one day, and spent some time in watching the pro ceedings. By and by a man was brought up for contempt of court and fined; whereupon the stran ger rose and said, " How much was the fine? " "Five dollars," replied the clerk. "Well," said the stranger, laying down the money, " if that's all. I 'd like to jine in. I 've had a few hours' experience of this court, and no one can feel a greater contempt for it than I do, and I am willing to pay for it." This is not bad. Two judges at General Term having given opposing opinions on a matter of slight importance, the question was settled by Judge 's quietly stating, " I agree with my brother A. for the reasons given by my brother B.! " "I have a number of authorities bearing directly upon this point if your honor would like to hear them," said a young attorney recently, in one of our Massachusetts courts. With a weary smile the judge replied : " I cannot truthfully say that I should like to hear them, but I suppose it is my duty to listen to them." Ik any one will search the old law lexicons, he will find many writs with names unknown to mod ern practitioners. That some of these writs should have been disused and dropped dpes not seem at all strange, but that the days of the Judicature Act and the Consolidated Rules should produce a new writ not known to our forefathers, and one that might be supposed to issue only after the cbject of it had passed away beyond the reach of sheriffs and bailiffs, does seem strange. A sheriff of a neighboring county lately advised the solicitors that he had duly executed the writ of Requiescat in pace placed in his hands. Whether the consequence of the sheriff's action was that another had to "join the majority." deponent sayeth not. — Canada Law yournal. Editorial Department. Baron Alderson could make puns, and had much drollery. A juryman once said that he was deaf in one ear. "Well, then," replied Alderson, " you may leave the box, for it is necessary that jurymen should hear both sides." A Dakota schoolmistress sued three young men for breach of promise. Counsel for one of the defendants moved for a nonsuit on the ground that she was too promiscuous. The court seemed disposed to grant the motion, whereupon the plain tiff asked, " Judge, did you ever go out duckshooting?" His Honor's eyes lighted up with the pride of a sportsman, as he answered : " Well, I should say so; and many 's the time that I 've brought down a dozen at a shot." " I knew it," eagerly added the fair plaintiff. " That 's just the case with me, Judge. A flock of these fellows besieged me, and I winged three of them." The motion for a nonsuit was refused. — Pump Court. "I have noticed," said a young solicitor, " that members of the legal profession are almost always brave men. It is seldom that one shows coward ice. I wonder why this is so?" "Well," re sponded an elderly lady, " I 've read somewhere that ' conscience makes cowards of us all.' And as lawyers mostly have no conscience, why, of course, they have n't anything to make them cowards." NOTES. The American Law Review says : " We are al ways glad to receive suggestions from our subscri bers as to what they .desire and do not desire. One of them writes : ' Cheap reports have or will entirely supersede law journals devoted chiefly to legal topics, such as are discussed in the text books; and you, to succeed, must devote a great deal of space to what might be termed " legal miscellany." ' " This is precisely the idea upon which " The Green Bag " has been started, which will be devoted exclusively to " legal miscellany." The savants are having a bonny rime investigat ing the best way to take off criminals by electricity. Fortunately they have a good year before the ac tual test will be demanded. Why did they not try the experiment on that mischievous elephant a few 6


days ago? The danger seems to be that the ap plication will be made too cumbrous, and that the preparations will be more appalling to the doomed man than the simple noose. It is reassuring, how ever, to learn that the Medico-Legal Society of New York do not approve of immersing the body in water, nor of placing large metal plates upon the body. But shampooing and hair-cutting seem to be recommended, — " the skin and hair at the points of contact should be thoroughly wet with a warm aqueous solution of common salt. The hair should be cut short." The latter will be as objec tionable to women as it is to female victims of the guillotine. When we read that two hundred have accidentally lost their lives by artificial electricity within a few years, we have confidence that the wise men will find a way out. If they can't, the convict might be apprenticed to anelectrical light ing company, and his sin would be sure to find him out sometime. — Albany Law jfournal. A French doctor has lately published a curious synopsis of the recent Criminal Anthropological Congress. He has discovered that, contrary to what is often believed, the criminal, as a rule, has not a ferocious countenance; and the more hard ened he is, the softer the expression of the face and the finer the traits. Abnormal development of the jaws, absence of beard, abundance of hair, and a lapping ear are also evidences of moral obliquity. The judges of the Supreme Court of Pennsyl vania have adopted the practice of wearing silk gowns similar to those worn by the Supreme Bench at Washington. Referring to the above, " The Albany Law Journal " comments as follows : — "Now arise, ye Pennsylvanian newspaper Solons, in your wrath, and sling your ink! The Pennsyl vania Supreme Court, unmindful of the traditions and proprieties of our great democracy, and in a spirit of shameful and craven and dwarfish subser viency and imitation of the revolting customs of the effete monarchies of Europe, have decided to put on gowns. Thus we go — first the Federal Supreme Court, then the New York Court of Appeals, and now the great Quaker court. If this sort of thing keeps on, we shall expect to see representatives in Congress refraining from smoking on the floor during sessions, and from squirting tobacco juice down the register or on the carpets. There is danger that we are growing too ' particular ' for a free people." 42|The Green Bag.|}}

The Chicago Union College of Law is in a prosperous condition. It numbers this term one hundred and thirty-six students. An examination of the Catalogue of the Colum bia Law School shows that there are in attendance four hundred and sixty-eight students, of whom two hundred and nine are college graduates. We desire to call our readers' attention to the appeal of the Selden Society published in this number. Of the great importance of the work of this society there can be no doubt; and the hearty indorsement by the leading lawyers of this country, including the Chief Justice of the United States, Mr. Justice Gray, and seven deans of our bestknown law schools, ought to inspire every member of the profession to aid the good work by sending in his subscription to Prof. VV. A. Keener.

ftccent SDeatfjsi.

late Sir Jonathan Frederick Pollock, Chief Baron of the Exchequer. He was born April 3. 1815, and was called to the bar in 1838. In 1846 he was appointed a Master of the Court of Exchequer, and was nominated by Mr. Disraeli in 1874 to the office of Queen's Remembrancer, — a very ancient office of State. Judge Charles E. Boyle, who was recently ap pointed by President Cleveland Chief Justice of Washington Territory, died in Seattle, W. T., Sat urday, December 15. He was born in Uniontown, Penn., Feb. 4, 1836, and was educated at Waynesburg College, Pennsylvania. For a few years he edited a newspaper, and then took up the practice of law; but in 1865 and 1866 he entered the State Legislature, and followed up this beginning of a political career by serving as representative from Pennsylvania in the Forty-eighth and Forty-ninth Congresses. Hon. George W. Marvin died at Manchester, N. H., on the 21st of December, at the ripe old age of seventy-nine. He was a native of Fairlee, Vt., but had resided in Manchester since 1836. He served with distinguished ability in the State Legislature in 1840, 1841, 1844, 1849, and 1850, and in the Thirty-first and Thirty-third Congresses. While a member of the latter body he made a speech in opposition to the Kansas-Nebraska bill which gave him a national reputation. He was for years a leading advocate at the New Hamp shire Bar, and it is said that during his career he tried a third more cases than any other lawyer who has ever lived in the State.

The venerable Samuel E. Sewall, the Nestor of the Massachusetts Bar, died of pneumonia at his residence in Boston on the 20th of December. For sixty-seven years he was in the active practice of the law, rarely missing a day from his office un til he was prostrated by the disease which proved fatal. Mr. Sewall was born in Boston, Nov. 9, 1799. He graduated from Harvard College in the Class of 181 7, and was the only surviving member of that class; and there is but one older graduate of that college now living. In 1821 he commenced the practice of the law in Boston, in which practice Edwin O. Perrin, clerk of the New York Court he had continued up to the time of his death. Mr. Sewall was a lineal descendant of Chief of Appeals, died suddenly of apoplexy at his home Justice Samuel Sewall, of colonial and witchcraft in New York, December 19. Mr. Perrin was a prominent Democrat, and was nominated by Pres times. He was an ardent abolitionist, and in 1851 he ident Johnson for Chief Judge of the Supreme was one of the counsel for the defence of Alfred Court of Utah; but his nomination was rejected Sims, a fugitive slave. He was also instrumental by the Senate, as was also his nomination for In ternal Revenue Assessor of New York. He was in forming the National Antislavery Association. As a man and as a lawyer, Mr. Sewall was greatly elected clerk of the Court of Appeals in 1868. beloved and respected, and his memory will long Judge William Badgely, who died at Montreal be cherished by all who knew him. Such men only " yield their breath." as James Montgomery on December 24 at the age of eighty-one, had been for years a distinguished member of the judi has it; they never die. ciary. He was raised to the bench in 1855, where Sir William Frederick Pollock, who died he greatly distinguished himself until a few years December 24 in London, was the eldest son of the ago, when he retired. Editorial Department. Hon. Andrew L. Greeley, of Mason Valley, Nev., died at Salisbury, N. H., last month. He was admitted to the bar in 1859. but soon after ward emigrated to California, and subsequently removed to Nevada. He was a member of the first Legislature of Nevada. Hon. D. B. Booth, assistant clerk of the Supe rior Court of Fairfield County, Connecticut, died at his residence in Danbury, January 2, of apo plexy. The deceased was probably one of the best-known lawyers in the State. He had served in the State Legislature several terms; was clerk of the Senate in 1854, was a member of the Com mittee, in 1864 and 1875, to revise the General Statutes, was the first clerk of the Court of Com mon Pleas in Fairfield County, and for many years had held the position of assistant clerk of the Superior Court. He served in almost every office in the gift of the town. He was the son of ex-Lieut.-Gov. Reuben Booth, who was also one of the leading lawyers of the State.

REVIEWS. The contents of the Law Quarterly Re view for January are : " The County Courts Con solidation Act," by Judge Chalmers; " How to Simplify our Titles," by C. E. Thornhill; " The Liability of Shipowners at Common Law," by E. L. De Hart; " Feoffment and Livery of Incorporeal Hereditaments," by L Owen Pike; " Notes on the English Law of Marriage," by Howard W. Elphinstone; " The Reform of Company Laws," by Edward Manson. The Juridical Review. — We have received an advance copy of the first number of this new quar terly journal, published by Messrs. Wm. Green & Sons, Edinburgh. The object of this Review will be, as the editor states, to record accurately and discuss impartially subjects relating to the science and practice of law and politics. The opening number contains a full-page portrait of the Right Hon. John Inglis, Lord Justice .General of Scot land, and articles on "The Faculty of Law," by Professor Lorimer; " Codification in the United States," by Hon. D. Dudley Field; " Private Bill Legislation," by R. Vary Campbell; " Municipal Socialism in Scotland," by Albert Shaw; " Mr.


Parnell's Action against ' The Times.' " by G. W. Burnet; and " The Judicial System of Germany." This new quarterly will, we predict, prove a valu able addition to our legal literature. The leading article in the Harvard Law Re view for December is an able discussion of " The Watuppa Pond Cases," by Messrs. Samuel D. War ren, Jr., and Louis D. Brandeis, in which issue is taken with the Supreme Court of Massachusetts on its decision in the case of " Watuppa Reservoir Co. v. City of Fall River." The article contains much valuable information in regard to public rights in " great ponds." Marland C. Hobbs, Esq., also contributes an exhaustive paper on " Statutory Changes in Employers' Liability." The Columbia Law Times for December has an interesting article on " Legal Education at Cam bridge " (England), by G. Glover Alexander, B.A The Advocate is the title of a new law journal, published at St. Paul, Minn., of which H. N. Ogden is the editor. The first number con tains extracts from the " Inaugural Address of Prof. Stephen O. Southall," delivered at the University of Virginia; and a full account of the banquet given in Chicago by the Bar Association to Chief Justice Fuller. The Advocate is at tractive in form, and will undoubtedly prove a welcome addition to the legal publications in the West The Chicago Law Journal has changed owner ship. The December number, issued by the new management, contains a paper on " Prohibition v. Interstate Commerce," by John Gibbons; and a short article on " Impartial Administration of Justice." The Virginia Law Journal for December con tains articles on " Speedy Litigation " and " Abol ishing the Rule of Fellow-Servants." With this number this enterprising journal completes its twelfth volume. Hereafter it will be issued weekly. The American Law Review. November-Decem ber, 1888. offers its readers two able .ind extremely interesting articles upon the "Jury System in Sweden and in America," the one by Herr Fahlcrantz, of Stockholm, and the other by Judge Caldwell, of Lit 44|The Green Bag.|}}

tie Rock. " Contracts in Restraint of Trade " are discussed by James M. Kerr, of Rochester; and John Henry Wigmore contributes an interesting paper on " Louisiana : the Story of its Jurispru dence." An article on " Maritime Collisions " contains much that will be of interest to admiralty practitioners. Johns Hopkins University Studies. — The first number of the seventh series is a sketch by F. C. Montague, Fellow of Oriel College, Oxford, of the life of Arnold Toynbee, that interesting young Englishman whose last years were devoted to an endeavor to ameliorate the condition of the working classes. The story of his struggles to attain the realization of his passionate desire to mitigate the lot of human misery is one of exceed ing interest. Dying at the early age of thirty-one, with his great work hardly begun, he had never theless sown seed which has already borne its fruit. " Some persons seldom address their clients with out slipping into a style of flattery. Toynbee, who loved the people with all his heart and was, per haps, prejudiced in their favor, avoided this perni cious cant. We give a short extract from one of his addresses which might well serve as a model for some of our American speakers. After reminding his hearers that a rise in wages was desirable in the interests of the whole community only in so far as it led to a rise in the civilization of the wageearners, he said : — " ' You know only too well that too many workingmen do not know how to use the wages which they have at the present time. You know, too, that an increase of wages often means an increase of crime. If workingmen are to expect their em ployers to act with larger notions of equity in their dealings in the labor market, it is at least rational that employers should expect that workingmen shall set about reforming their own domestic life. It is at least reasonable that they should demand that workingmen shall combine to put down drunk enness and brutal sports. ' " In a paper entitled ' Cheap Clothes and Nasty,' he wrote : ' The great maxim we have all to follow is that the welfare of the producer is as much a matter of interest to the consumer as the price of the product; ' — wise and true words, how seldom borne in mind! "

BOOK NOTICES. The Concurrent Jurisdiction of the Federal and State Courts. By George C. Holt. New York : Baker, Voorhis & Co., Law Publish ers. [888. Price, $3.00. This is a work which will be welcomed by the legal profession. We have had treatises before on the jurisdiction of State and Federal Courts, but none on the concurrent jurisdiction, — a question which is often puzzling even to the most experienced members of the bar. Mr. Holt treats the subject under the fol lowing heads: The Concurrent Jurisdiction of the United States Supreme Court; The ConcurrentJuris diction of the United Stales Circuit and District Courts with each other and with the State Courts; Grounds of Preference between United States Circuit and District Courts and State Courts; The Concur rent Jurisdiction of the United States Circuit Courts and the State Courts; Grounds of Preference between United States Circuit Courts and State Courts, grow ing out ofDiversity of Procedure; Grounds of Pref erence between United States Circuit Courts and State Courts, growing out of Diversity of Decisions; The Concurrent Jurisdiction of the United States District Courts and the State Courts. The work in preparing this treatise seems to have been thoroughly done, and each chapter is subdivided into sections, with distinct headings, making reference easy and satisfactory. The Principles of Estoppel. By Michael Cababf.. Maxwell & Son, London. This little work is designed, as stated by the author in his preface, " to state the real grounds of the doc trine by which a conclusive admission of fact can be exacted from parties, by reason of their conduct; the exact nature and consequences of the admission, and the limits to the application of the doctrine." The subject is discussed under three heads : " Estoppel by Agreement," " Estoppel by Misrepresentation," and " On the Doctrine generally and its Limits." There is also a short appendix, containing a note on " Estoppel by Negligence." The Australian Ballot System. By J. H. Wigmore. We have received a copy of this interesting work, but too late for an extended notice in this issue. Trie subject is one worthy of study by all who desire the purification of the ballot; and, from a hasty examina tion, we judge that Mr. Wigmore has prepared for his readers an immense amount of valuable informa tion upon this system, which has proved so successful

wherever it has been adopted.

Lord Chief Justice Cockburn. The

Vol. I.

No. 2.




February, 1889.

LORD CHIEF-JUSTICE COCKBURN. ALEXANDER JAMES EDMUND COCKBURN, the late Lord ChiefJustice of England, was descended from a Scotch family of great antiquity, which held lands of the Crown in the reign of David II. Sir William Cockburn obtained a grant of the lands and barony of Langton in 1595, and his son, William Cockburn, Esq., was created a baronet of Nova Scotia in 1627. From him the late Chief-Justice descended in male line. His father, Mr. Alexander Cockburn, was some time Envoy Extraordi nary and Minister Plenipotentiary to Co lumbia, and married a daughter of the Vicomte de Vignier. The late Sir Alexander Cockburn was born on Dec. 24, 1802, and was privately educated, partly abroad and partly in Eng land. He owed to this early training, and to the French parentage of his mother, a remarkable acquaintance with foreign lan guages. French he spoke with great purity; and he was familiar with Spanish, German, and Italian. In 1822 he became a member of Trinity Hall, Cambridge, and in his sec ond year gained prizes for the best exercises in English and Latin. He took his degree in law in 1829, and was at once elected a fellow of his college, — a dignity which, with its emolument, he held for many years. In 1825 he had been admitted a member of the Middle Temple, and was called to the bar on Feb. 6, 1829, and went on the Western Cir cuit and the Devon Sessions. Soon after the Reform Bill was passed, he commenced, with Mr. Rowe, the publication of the reports of the decisions which arose out of that measure; and the volume in which 7

the reports were collected was of great and substantial merit. He was consequently engaged on several contests before election committees, and in 1834 was made a mem ber of the Municipal Corporations Commis sion. In 1 84 1 he received his silk gown, and his practice became large and profitable. He showed at this time a great tenacity on the subject of briefs. He always insisted on having his fee with his brief; and the story is told that when a brief for an election com mittee was ready for delivery but the fee was not forthcoming, the parties, on the assembly of the committee, found themselves without their counsel, who, observing that " a man might as well play for nothing as work for nothing," had gone off to the Derby. In 1847 Mr. Cockburn was a candidate for Southampton on advanced Liberal prin ciples. His success in the House of Com mons was conspicuous. He did not attempt to take it by storm; he spoke little at first, and then only on subjects which came within the range of his profession; and three years passed before he had an opportunity of dis playing his ability as a debater. But when the chance came he was ready for it. In the session of 1850 a vote of confidence in the foreign policy of the Ministers was proposed in the House of Commons, and during the debate Mr. Cockburn delivered the famous speech which secured his future career. This speech was delivered on June 28, and on July 12 Mr. Cockburn received the SolicitorGeneralship. Upon attaining this preferment, Sir Alex ander Cockburn was knighted in the usual course. The next year (1851), on the eleva 46|The Green Bag.|}}

tion of Sir John Romilly to the bench as Master of the Rolls, Sir Alexander Cockburn became Attorney-General, and held that office until he went out with Lord John Russell in February, 1852. In De cember of the same year he came in again with the Coalition Ministry, and was first law officer of the Crown until' 1856, when, upon the death of Sir John Jervis, he was appointed Chief-Justice of the Common Pleas. He left the bar with the greatest reluctance. He was satisfied with his stand ing and popularity in the House, and was earning a very large income as AttorneyGeneral. He accepted the post, however, and held the office until June 24, 1859, when he was made Lord Chief-Justice of England. This latter office he held for twenty-one years, and occupied the judicial bench alto gether twenty-four years. His charges to juries were masterpieces of popular oratory; and there was little chance for the most skil ful counsel if the Lord Chief-Justice became convinced of the duty to sum up against him. His considered judgments were marvels of exposition. An indisputable merit was the pains he took with his work, especially with such portions of it as came into more than usual publicity; and he would, in- important cases, find some reason for adjourning the court, in order that he might prepare a judg ment or a charge which would be of classical excellence. The,most famous case which came before him as Chief-Justice was that of the cele brated Tichborne claimant. The tedious and patient investigation of this case, together with the humorous and elaborate summing up by Chief-Justice Cockburn, which lasted eighteen court days, are comparatively fresh in the memory of the legal profession. Never, perhaps, was a judge's temper more tried by counsel than on that occasion. Sir Alexander Cockburn served on several commissions, and was chairman of the Cam bridge University Commission in 1877- 1878; but his most important function, outside the

duties of Chief-Justice, was to act as arbitra tor for Great Britain at Geneva in 1872, in the settlement of the Alabama claims. His conduct as arbitrator has been -severely com mented upon, notably by Mr. Caleb Cushing; but the existing fact that the sum awarded on that occasion in favor of the claims of the United States exceeded by some millions of dollars the proofs subsequently admitted, so that a large surplus remains still unaccounted for, may perhaps be received, now that ani mosities are hushed in the silence of the tomb, as some extenuation of a protest that doubtless was made honestly and patrioti cally, even though ill-judged and without avail. In private life, Sir Alexander was a warm friend, and many instances are given of his kindly nature. One in particular deserves special mention. At an early stage in his career he witnessed what he conceived to be a miscarriage of justice in the case of a prisoner of the name of Galley, who was con victed and sentenced to transportation for life. It was a case in which he had no per sonal interest, he being simply present at the trial as a member of the bar. He attempted, however, at the time, to bring the case be fore the authorities and get the sentence reversed, but in vain. A short time before his death the case of this unfortunate man was unearthed, and again did Sir Alexander come forward as his champion, and move the Home Secretary to remit the nominal remainder of the sentence, and allow Galley, a respectable Australian citizen, to end his days free from the stigma of an unjust con viction. Failing in this, he did not rest until he had brought the case before Parliament, and finally succeeded in his generous object. He was a man of varied accomplishments, a keen sportsman, a skilful yachtsman, a so ciety man of the best type, and finding also in his leisure moments time to contribute to the periodicals of the day; his last effort in that respect being entitled " A History of the Chase," in which he exhibited much archaic, classical, and sylvan lore. yohn Austin and his Wife.


With unimpaired, or apparently unim naturally inclined to ease and pleasure, he shrank paired physical powers, and with undimmed from no trouble, he declined no toil, that might intellect, Sir Alexander performed to the lead him to the truth. He kept his mind open to last day of his life with efficiency the duties! the very end, and he was always ready to listen to any piece of evidence or weigh any argument that of his high office. On the 20th of Novem ber, 1880, he presided at court as usual, and in his judgment was likely to lead him to do justice. returned to his home in apparent good health. Like other men, he had prejudice and bias of opin ion, which he shared with the rest of mankind. He That same night he died suddenly from an never permitted them, so far as I saw, for a single attack of heart disease. instant to divert him from a single-minded and We cannot better close this short sketch j most earnest pursuit of what he believed to be the of his life, than by quoting briefly from 1 right between the parties. If you had a good a tribute paid to his memory by Lord case, however complicated it might be, however Coleridge : — much prejudice there might appear to be against "I can say, from personal knowledge, that no it, only make Sir Alexander Cockburn understand man who ever was opposed to Sir Alexander Cock- it, and you were perfectly safe in his hands. Now, burn ever complained of the slightest deviation on this is simple, literal truth. No one, I am satisfied, his part from the sternest rules of honor and in can deny it. Yet stand and reflect what high and tegrity. As a judge, his chief and leading char great qualities of head and heart this simple truth acteristic appeared to me to be a sleepless and implies. He died, as he often said in my hearing ardent desire to do justice as between man and he wished to die, in harness, enjoying life and do man to the suitors who came before him. Though ing duty to the very end."

JOHN AUSTIN AND HIS WIFE. By Prof. W. G. Hammond. THERE is very little in legal authorship of that indefinable charm which, from the days of Homer and the author of Job, has attached to the making of books. Al most the first step in literary taste is usually the boy's love of reading about the personal habits of poets and novelists and historians, and all who live by their pen; and in spite of much proof to the contrary, few of us can conquer our early impression that such work is in itself poetic or romantic, and altogether different, in the eyes of the author himself, from the dull drudgery by which other men earn their daily bread. The youthful aspir ant for fame thinks of himself as dashing off an ode or a string of sonnets in much the same poetic fervor with which he reads them; and the lives of authors as usually written, foster the same belief, by painting in brilliant colors all that is spectacular and

striking in the career of their heroes. But none of this romance of literature is found in the arid field of legal authorship. Nothing could be drier or less interesting than a de scription of the labor to which we owe the interminable rows of calf-bound volumes, which have their genesis in no nobler passion than a young lawyer's desire for clients, or a publisher's for money. But once in a while, even in this arid field, the lover of sentiment may find a book whose history is in itself a romance as strik ing as ever produced a poem or a picture. Even in " The Calamities of Authors," or any of the other works which detail the vicissitudes of literary life, we shall hardly find a more surprising story than that of the Lectures on Jurisprudence, which have now made the name of John Austin famous wherever English law is administered or 48|The Green Bag.|}}

studied. Written in sickness and doubt, delivered but twice, and then to small and rapidly dwindling classes of embryo barris ters, cast aside in disgust, to lie neglected for all the rest of the author's life, they owe their resurrection and splendid success to a woman, to the loving pride of a devoted wife, who spent all the years of her widowhood in building this monument to her dead hus band's fame. John and Charles Austin were the sons of an Englishman, who had begun life as a miller, but made money enough by army contracts during the French war to feel war ranted in trying to raise his children to a higher social position. For John, therefore, a commission was bought in the army, while Charles was bred to the bar. Of the latter it is sufficient to say that he made a great reputation and greater fortune as parliamen tary counsel, when railroad companies were striving for profitable charters, and paying enormous retainers to the barristers who had influence in the lobby and committee room. In short, he was a successful lawyer of the most practical type, and is remembered now chiefly by the fact that after being an ardent Liberal to the very verge of socialism all his life, he exhausted his ingenuity in framing a will by which his property should be strictly entailed to the farthest limit allowed by English law. John Austin, the elder of the two, was born in 1790. He appears to have lacked all the practical qualities of his brother. He did not like the army, and sold his commission after five years' service. Then he studied law, and was admitted to the bar at the age of twenty-eight in 18 18, but gave up practice in 1825. Under all the delicate phrases with which his biographers have veiled the truth, it appears plainly enough that his fail ure was almost as conspicuous as his broth er's success. A part of this is attributed to ill health, still more to a fastidious temper and morbid self-consciousness, which all his life prevented him from dealing effectively with his fellow-men. He had acute and

subtle intellect, with much logical power, hut lacked perseverance. He does not seem ever to have been a close student. When one reads his lectures carefully, after the first glow of admiration has passed away, one cannot help feeling that they betray a sur prising want of acquaintance with the learn ing of his chosen profession. Of course, we do not expect in them the technical treasures of a Coke, or a Comyn, or even the mastery of detail shown by writers like Blackstone or Woodeson. But there are many passages in his work which reveal, as well by what he does not say as by what he does, the fact that he never took the pains thoroughly to master the system which he afterward criti cised so severely, and so effectively. He probably would have been a much better lawyer if he had been less interested in many problems of social science and human life which had only an indirect bearing upon the trial of causes. He loved to speculate upon these, and above all to talk about them. There is a lively letter from Mrs. Grote to Mrs. Senior, in the Life of George Grote, where she says : " Don't you know what is the matter with John Austin? He has been languishing for the want of a listener. . . . It is the indispensable condition of his exist ence; talk, and monological talk." In this connection the very keen analysis of his character given in the Autobiography of John Stuart Mill is worth quoting : — "Mr. Austin was the eldest son of a retired miller in Suffolk who had made money by con tracts during the war. He was for some time in the army, and served in Sicily under Lord W. Bentinck. After the peace he sold his commis sion and studied for the bar. He was a man of great intellectual powers, which in conversation appeared at their very best,' from the vigor and richness of expression with which under the excitement of discussion he was accustomed to maintain some view or other of most general subjects, and from an appearance of not only strong but deliberate and collected will, mixed with a certain bitterness, partly derived from temperament, and partly from the general cast yohn Austin and his Wife.


would have done at a later date, when a of his feelings and reflections. The dissatisfac tion with life and the world, felt more or less in spirit of compromise prevailed, and each the present state of society and intellect by every school had learned to profit by the favorite discerning and highly conscientious mind, gave truths of its opponent. But it must be added, in his case a rather melancholy tinge to the char too, that it was unfortunate for Austin and acter, very natural to those whose passive moral for English law, that his German training susceptibilities are more than proportioned to was not received from the historical school. their native energies. For it must be said that The sympathy which that school has since the strength of will of which his manner seemed shown for English law is a sufficient proof to give such strong assurance expended itself that he would have found in their doctrines principally in manner. With great zeal for hu teaching far better adapted for transplanta man improvement, a strong sense of duty, and tion, theories answering far more truly to the capacities and acquirements the extent of which facts of the common law, than those of Thi is proved by the writings he has left, he hardly baut. Had Austin become as zealous a dis ever completed any intellectual task of magni ciple of Savigny as he was of his rival, the tude. He had so high a sense of what ought to be done, so exaggerated a sense of deficiencies study of scientific jurisprudence in England in his own performances, and was so unable to might have reached, a generation earlier, the content himself with the amount of elaboration point to which it has later been brought, sufficient for the occasion and the purpose, that under the guidance of jurists like Sir Henry he not only spoilt much of his work for ordinary Maine. use by overlaboring it, but spent so much time The Lectures on Jurisprudence were de and exertion in superfluous study and thought, livered for the first time in London Univer that when his task ought to have been completed he had generally w:orked himself into an illness sity, in 1828-1829, to a class which is said to without having half finished what he undertook. have exceeded his expectations and to have included several men who afterward became From this mental infirmity combined with liabil famous in law, politics, or philosophy. Some ity to frequent attacks of disabling though not of these, such as John Stuart Mill for in dangerous ill-health, he accomplished through stance, took full notes of his lectures, and life little in comparison of what he seemed capa ble of; but what he did produce is held in the entered into the new study with a zest that very highest estimation by the most competent must have been a delightful reward for all the judges." 1 labor of preparation. " He was much im When the new London University, with pressed and excited," says his wife, " by the all the confidence of inexperience, undertook spectacle of this noble band of young men, to revolutionize the study of law, Mr. Austin and he felt with a sort of awe the responsi seems to have been selected, by common bility attaching to his office. He had the consent, to inaugurate the new system. He highest possible conception of the impor had already given up the attempt to practise, tance of clear notions on the foundation of and went to Germany to prepare himself Law and Morals to the welfare of the hu there for his duties. He spent the greater man race; the thought of being the medium part of a year at Bonn, in studying German through which these were to be conveyed and civil law. He came entirely under the into so many of the minds destined to exer influence of the so-called philosophical school cise a powerful influence in England, filled of jurists, of which Thibaut was the recognized him with ardor and enthusiasm." Any leader. The conflict between this school and teacher who loves and appreciates his work, that of Savigny was then at its fiercest, and whatever his topic, can understand at least neither party could have exerted so useful an the enjoyment which Austin found with influence upon an English stranger as it such pupils. If the highest of all intellect ual pleasures be, as we may well believe it 1 Mill's Autobiography, pp. 73-75.

|The Green Bag.|}}

very slight attendance indeed, sometimes only as many as three or four; the last at tendance was eight." (Testimony of Mr., afterward Justice, Keating, before the Inns of Court Commission, p. 144.) The very limited attendance at University College has often been mentioned as a proof of the difficulty of obtaining general atten tion to improved methods of legal education. "Like the band But another fact in the same connection has That in the Grecian games had strife, generally been overlooked; that at the same And passed from eager hand to hand The onward dancing torch of life." 1 time another course of lectures of a more The feelings with which Austin regarded practical character, delivered in the same his choice students, those whose minds were institution, was largely attended, and un fully open to his own, are clearly shown in doubtedly had a very considerable immediate the memoranda (printed by his wife) of his influence. This was the course of Mr. An requests to them after his first lecture. " I drew Amos (afterward a member of the therefore entreat you, as the greatest favor Supreme Council of India), who was pro you can do me, to demand explanations and fessor in the University College for four or ply me with objections. Can bear castiga- five years, and had an attendance all the tion without flinching, coming from a friendly time of fifty to one hundred and fifty hearers, hand. In short, my requests are that you lecturing an hour every day in the week, ex will ply me with questions, and that you will cept while absent on circuit and during the long vacations. His success also encouraged attend regularly." (Preface, p. 7.) But unhappily there was no endowment for a great number of other lecturers in King's the chair of Jurisprudence, and the thrifty College, the Law Institute, etc. Mr. Amos managers of the University required it to be had also private classes in his chambers, self-supporting. If the lamp of science does which were very fully attended. A full ac not require gross material oil, costing money count of his success may be found in his in the market, the lamp of life does; and in testimony before the Select Committee of 1832 Mr. Austin had to bring his lectures the House of Commons, on legal education (Rep. of August 25, 1846, beginning at p. 94, to a close, and resign his chair in the Univer sity, for the want of a paying attendance. In Ques. 1232. Upon Austin's contemporary November, 1833, however, he was appointed course, see Ques. 1254; upon the method pursued by Amos, Ques. 1258), where he to deliver lectures upon the general princi ples of Jurisprudence and International Law, states that he found the lectures that related in the Hall of the Inner Temple. Here to the practice of the law were most attrac there was no difficulty about support. He tive. Austin " had but a very small number received ten guineas (about fifty dollars) for who attended upon his lectures; they were very intelligent men, but a small number of each lecture, as did Mr. Starkie, who lec them" (Ans. to 1254.) The comparative tured on the Principles of the Law as admin istered in the Superior Courts. But this effect produced by the two courses upon the experiment was even briefer than the other. improvement of legal education in England The lectures were discontinued in January, would be an interesting topic for speculation. Much might be said on both sides. It may 1835, "in consequence of the slight attend ance of members. They were reduced to a be well, in the interests of legal science, to hold as high as possible the standard of ju 1 Et (juasi cursores vitse lampada tradunt — Lucretius, ridical study, when we are discussing the II. 79.

to be, the exercise of creative thought, by those to whom the rare gift of genius has been intrusted, the second place at least may be claimed for the act by which the grand ideas which are the world's choicest treasures, are handed on to the best minds of a new generation, eager to seize and carry them forward, yohn Austin and his Wife. merits of Mr. Austin as a jurist; but it can not be denied, with his lectures before us in printed form, that he failed singularly to show to ordinary minds the connection be tween the truths he expounded and the practical work for which they were endeavor ing to fit themselves. It is no answer to this to say that his conception of the subject was too dignified to permit his illustrating it from the particular rules of English law. The dignity of teaching consists, first of all, in what it accomplishes; and the first condition of this accomplishment is that the teacher reach out (or down, as the case may be) to the learner's mind, and secure his hold on that. Mr. Austin might well have taken to heart some lines from a poem, the whole of which we are thankfully certain (on chrono logical grounds) he never read, — "Nor let him get so far before his age, He loses sight of it, as we have seen A locomotive breaking from its train; Be sure to keep the string within his hands, As kite-flyers do, and running raise mankind." It seems to the writer, too, that amid all the praise lavished upon Austin's lectures since their tardy publication in 1863, the chief merit of his work has been lost sight of, and its aims entirely neglected. Certainly in the host of writers who have echoed his phrases, and accepted his theories as finalities, I cannot think of one who has set himself the task of carrying out Austin's main purpose, — the work to which all his theorizing was meant to be merely preparatory; though in fact it occupied him so long that in the final failure of the lectures as lectures, the principal work was left very incomplete. That work was intended to be, not an inves tigation of the sources of law, but a thorough analysis of the present contents of the law. He found the law expressed in loose and am biguous terms, from which no exact reason ing could be drawn, because each of them was used to denote several different notions, or one notion the relation of which to others was undefined, or (still more frequently) sev-


eral different aspects or stages of one notion or relation. Austin aimed at a more accurate defini tion of legal terms, but this was by no means all. He rightly valued legal terms as the representatives of those legal conceptions in which the entire body of the common law, if not of all law, has its being, and he aimed at a clear and exhaustive inventory of these conceptions. His object was to so fix and define each term that it should have one pre cise meaning, and that it could be used (as a mathematical term might be) in the different members of a syllogism, or in any other steps of argument without the risk of a fal lacy from varying senses of the same term. He knew that there could be no true science that had not such exact terms to reason with. They are the units of arithmetic, the points and lines of geometry; and any attempt at science without them would be like reckon ing "big" and "little" pieces of chalk, or surveying a field by the paces of a dozen different individuals, measuring each from his own starting-point. To use his own language as to this object (p. 34) : " Having determined the province of jurisprudence, and distinguished general from particular jurisprudence, I shall analyze cer tain notions which meet us at every step, as we travel through the science of law." Of these leading notions, or these leading ex pressions, he then gives a list, beginning with " Person and Thing," ending with " Sanc tion," some thirty or more in all. True, he includes this analysis of " notions which pervade the science of law " among the "merely prefatory, though necessary or inev itable matter," and states the main subject of his lectures as consisting in the considera tion of law, its sources, purposes, etc. (p. 35). But to get the true force of this we must recall his theory. Had he recognized the common law as it really is, existent apart from enactment, and immersed in these very con ceptions of fact which he was analyzing, he would have seen that this analysis was of the very body and essence of his subject. It be 52|The Green Bag.|}}

gins with Lect. XII. p. 353 (Vol. I.), and ex tends to p. 524, Lect. XXVII.; while much of the matter in Vol. II. might with equal or more propriety have been classed with it. Indeed, the one great service that Austin rendered to English law was that in all his lectures, whatever their declared purpose, he set the example of this analysis, and was careful and discriminating himself in the use of legal terms. He cleared up a great many fallacies and confusions by his own efforts, and he did still more good by showing the way in which they and others like them were to be got rid of. If his example had only been followed in this respect, we might now have had a legal language which would di minish the time and labor spent in argument by at least one half. He also gave back to English law some indispensable notions and distinctions that had originally belonged to it, but of which it had almost been deprived by neglect or the mistakes of his predecessors; for example, person and thing, jus in rem, jus in per sonam, etc., though even these he failed to bring into clear and intelligent connection with the " practical " rules of his contem poraries, so that they could reason from them. And so plans of the greatest promise came to an untimely end, in disappointment, and what seemed to be hopeless failure. One more was added to the countless number of lives, capable of much utility to their fellows, that have been literally thrown away in Eng land and America for the want of some pro vision enabling them to pursue their favorite science or art in the interests of humanity at large, and without reference to the imme diate profit or glory of any school or sect. Mrs. Austin tells us that "it was from no unsteadiness of purpose, no shrinking from labor, no distaste to a life of comparative poverty and obscurity, that he abandoned the pursuit to which he had hoped to devote his life. If there had been found for him some quiet and humble nook in the wide and rich domains of learning, it is my firm conviction

that he would have gone on, slowly, indeed, as the nature of his study and his own nature rendered inevitable, and with occasional in terruptions from illness, but with unbroken tenacity and zeal to the end of his life." Yet this was in a land where there are more endowments for educational purposes, more wealth given for the support of teachers and students, than in all Protestantism be side! It is melancholy to reflect that while Austin was starved out of his career there were half a dozen professorships and like places in the older universities, intended for exactly that purpose, held as acknowledged and shameless sinecures by men who could very well live without them. (The proof of this may be found in the Reports on Legal Education, already referred to.) But we of America must be very cautious how we re buke the faults of our English cousins in this regard. While millions are lavished yearly, by public and private liberality, upon schools and colleges of every kind, how many places are there among them all where a man like Austin could find even " the quiet and hum ble nook " that would enable him to pur sue his work free from anxiety as to tuition fees? Is there one such nook in the country, except it may be in the one department of Theology? and there would the most ear nest pursuit of truth recommend him so well as a correct utterance of the particular shib boleth of his sect? Although Mr. Austin lived twenty-five years after the failure of the Temple lectures, he never resumed his task, and never completed the course in ac cordance with his original plan. He seems to have thrown aside the entire mass of manuscripts in disgust, and to have shrunk from even the effort of arranging its frag ments. In 1832 he had published the first six lectures, under the title, " The Province of Jurisprudence Determined; " but when the small edition was exhausted after some years, he would neither permit it to be reprinted without change nor give the labor necessary to revise it to his own satisfaction. It might seem that he had dismissed the subject finally John Austin and his Wife. 53 and entirely from his mind, if it were not for the prospectus of a large work on " The Principles and Relations of Jurisprudence and Ethics," of which a single copy only re mains to inform us that he cherished such a plan. But the plan was nothing more. The work never existed, unless it were in uubibits, or in grentio legis, or in some other like legal equivalent of nonentity. It never " fed the uses " of the students of Jurisprudence, or of the author's own aimless and obscure life. No life of such talent and promise ever seemed so utterly wasted and resultless as his down to the very time of his death, in i860. So it would have been but for one woman, — the wife who had loved and worshipped him for forty years of marriage with a devo tion that all the failures of his career, all the world's neglect, all the poverty and privation of a wandering, unsuccessful life, could not shake. Mrs. Austin was the sister, we be lieve, of Isaac Taylor, of Norwich, and must have had a full measure of that rare spiritual insight, and appreciation of whatsoever things are lovely and of good report, that have marked his religious and philosophical writ ings. The Preface she prefixed to her hus band's collected writings may seem, to a cool and critical judgment, a vast exaggeration of the powers and work embodied in those writ ings. But it will be read with delight as one of the most charming prose-elegies in the lan guage, while there is a heart that can feel the exceeding beauty of a wife's unquestioning confidence and self-forgetting love. After quoting one of his letters before marriage in which, with what seems to have been his habitual morbid anxiety as to the future, he 8

speaks of privations and disappointments be fore them, she says : — "The person to whom such language as this was addressed has therefore as little right as she has inclination to complain of a destiny dis tinctly put before her and deliberately accepted. Nor has she ever been able to imagine one so consonant to her ambition, or so gratifying to her pride, as that which rendered her the sharer in his honorable poverty. I must be permitted to say this, that he may not be thought to have disappointed expectations he never raised, and that the effect of what I have to relate may not be enfeebled by the notion that it is the queru lous expression of personal disappointment." (Preface, pp. iii, iv.) In the year after Mr. Austin's death his widow reprinted the volume of 1832, and then with wonderful patience and assiduity labored upon the long-neglected manuscripts until every possible morsel of his lectures was reproduced in the edition of 1863. The result was a success so marked and brilliant for a book of the kind that the dead author in his most ambitious dreams could hardly have anticipated it. There has been noth ing like it in the last century of English law. Many causes beside the real merit of Aus tin's writings contributed to the result. In the thirty years since the delivery of these lectures the time had been slowly ripening for a new advance in " the greatest and the slowest of all sciences;" and what John Austin in the prime of his youth spent all his strength on in vain came to pass, as it were, at a touch from the hand of a woman, who worked for his sake, not her own. But while all the world were reading and talking of the book and of him, she had rejoined him.

Green Bag Vol. 1 p. 53 tailpiece.jpg

|The Green Bag.|}}






George I. SWASEY. MOST of the law schools in America have ' professorship created. In 18 17 the Harvard not originated so much from a real Law School, as such, was established by the public demand for them as from a desire enactment by the Corporation of statutes upon the part of college authorities and which called for the maintenance of a dis their friends to add new departments to those tinctive school as distinguished from the already attached to their respective institu lectureship which had existed for about three tions. The literary atmosphere which sur years. But the school was in advance of the rounds institutions of learning very readily times, and did not represent any public creates a belief that certain enlargements demand, and for more than ten years the at are needed in the sphere of instruction, but tendance did not average more than seven this conviction does not always reflect an teen students. educational necessity. As early as 1792 a Perhaps the two most notable exceptions law lectureship was created in the University to the introductory statement may be found of Pennsylvania and a lecturer appointed, but in the old law school at Litchfield, Conn., it was quite a number of years before any and in the school which is the subject of lectures were delivered by the incumbent. this article. The school at Litchfield, which In 1 78 1 a friend of Harvard devised quite a was in a flourishing condition in the last cen valuable piece of real estate to the college tury, seems to have been undertaken almost for the establishment of a professorship of as a labor of love by its friends; and it is law, but it was not till nearly thirty-five years doubtful whether a professional school ever afterwards that the proceeds of this devise existed which had less of selfish motive upon were devoted to the specified purpose and a the part of its officers or whose work was Boston University Law School.


more enthusiastically done. The lectures place; and a feeling that the best system delivered in that little country town by Mr. embraced lectures in connection with the Reeve and Mr. Gould, especially those of the practical work of an office resulted. The latter, gave the school a national reputation. long hours of weary office work, unrelieved The lectures of Mr. Gould upon Pleading by advice or assistance, through which so were subsequently published, and for a logical many students formerly plodded are now and clear treatment of the subject for stu brightened by healthful suggestions of the dents constitute the best book upon the lecturer which systematize and digest the subject ever written; the treatise is one of knowledge obtained by the individual work

the classics of the of the student. But law. The Law School a theoretical knowl of Boston University edge of law obtained does not owe its origin from school and text either to a prevailing book work alone desire to add new leaves a young man departments to the at his graduation with University without no accurate practi reference to the state cal knowledge, and of professional life at throws him helpless the time, or, upon the among his elder broth other hand, to any one ers. This same evil man devoted to the result has been for a theory of the law and long time recognized possessed with an in the medical pro ardent desire to im fession, and has been part a knowledge of remedied largely by its technicalities to opening to students young men. The in that profession the school was the legiti privileges of clinics, mate result of con hospital practice, and ditions which existed charity work, so that in Boston and its vi a young physician cinity eighteen years starts in life with ago. For many years some practical quali FRANCIS WHARTON. Boston had been the fication for his work. commercial centre of At the time the BosNew England, and, as a consequence, was I ton Law School was established it was a fact becoming more and more with each year that many students who would have liked to the centre of litigation and legal life. attend some law school were deterred from so With the growth of population there had doing by the fact that it rendered office work been a corresponding increase of lawyers impracticable and did not supply the place and students. It has long been a settled of such office experience. It was further felt rule in legal education that a thorough and that the instruction at the nearest law school, systematic knowledge of the law can best be namely, at Cambridge, was particularly tech obtained by attendance upon lectures, but in nical and historical, and when completed ne the adoption of that principle and in dis cessitated an apprenticeship in some good couraging office study alone, the profession attorney's office. In this situation, with went too far, and a necessary reaction took young men at the very door of the Univer56|The Green Bag.|}}

sity anxious to avail themselves of the privi lege of personal contact with the leading lawyers of Boston in their offices and at the same time to acquire a thorough knowledge of the science of law with a view to its appli cation, the Trustees of the University felt that there was a public demand and necessity for the establishment of a law school as a de partment of the University, and that such an establishment would be consistent with and in furtherance of the purpose for which the University was founded. Boston University had been created by the Commonwealth of Massachusetts, in 1869, under a very liberal charter, and it was the intention of its founders and friends to make it one of the most progressive institutions of the country. In accordance with that inten tion the statutes of the University provide for a group of colleges, with distinctive facul ties and administrations. All departments of the University so organized as to pre suppose on the part of the student a col legiate training or its equivalent are termed schools. Almost immediately after the charter was granted, the College of Liberal Arts was opened (now located in a fine building on Somerset Street), and also the College of Music. The Massachusetts Agricultural College became the College of Agriculture. Three professional schools have been es tablished; namely, Schools of Law, Medicine, and Theology. These colleges and schools, together with the School of All Sciences (which under the statutes is for graduates only), make up the present composition of the University. Upon the establishment of the Law School, in 1872, the Hon. George S. Millard was chosen dean, and upon him fell largely the work of organization. This choice was a fortunate one. A Boston Latin School boy and a graduate of Harvard, his whole social and literary life had been passed in companionship with such men as Longfel low, Holmes, Everett, Winthrop, Bancroft, Webster, and Choate, and he had had at one

time Charles Sumner as a legal associate. His wonderful oratorical power is familiar history; at the time of his death, in 1879, Longfellow said of him : " He was abso lutely unrivalled in fluency of speech, in beauty of diction and suggestiveness of thought, and as to his power of memory." A wonderful tribute from a man of the con servative judgment and statement of Long fellow! It was natural that such a man should select for his associates none but those of the highest talent; and such was the fact. The lecturers whom he called around him embraced Francis Wharton, Judge Benjamin R. Curtis, Hon. Henry W. Paine, Judge Edmund H. Bennett, N. St. John Green, Esq, Judge Benjamin F. Thomas, Judge Dwight Foster, Hon. Charles Theodore Russell, Judge Otis P. Lord, Prof. Melville M. Bigelow, Hon. Edward L. Pierce, and- Hon. Wm. B. Lawrence. Such a dis tinguished list of lecturers had probably never before been connected with any law school. Judge Curtis never delivered any lectures. His death took him away from this new field of labor, to which he had looked forward with much pleasure. The school was opened in the building 18 Beacon Street (which at that time was also used by other departments of the University) with about sixty students, whose character at once justified the existence of the school. Among the students were many men of ma ture years and members of the bar, who had not been able to obtain that exact and syste matic knowledge of the law which they had come to realize was demanded from them, and which they were now for the first time enabled to obtain without a sacrifice of the time which they had to devote to profes sional work. The rules of the school were informal, and the students were practically at liberty to attend the exercises or remain away as they saw fit; but the lectures were of such a high grade that the attendance was always large. The lecturers seem to have appreciated the fact that the students wanted practical information; and while the theories Boston University Law School.


of the law were ably expounded, the constant | 1864 the South in her extremity called upon aim was to impart knowledge which would these young men to assist in checking the ad be of value in actual practice. Perhaps the vance of the Federal force under Sigel, upon chief strength of the school at this time was the field at Newmarket they bore noble evi the unconscious influence which the lecturers dence to the power which had been shaping exercised upon the students. The men who them, and performed deeds of valor equal to

gave the instruction had a national repu those of the knights of old. tation, and were actively engaged in the The second year of the School opened practice or administration of the law; they with a larger attendance than before. This brought to the lecture was true of the third hall theatmosphereof and fourth years also, the court-room, and during which latter enthused the stu year twenty- three dif dents by their per ferent colleges were sonality. The force represented among of such influences is the students. During the school year of hard to estimate, but every young man who 1 874-1 875, Mr. Hillard's health became has been brought into so poor that Mr. N. contact with them St. John Green was during his student selected to perform days knows that they the executive part of leave upon him as Mr. Hillard's duties lasting an educational and to act as dean. impress as any ex Mr. Green also lec perience of his life. tured upon Kent's For many years prior Commentaries and to the war of the upon Torts. He con Rebellion, the State tinued to act as dean of Virginia had mainuntil his death, which tained a Military 1 School at Lexington occurred after the in that State. It was close of the school here that Stonewall year 1875-1876; HENRY W. PAINE. from that time to the Jackson, as he was afterwards known, present Hon. Edmund lectured from 1852 to 1861, and it was H. Bennett has been the dean of the school. from its halls that he went forth to battle Mr. Green was a strong character; he was for the cause of the South, never to re full of earnest endeavor to strengthen the enter them alive, but to be borne dead school, and fond of his students. His weak through them by weeping students. Here ness, if he had any, as an instructor, was his during the war came many wounded and contempt for the maxim stare decisis. He disabled Confederate soldiers, who occupied loved to attack adjudications. He had a great their time in lecturing to the students. One fund of good nature, of which the students of those students has recently told us what often availed themselves during his lec a great influence the presence of those gal tures by questions which were not always lant soldiers had. It educated the pupils relevant to the point at issue, and which alike in courage and discipline; and when in he always received pleasantly, and in fact 58|The Green Bag.|}}

seemed to enjoy. His memory is most fit tingly honored by the large portrait of him which hangs in the lecture hall of the school. In 1872 the standard maintained by the law schools of the country was remarkably low. Even such an old school as that at Cambridge did not require any examination for admission, promotion, or graduation. Neither was there at that time any law school which had a three years' curriculum. At its inception the University School in sisted upon examinations, and particular im portance was attached to those for graduation. It also from the first had a three years' cur riculum, the third year of which was, until 1876, a post-graduate course; but in that year it was added to the undergraduate course, and a three years' course of study, with minor exceptions, was made a pre requisite to graduation. Other law schools have since adopted similar provisions in all the above matters; but the Boston Law School was the leader in the movement, and is entitled to the credit of placing legal academic education upon a higher plane than had before been maintained. In 1875 the number of students had so increased that more accommodations were demanded, and the large hall in the Wesleyan building on Bromfield Street was se cured for a lecture room. Subsequently the library and dean's office were removed to the same building, and other improvements made by the addition of recitation rooms and the fitting up of a large lecture hall which was capable of seating some one hundred and seventy-five persons. In 1884 the school was removed to its present loca tion in the fine law-school building on Ashburton Place, and adjoining Jacob Sleeper Hall, a building used by other departments of the University. The period during which the school was located in Bromfield Street was a most im portant one; it gave system and consistency to the school, and developed it into one of the best managed, equipped, and most thorough schools in the country.

Up to the time of the removal to Brom field Street, and indeed for a year or two after that, the instruction consisted almost entirely of lectures, with such incidental discussion as would naturally arise from an occasional interruption and question. Moot courts had been held with considerable regu larity, and had been conducted by some mem ber of the faculty. But in the fall of 1877 the system of recitations was inaugurated. These recitations have become one of the greatest elements of strength in the school; and in this measure, as in others, the school has led all the other law schools in the country. It has given to this branch of instruction, as distinguished from instruc tion by lectures, a prominence nowhere else attained. It has been the practice of the faculty since this system was instituted to intrust this work to young men, and always to some one other than a lecturer. It is true that young men who have just finished their own school work do not know quite as much as their elders, but they are far better adapted to conduct recitations; they appre ciate more quickly and more fully the diffi culties and embarrassments of the pupil, and can therefore help him more. Two instruc tors were appointed in 1877, and their work was so satisfactory that in the fall of 1878 two more were added to the list; and from that time to the present the school has always had an able corps of such instruc tors. Time has but increased the satisfaction which attended the introduction of this sys tem; and it has become the settled policy of the school to leave the discussion of particu lar adjudications, their reasonings and plead ings, to the recitation room; and for the lecturer to lead the students along the great lines of principle which pervade his subject, giving them the broad foundation for his statements and citations to the great leading cases. It has of late years become quite common to study law in some of our schools without any such work in the lecture room, and to make it all the study of cases, from which Boston University Law School. the general principles which shape the com mon law may be induced; and it is insisted that to state those principles in the first instance to the pupil and then leave him to study the cases is to discourage such study, and to put the student in a position where he will take the principle for granted without induction from the decisions. The first objection is, in substance, that the

student will take the statements of the lec turer for granted. After a constant ex perience of ten years as instructor and lec turer, the writer is de cidedly of the opinion that the average law student takes nothing for granted; he is a vitalized interrogation point; and if the state ment of the lecturer is not a true and logi cal conclusion from the cases cited and the reasons given by the lecturer, he is pretty sure to be apprised of that fact by his students. If there is any force in the second objection, which is, that the DWIGHT statement of a prin ciple prevents or at least discourages inductive reasoning, then the study of geometry is a mistake, in so far as it states a proposition and requires the student to prove it. Any one who has wit nessed the recitations at the Boston Law School knows that the students study cases most critically, and often get the best of the instructors in the discussion of such cases; he knows, also, that the students are not deterred from case study by the system which prevails, but that the whole class is alive with energy and curiosity.


It was while the school was located in Bromfield Street that the moot courts were placed upon a more substantial basis. As finally arranged, the court consisted of three judges, one of whom was a member of the faculty, the other two being members of the senior class; of a clerk, who was required to keep his records with legal accuracy; of a sheriff and other court officers. Cases were prepared and assigned to the students for ar gument; or the stu dents were required to draw writs, to make the officers returns of service, and draw the pleadings necessary to bring the parties to an issue. All this work was made oblig atory upon the mem bers of the school; they enjoyed the ex perience greatly, and some of the clearest and most logical argu ments that the writer has ever heard have been delivered before these moot courts. Although the proceed ings are always dig nified, there is in the style of argument a FOSTER freedom which per haps would not be tolerated in some tribunals. A few years ago a case involving the law of libel was argued before the court, which had as its Chief Justice for that sitting a member of the faculty noted for his gravity and also for the works which he has given to the profession. One of the counsel in the case was an Ohio boy. He began his argument by most extravagant praise of the writings of the Chief Justice, and told in glowing lan guage how their reputation had spread over the whole West; then he paused for a mo 60|The Green Bag.|}}

ment as if hesitating to make the statement, but finally said seriously : " But, your Honor, I am sorry to say that there is one thing which you must do to preserve that repu tation; in the next edition of your ' Law of Torts,' you must modify your statements as to the law of privileged communications." Out of these courts grew the preparation and publication of reports of the cases there argued, under the name of the " UniversityLaw Reports." These volumes are carefully made up by the official reporter, and contain statements of the cases, the briefs of counsel, and the opinion of the court. These books preserve the work of the students, induce greater care in the preparation of arguments, and make a pleasant history of one portion of the school work. Another innovation during the Bromfield Street period was the adoption of the rule that each senior should write a thesis of merit as one of the qualifications for a de gree. At about this time examinations for promotion began to receive more attention from the faculty, and were increased in thoroughness. The standard of these ex aminations is now placed so high that it would be difficult for a student to be pro moted who did not have a good compre hension of the preceding year's studies. Every school has some peculiarity of stu dent life which distinguishes it from others; that of the Boston Law School has been and is to-day the literary fellowship of the stu dents. There being no dormitories in which the undergraduates can live together, the students are scattered throughout the city, and opportunity is not given for that close social acquaintance which is afforded in some schools. But in spite of this fact there has grown up a habit of association for work which takes expression in the for mation of law clubs, and in evening study at the room of some student or at the school library or in some other room of the school building. These meetings for study, discus sion, and mutual questioning are a source of much profit to the students. There are also

at present four law clubs in the school, which are made up of those who are elected from the various classes by the older members of the clubs. Some of the lecturers of the school during the years thus far alluded to are no longer connected with it; some have died, and some have been lost through other causes beyond their own control or that of the school au thorities. The Hon. Henry W. Paine, who for years lectured upon the law of Real Property, is no longer engaged in active work. Mr. Paine began the practice of law in Maine, where he acquired a large prac tice and a fine reputation. He removed to Boston when in his prime, and there he soon took his proper place at the head of the profession. He went into court a great deal, but the most extensive part of his prac tice latterly was the writing of opinions upon cases which were sent to him from all parts of the country. There is no member of the Suffolk Bar of whom more anecdotes are told than of Mr. Paine. For the Supreme Court of Massachusetts as it was at one time constituted he had not the greatest respect, in its official capacity; and when asked his opinion of the wisdom of appoint ing a certain person of acknowledged ability to that bench, he replied, " It would be like letting a ray of light into a cave of bats." Once, when arguing a case before the court, he made a statement of the law as he under stood it to be. He was interrupted by one of the judges with the remark, " Mr. Paine, you know that is not law." " It was law until your Honor spoke," replied Mr. Paine. After arguing quite a celebrated case before the full court, Mr. Paine went abroad for a vacation, and while in England he received a letter from a friend which stated that the exceptions had been overruled. In his let ter of reply, Mr. Paine said, " I have been passing the day in a little English village, where there is a monument to one of Eng land's kings who was noted for the celerity with which he executed incompetent judges; what a harvest would that king reap were Boston University Law School. he to-day king in Massachusetts! " Mr. chusetts, which position he held until 1859. Paine was among the first lecturers at the Though on the bench less than six years, he school, and retired in 1884 on account of gained a reputation as a jurist of the highest poor health. Those who enjoyed the privi character. After his retirement from the lege of hearing his lectures will not soon bench he again devoted himself to the prac forget them or the manner of their delivery. tice of his profession, in which he gained His subject was not an easy one to present renewed successes and the respect and love in a clear or attractive form, but Mr. Paine of all his brethren at the bar. He was very succeeded in doing both. Up to the last fond of young men, and was glad to be

year of his lectures brought into contact he never used notes, with them by his work manuscript, or text at the school. His book, but, coming into hour was always an the hall promptly at ticipated by the stu his assigned time, he dents with pleasure; would at once begin he brought sunshine the delivery of his lec with him, and seemed ture, and for an hour to regard the students would speak without as his companions and the slightest hesita equals. He threw his tion upon the most whole soul into his intricate topics in a lecture, and enlivened manner which showed it with many anec his entire familiarity dotes and practical with the subject and suggestions from his his wonderful mem own large experience. ory. He rarely cited He was in the habit cases, and this pecu of closing his course liarity rendered it each year with a brief necessary for the in exhortation by way of encouragement to pre structor in the recita tion room to supple pare the students for ment the lectures with the disappointments which he knew would more or less citations. MELVILLE M. BIGELOW Judge Benjamin F. attend their early days Thomas, whose death of practice. The last in September, 1878, deprived the school of words the writer ever heard him utter were his valuable services, had lectured upon Wills at the close of his lectures for 1877, and from the first. He was born in Boston in were facetiously given as an epitome of his 181 3, and entered Brown University when a advice to his hearers : " Charge, Chester, little more than thirteen years of age While charge! On, Stanley, on! " Another lecturer whose services have been in college he showed great brilliancy and in tellectual strength, and in his discussions in lost to the school is the Hon. John Lowell, the class-room with the celebrated Dr. Way- for many years Judge of the United States District Court for Massachusetts, and after land he is said to have astonished his in structor by his wonderful power. In 1853, wards made Judge of the First Circuit. when less than forty years of age, he was His subject was Bankruptcy; but when the appointed to the Supreme Bench of Massa- United States Bankrupt Law was repealed 9 62|The Green Bag.|}}

his lectures were necessarily suspended. Judge Lowell has a wonderfully accurate legal mind, and his lectures resembled his written opinions in that they were models of exact and clear statement which expressed important things and omitted trivial matters. He had a rather curious way of giving cita tions, and one which could hardly be com mended. After the discussion of some topic, he was quite likely to say, " This principle was first laid down in Jones v. Smith, some where in the 10th or 12th Wallace, I am not sure which, but you can find it by looking in the index of cases." In the fall of 1883 Judge Dwight Foster, who had been the lecturer on Equity from the opening of the school, was compelled to give up his work, and- on April 18, 1884, his death deprived the school of one of its ablest lecturers. Mr. Foster was born in Worces ter in 1828, and was graduated from Yale College in 1848 at the head of his class. In 1860, when but thirty-two years old, he was elected Attorney-General of Massachusetts, and held the office four years. Those were trying times for persons in authority; but that Mr. Foster was equal to the situation was universally conceded, and upon his retire ment from the office Governor Andrew ad dressed a letter to him which contained the following language : " The separation has been looked forward to by me with keen regret, and I feel no less its consummation. On your serenity, clearness, firmness, and in telligent judgment both as a lawyer and friend, I have relied with the utmost con fidence. Your advice, while always healing and pacific, has been always true-headed and manly. The more public professional efforts you have made, as well as the general con duct of your department, have all added new honors to an office heretofore filled by able men, some of them of unsurpassed capacity and fame." In 1866 Governor Bullock ap pointed Mr. Foster an Associate Justice of the Supreme Court, which position he re signed three years later and returned to the practice of his profession. Judge Foster's

practice at the bar and his services on the bench had given him a reputation as one of the first equity lawyers in Massachusetts, and it was this fact which made his selection by Mr. Hillard to lecture upon that subject eminently proper. Francis Wharton, LL.D., another of the original lecturers, was constantly connected with the school as lecturer on the Conflict of Laws up to the time of his death, which occurred Feb. 21, 1889. He was born in 1 82 1, and was graduated from Yale College in 1839. He was professor of English Liter ature in Kenyon College from 1856 to 1863, when he was ordained a minister of the Epis copal Church, and made rector of St. Paul's Church, Brookline. He was at one time con nected with the Theological School at Cam bridge. He was an author of legal works whose reputation was world-wide. Among them were "Treatise on Criminal Law," "The Law of Agency and Agents," " Trea tise on the Law of Homicide," " Treatise on the Conflict of Laws," and " Standard Digest of International Law." He was a joint writer of a " Treatise on Medical Jurisprudence." In 1884 the school was removed from Bromfield Street to 10 Ashburton Place. This building had been formerly the resi dence of Mr. Augustus H. Fiske, who for many years was a very prominent lawyer in Boston with an extensive practice. The structure was entirely remodelled. The base ment is devoted to lounging and dressing rooms. The first floor is occupied by the Dean's office, one room of the Library, and a large Lecture Hall, with a seating capacity of some two hundred. The second floor is given up entirely to the Library, and the third floor has two large recitation rooms, which are also used by the students for their law club meetings. There are also rooms on the fourth floor which are used by the law clubs. If the Boston Law School is a success, it owes that result to its present Dean, the Hon. Edmund H. Bennett, more than to any other man. Mr. Bennett was born in Man Boston University Law School. Chester, Vt., in 1824, and was graduated from the University of Vermont in 1843. He studied law with his father, who was for many years an Associate Justice of the Supreme Court of Vermont. The profes sional career of Mr. Bennett began at Taun ton, Mass., whither he removed in 1848. He was mayor of the city in 1865, 1866, 1867; and in 1858 he was appointed Judge

of Probate for Bristol County, and held the position until 1883, at which time he re signed. During the years 1870, 1871, and 1872 he was a lecturer at the Harvard Law School, and was made a lecturer at the Bos ton Law School in 1872. His practice has always been a very large one, and he has written, edited, or assisted in editing more than a hundred volumes of legal works. Among them are a "Digest of Massachu setts Reports," " Ben nett and Heard's Lead ing Criminal Cases," "Bennett's Fire In surance Cases," and KDMUND H. American editions of "Goddard on Ease ments," "Benjamin on Sales," and "Indermaur on the Common Law." He has been for several years one of the editors of the "American Law Register." Judge Bennett has perhaps been able to accomplish this great amount of work by reason of his habit of untiring industry. He is never idle, and has great facility in passing from one class of work to another. He is a model lecturer, and excels in clearness of statement and in a power of leaving an unconfused impres sion upon the mind of a student. But per-


haps his peculiar strength is as an executive officer, and in the influence which he exer cises over the students. He has a wonder ful faculty of controlling young men. During his long service as dean it is believed that there has not been an instance of insub ordination or resistance to authority, or any dissatisfaction with his decisions in the administration of the school. It would be hard to overesti. mate his contribution to the success of the institution. There is another man who has been a lecturer at the school from its infancy whose labors should not be forgotten in this brief sketch, and that is Melville M. Bigelow, Ph.D.- Mr. Bigelow now lectures upon Torts, Bills and Notes, and Insurance. He is known throughout the United States and England as the author of various legal works, among them being his "Estoppel," " Fraud," "Equity," " Torts," and " Leading Cases on Torts." Some two BENNETT. years since, his work on "Torts" was adopted as a text-book by the University of Cambridge in England; and at the request of the University, Mr. Bigelow has prepared an English edition, which the University has published for its own use. This certainly is an honor conferred upon but few American writers. Mr. Bigelow is without question one of the finest law lecturers in America. He has a peculiar power of analysis, which he uses with great discretion in his lectures. He treats his subjects in the most exhaustive manner, but through all his discussion holds 64|The Green Bag.|}}

himself to vital principles, and impresses them upon the minds of his hearers. The corps of lecturers at the school at present embraces the Dean, who lectures upon Agency, Contracts, Criminal Law, Partnerships, and Wills; Mr. Bigelow, upon Bills and Notes, Insurance, and Torts; Judge Benjamin R. Curtis, Jurisdiction and Practice of United States Courts; Mr. Frank Good win, Real Property; William G. Hammond, LL.D., the History of the Common Law; Hon. Elias Merwin, Equity Jurisprudence and Equity Pleading; John Ordronaux, LL.D., Medical Jurisprudence and Constitutional Legislation; Edward J. Phelps, LL.D., Con stitutional Law; James Schouler, Esq., Bail ments and Domestic Relations; Hon. Charles Theodore Russell, Admiralty and Shipping, Evidence, Pleading and Practice, and Parlia mentary Law; Josiah H. Benton, Jr., Esq., Law of Railroads; Hon. Uriel H. Crocker, Massachusetts Conveyancing; Simon G. Croswell, Esq., Landlord and Tenant; James E. Maynadier, Esq., Patent Law; Charles Theodore Russell, Jr., Esq., Law of Elections. There are now six instructors in the school. The course of study, subject to slight varia tions from year to year, is as follows : —

First Year. Agency (Required). — Contracts (Required). — Criminal Law (Required). — Elo cution and Forensic Oratory (Elective). — History of the Common Law (Elective). — Sales (Required). — Torts (Required). Second Year. Review of first year. — Bailments (Required). — Bills and Notes (Required). — Domestic Relations (Elective). — Elocution and Forensic Oratory (Elective). — Insurance (Elec tive). — Landlord and Tenant (Required). — Mas sachusetts Conveyancing (Elective). — Partner ship (Required). — Real Property (Required). Third Year. Admiralty, &c. (Elective).—Char tered Rights (Elective). —Conflict of Laws (Elective). — Constitutional Law (Elective). — Constitutional Legislation (Elective). — Corporations (Elective). — Elocution and Forensic Oratory (Elective). — Equity Jurisprudence; Equity Pleading and Prac tice (Required). — Evidence (Required) . — Juris diction and Practice of the United States Courts (Elective). — Law of Railroads (Elective). — Medi cal Jurisprudence (Elective). — Parliamentary Law (Elective). — Patent Law (Elective). — Pleading and Practice at Common Law (Required), and inder Massachusetts Practice (Elective). — Roman Law (Elective). — Wills (Elective). As evidence of the work done in the school, the following table of lectures and recitations, 1887-1888, is presented: — Atvenrdancge Recatitona ions


NofLeucmtubresr. NinCulmabser. Lecturer.


E. It. & S. C. Bennett. James Schouler, Esq. M. M. Bigelow, Esq. Dr. John Ordronaux. The Dean. The Dean. Prof. Chas. T. Russell. Prof. E. Merwin. Chas. F. Jenney, Esq. Uriel H. Crocker, Esq. Dr. J. Ordronaux. Prof. Russell. Frank Goodwin, Esq. George K. Swasev, Esq. M. M. Bigelow, Esq. B. R. Curtis. J. H. Benton, Jr., Esq.

Agency. Bailments. Bills and Notes. Constitutional legislation. Contracts. Criminal Law. Evidence. Equity. Massachusetts Practice. Mass. Conveyancing. Medical Jurisprudence. Pleading. Real Properly. Sales. Torts. U. S. Courts Jurisdiction. Railroad Laws.

To Whom Delivered.

12 23 37 9 59 21 5° 11 10 9 20 64 16 5i i4 II

MiddleYear. Jrs 70 Middle Year. 34 Middle Year. 34 Entire School. i77 Junior. 36 Junior. 36 Senior 66 Senior 66 Senior. 66 Middle Year. 34 Kntirc School. 177 Senior. 66 Middle Year. 34 36 Junior. 36 Junior., Senior. 1 66 (V, Senior.

R(R)equired.E(E )lective. Maximum At endance. Minimum

38 5r 55 99 36 00 46 59 40 3° 82 56 (..I 76 74 542

At endance.

y 34 24 39 47 55 33 47 26 15 58 45 >7 53 58 3" 18

thisSubject. ofNumber Recita ions.

35 42 42 68 70 7i 38 5• 34 24 69 5« 41 («; 66 46 36

R. E. R. E. R. R. R. R. E. v.. v.. R. R. K. K. k. R

22 IO No reci tations. 41 29 No reci tations. 56 36 28 6 33 33 28 47 No reci tations. No reci tations. No reci tations 29 34 38 53 4i 10 36 45 No reci tations No reci tations. Smith v. Marrable. The Boston Law School is a young insti tution, but already it numbers among its graduates men who have taken a foremost position in their profession in different parts of the country, those who have taken high rank in the politics of their respective States and have filled most honorable positions, and




authors of extended reputation. If the later years of the school shall prove to be as suc cessful, in the highest sense of the term, as those which have already passed, its friends will be able to look back over its history as a complete vindication of its existence and its methods of instruction.



(11 M. & W. 5. — Temp. 1843.)

By John Popplestone. [// is an implied condition in the letting of a furnished house that it shall be reasonably fit for habitation.'] "DRUNSWICK PLACE is in Brighton; ■"-^ Leads to Brunswick Square; And Brunswick Square looks right on To the sea that 's there. The Marrables went to Brunswick Place; Sir Thomas the Knight, in the year of grace Eighteen hundred and forty-two, Wrote: "Yes, I think the house will do; I '11 take it furnished for a space. We 11 come at once; the bargain fix, — I '11 take it for five weeks or six." But when begins my ditty? Six and forty years ago, To see the Marrables bitten so By insects, was a pity. s! They crawled in jugs, they filled the mugs, Lay hidden in the folds of rugs, Worried her ladyship's favorite pugs Till the beasts had never a moment's ease. Some were slow as lazy slugs, And some were as light and quick as fleas. 66

|The Green Bag.|}}

In beds and chairs they sheltered snug, Into carpets and hassocks dug. In vain was every patent drug; Their safe retreats they still would hug. Powder, pastes, — all, all were tried, That chemists or the stores supplied; A hundred came for one that died. The cook complained, the children cried, The nurse gave notice; and beside The bedrooms were the worst infested, And no one slept or in them rested, Save one where they 'd not penetrated; The rest were thickly populated. There was the cimex lectularius, And all the cimicidce various; Some of all the kinds there are In genus hepteroptera. There were black ones, red ones, brown and yellow, Young and frisky, old and mellow; Of all ages, kinds, and stations, And each had hundreds of relations! Sir Thomas said, with a shuddering shrug, There were some of every kind of

In fact, you '11 see, if you 've caught my meaning, 'T was worse than a severe spring cleaning. None suffered so in all the land; it Was worse than the vilest Spanish bandit. 'T was plain they could n't, would n't stand it. Three wretched days had o'er them sped, But ere the fourth was gone they fled. Sent a note to the landlord, that within he Would find the key, and each golden guinea — 'T was eight in all — that for a week Was due. But Smith Went off to seek Sir Thomas. Found him; said, forthwith : "Go, if on going you are bent, sir; But first, if you please, my five weeks' rent, sir." "Five weeks!" Sir Thomas, angry, said; "Why, man, if we stayed on here five Days we 'd be consumed alive, Smith v. Marrable. And on the sixth be eaten dead! Worse impudence I never heard. The thing 's, as Euclid said, absurd. If more you want, why, you must sue, sir." Three months, in pleading, by them flew, sir; And then the judges, in their ermine, Sat, grave, to hear, and then determine If for a furnished house, where vermin Made life a burden quite unbearable To Sir Thomas and every other Marrable, Full rent was due. And Smith contended The law implied no warranty; A house, when let, from fault was free, Or that 't was fit for habitation; Or suitable for occupation. And that when let his duty ended, Save to collect the rent. And then did Sir Thomas answer : " Yes, that 's true Of houses let unfurnished. You Have let yours furnished; which implies The house you let is fit to live in : That 's plain to every man with eyes. That 's all the point. And if you give in, It follows that who lets may flit Whene'er he finds the place unfit — From vermin, or unpleasant st-nks, Arising from defective sinks, Or what not — for him to reside in." That day Smith was a luckless wight. The judges took the view the knight Had urged, — that warranty 's implied in A furnished house that it 's fit to abide in. Smith caught the five express, repentant; And judgment followed for defendant.


Green Bag Vol. 1 p. 67 tailpiece.jpg
68|The Green Bag.|}}


SIR EDWARD COKE, in the preface to the second part of his Institutes, has these words : " After the making of Magna Charta and the Charta de Foresta, divers learned men in the laws, that I may use the words of the record, kept schools of the law in the City of London, and taught such as resorted to them the laws of the realm." He then quotes the writ of King Henry III. in the nineteenth year of his reign, by which he commanded the mayor and sheriffs of London to cause proclama tion to be made throughout it, that no one who kept Schools of Laws in the same city should thenceforth teach them there; and that, if there should be any one keeping schools of this kind, they were without delay to make him cease. " But this writ," he says, " took no better effect than it de served; for evil counsel being removed from the King, he in the next year . . . did by his Charter, under his great seal, confirm both Magna Charta and Charta de Foresta, he being then twenty-nine years old." Sir Edward Coke seems, therefore, to con sider the above-mentioned writ as intended to attack the memory of Magna Charta and the Charter of the Forest, by silencing, in an arbitrary and summary manner, legal teachers who based upon those documents instructions in the law of England. Sir William Blackstone, however, treats this writ as intended, by the suppression of unauthorized teachers, to sanction a new legal university arising on the Westminster side of the city, and which was ultimately constituted of the several Inns of Court and Inns of Chancery. It may be doubted whether the opinion that the lawyers were so early collected together will bear examination. Of Lin coln's Inn, Dugdale mentions a tradition,

as still current among the ancients, that the professors of the law were brought in to settle in that place by Henry, Earl of Lincoln, " about the beginning of King Edward II.'s time." This was rather more than seventy years after the nineteenth of Henry III. There is an account of Gray's Inn (formerly the property of the Lords Gray of Wilton) as having been held by a lease from them by students of the law in the time of King Edward III.; and the Temple is said to have been conveyed by the Knights Hospitallers to a society of law yers during the reign of the same king. It therefore seems reasonable to doubt that at the time when Henry III.'s writ was put forth, any legal university existed. Not much, however, is known about the Inns of Court and Chancery until the time of Henry VI. Sir John Fortescue, a great and famous lawyer, and chief justice of the King's bench at that time, has left us, in his little panegyric upon the laws of Eng land, a sketch of the inns as they then existed. He says that there were then be longing to the lawyers' university four Inns of Court, each containing two hundred per sons, and ten Inns of Chancery, and in each of them one hundred persons. Most of the students in the Inns of Chan cery were young, learning the first princi ples of the law; and as they advanced in learning and grew to riper years, they were admitted into the Inns of Court. In both the Inns of Chancery and Court, not only law, but also lighter accomplishments, were cultivated, — singing among the number. There, too, in the intervals of their study of the law, they appear to have given time largely to the study of the Scriptures and of chronicles; and the sons of persons of quality were placed there for the sake of general education, though their fathers did Ancient Legal Education in the Inns of Court.

Inne, to which the next two belong; Lincolne's Inne, which enjoyeth the last two saving one; and the Middle Temple which hath onely the last : each of the houses of Court consist of readers above twentie, of utter barristers above thrise so many, of young gentlemen about the number of eight or nine score, who there spend their time in study of law, and in commendable exercises fit for gentlemen : the judges of the law and Serjeants, being commonly above the number of twentie, are equally distinguished into two higher and more eminent houses, called Serjeant's Inne : all these are not farre distant one from another, and al together doe make the most famous universitie for profession of law onely, or of any one humane science, that is in the world."

not design them to live in the practice of the profession. Passing over the long interval from Sir John Fortescue's time to that of Queen Elizabeth, we find Sir Edward Coke giving a fuller and very laudatory account of the inns : — "Now for the degrees of law. as there bee in the Universities of Cambridge and Oxforde divers de grees, as Generall Sophisters, Bachellors, Masters, Doctors, of whom bee chosen men for Eminent and judiciall places, both in the Church and Ecclesiasticall Courts; so in the Profession of the Lawe, there are Mootemen, (which are those that argue readers cases in houses of Chauncerie, both in Termes and gTaund vacations.) Of Mootemen, after eight years' study or thereabouts, are chosen utter-barristers; of utter-barristers, after they have beene of that degree twelve yeares at the least, are chosen benchers, or auncients, of which one 'that is of the puisne sort reades yearly in Summer vacation, and is called a single reader; and one of the auncients that have formerly read, reades in Lent vacation, and is called a double reader, and commonly it is between his first and second read ing about nine or tenne years. And out of these the King makes choyse of his attorney and sollicitor-generall, his attorney of the Court of wardes and liveries, and attorney of the duchy : and of these readers are Serjeants elected by the King, and are by the King's writ called ad statum et gradum servientis ad legem : and out of these the King electeth one, two, or three, as pleaseth him, to be his Serjeants, which are called King's Ser jeants; of Serjeants are by the King also con stituted the honorable and reverend judges and sages of the law. . . . "For the young student which most com monly cometh from one of the Universities, for his entrance or beginning were first instituted and erected eight houses of Chauncerie, to learne there the elements of the law : that is to say, Clifforde's Inne, Lyon's Inne, Clement's Inne, Bar nard's Inne, Staple Inne, Furnivall's Inne, Davis' Inne, and New Inne : and each of these houses consists of fortie or thereabouts. For the readers, utter-barristers, mootemen, and inferiour students, are foure famous and renowned colleges or houses of Court, called the Inner Temple, to which the first three houses of chauncerie appertain; Graie's 10



I 1 !

From other sources additional details may be learned which give a tolerably full picture of the manner of life and system of instruc tion in the inns. The year was divided into the term times, the learning or grand vacations, and the dead or mean vacation. There were two learning or grand vacations, — the one in Lent, the other at the beginning of August. Each continued for three weeks and three days. Two readers were appointed for the exposition to the members of their house of some statute during these vacations. In the Middle Temple the junior (who held his reading in the summer vacation) was a barrister just about to be received as a bencher. The other reader was a bencher of some standing, and his time of expound ing was in the Lent vacation. At these times the reader's exposition of the statute was canvassed and impugned by the elder part of the barristers of the house; and sometimes they were divided, some of them attacking and others defending it; and afterwards the reader replied in confirma tion of his opinion. It appears that the Ser jeants and judges were occasionally present at these exercises. They are said to have occupied three or four hours a day, though perhaps on alternate days; and a single statute formed the groundwork for the read ing of a whole vacation. The reader mean 70|The Green Bag.|}}

while held, according to the usage of those days, a sumptuous feast in the Hall, at which noblemen, judges, and officers of State were entertained, and sometimes the King himself. The evenings of the grand vacations were occupied with the exercise called mooting, when, according to one of the old accounts, "before three of the elders or benchers at the leste, is pleadyd and declared in homely law French, by such as are young lerners, some doubtfull matter or question in the law; which after an utter-barrister doth reherse, and doth argue and reason to it in the law Frenche;' and after him another utter-barrister doth reason in the contrary part, in law Frenche also; and then do the three benchers declare their myndes in Eng lish." These were the exercises of the grand vacations; but Stowe mentions that others similar were performed in term time, argu ing and debating cases after dinner, and mooting after supper, in the same manner as in the vacation. In the mean vacations the same system was carried on, with this difference, that the junior members of the society were those engaged. The utter-barristers presided in the place of the benchers, and " the young men that be no utter-barristers " argued before them in law French. An additional plan was adopted in the Middle Temple among the students them selves. After dinner and supper, they sat together by three in a company, and, one of the three putting forth some doubtful ques tion, they argued upon it in English, and at last the propounder of the question gave his opinion, and showed the judgment of the book from which the point was taken; "and," according to the old authority where this custom is mentioned, " this do the stu dents observe every day throughout the year, except festivall days." As indicating the attention given to the studies of the inns, and the length of the times of probation, it may be well to quote a few examples from codes of rules made for

all the societies during the reign of Queen Elizabeth, Philip and Mary, and James the First. Thus, in the time of Philip and Mary,— "that the mote cases in every of the houses of Court, for the vacation time, do not con tain above two points argumentable; and that the same cases be brought in pleading, and the puisne of the bench to recite the whole pleading, according to the ancient orders and custome; and that none of the bench shall argue above two points; and if he do, then the reader shall shew him that he breaketh the common order, and so reform it." In the reign of Elizabeth, — "that none be called to the barr, but such as be of con venient continuance, and have used the exercises of the house, as in arguing cases, putting at bolts, and keeping of the moots and exercises there three years at least, be fore they be called. . . . That in the moots both in the houses of Courts and Chan cery, pleadings be rehearsed and used, as hath been in former times past used; and thereupon to go to the case, but not without the pleading drawn, pleaded, and recited; and that no case in any inne of Chancery do contain above three points or questions at the most, and that the cases be but short." And in James I.'s time there was an order by which, after a recital that the "over early and hasty practice of utterbarristers doth make them less grounded and sufficient, whereby the law may be dis graced and the clyent prejudiced," it was provided " that, for the time to come, no utter barrister begin to practice publicly at any bar at Westminster until he hath been three years at the barr; except such utterbarristers that have been readers in some houses of Chancery." The festivities at the inns formed charac teristic parts of their systems; and some curious regulations were made in relation to these. The following are extracted from a series stated to have been made at' the Inner Ancient Legal Education in the Inns of Court. Temple in the 7 Car. I. for keeping good rule in Christmas time : — "That no play be continued within the house upon any Saturday night, or upon Christmas Eve at night, after twelve of the clock. . . . "That there be not any going abroad, out of the circuit of this house, or without any of the gates, by any lord or other gentleman, to break open any house or chamber, or to take anything, in the name of rent, or a distress. . . . "That, for preventing of quarrells within the house, and that general scandal and obloquie which the house hath heretofore incurred in time of Christmas, there shall no gentleman of this house side with any person whatsoever that shall offer to disturb the peace and quiet of the house; but shall indeavor to punish them, according to the old custome of the house; and that no strangers be suffered to come within the Hall, but such as shall appear and seem to be of good sort and fashion." The accounts of the observances at the special feasts are very curious, and are well worth reading as illustrations of the rigid and stately manners of ancient times, but they are of too great length to be quoted here. On the whole, the system anciently in use at the inns is entitled to more respect than it often receives. It was obviously suited for the special object for which it was designed, — the cultivation of a learned ac quaintance with the laws, and readiness and skill in applying them. There is something pleasing in the co-operation of the different grades of the societies in their common oc cupation. Benchers and readers, utter and inner barristers, and students appear to have


been combined in the pursuit of legal knowl edge, not merely when points arose in actual business, but as a matter of study and learn ing; and while the distinctions of rank were maintained, the abilities of the subordinate classes had scope in more independent exer cises than those of mere pupils. The innerbarristers had to argue as well as to learn; the utter-barristers, to preside and teach as well as argue. The gregarious and social character of life in the inns was likely to give a zest to the pursuits of the young law yers, and to nourish a spirit of good fellow ship among them. It is also deserving of notice that there were considerable periods of probation before the students rose to the successive ranks of the profession. A quaint notice is given in one of the old books of the external difficulties amidst which the young Templars had formerly to attain to erudition, and we conclude by quot ing it. It is said of the Middle Temple : "There be none there that be compelled to lerne, and they that are learners, for the most part have their studies and places of learning so sett that they are much troubled with the noyse of walkying and communication of them that be no learners; and in the term time they are so unquieted by clyents and servants of clyents that resort to such as are attornies and practysers, that the students may as quietly study in the open streets as in their studies. . . .

"Item, they have no place to walk in and talk and confer their learnings, but in the church; which place, all the term times, hath in it no more quietness than the pervyse of Pawles, by occasion of the confluence and concourse of such as are suters in the law."

Green Bag Vol. 1 p. 71 tailpiece.jpg
72|The Green Bag.|}}

CAUSES CELEBRES. II. LESURQUES. [1796.] IT is related that at the time Venice was at the height of its power a Venetian nobleman was struck down, in the night, by the blow of a stiletto. The crime was com mitted a few steps from the house of a baker. Suspicions were directed against this man, who was noted for his violent and quarrelsome temper. A search was made in his dwelling, and a sheath was discovered which perfectly fitted the stiletto found in the wound. This fact was conclusive to the judges; the baker was condemned to death, and was executed after undergoing the most frightful tortures. Shortly afterward the real assassin was arrested, and confessed his crime. The in nocence of the unfortunate baker was recog nized; but the innocence of Justice could be established only by a striking reparation. Every one comprehended that, — the Doge, the Council of Ten, the State Inquisitors, the Tribunal of Forty. All these great powers, composed exclusively of nobles, raised their voices acknowledging their recognition of the error, as a reparation for the involuntary injustice which had been committed. The Republic declared itself the guardian of the poor man's children; religion effaced his pre tended crime by prayers, and a perpetual mass was ordered for the repose of his soul; the judges who had had the misfortune to pronounce his sentence went into mourning; and in the great hall where criminal trials were heard were inscribed these words, — a continual warning for all future judges, — Ricordatevi del Povero Fornaio (Re member the poor baker). But now, when a doubt arises against human justice, when an accusation is made against the law and its interpreters, it is not the name of the poor baker which is invoked, it is the name of Lesurques. The whole

world believes in the innocence of this man; and yet 110 reparation or attempt at repara tion has ever been made in his case. On the 28th of April, 1796, early in the morning, some peasants walking near the Pont de Pouilly, in the Commune de Vert, saw at a place called Le Closeau, near the Fontaine- Ronde, a carriage which had ap parently been abandonded at the entrance to a little wood. This carriage they recognized as that which served to carry the mail be tween Paris and Lyons. One of the two horses was still attached to it; the other was missing. A few steps from the carriage lay the dead body of the postilion. Around this body bloody papers were scattered upon the grass. Farther along, near the Pont de Pouilly, another dead body was found; it was that of the courier of the mail. The peasants hastened to Lieursaint, the nearest town, and related their discovery. The postmaster at this place, the citizen Duclos, was already upon his steps, uneasy at not hearing from his two horses and the postilion whom he had sent with the mail to Melun the evening before. At the first words of the peasants he leaped upon a horse, which he had ready, intending to go to Melun for news of the missing ones. The place designated by the peasants as the scene of the crime was situated about three quarters of a league from Lieursaint and about a hundred steps from the road to Lyons, between the two inns of the FontaineRonde and the Commissaire-Gencral. In less than ten minutes Duclos arrived at Le Closeau, and found there the abandoned car riage, one of his two horses, and the dead bodies of the postilion Etienne Audebert and that of the Courier Excoffon. Causes Celbbres. Duclos at once sent a postilion to Melun to advise the public prosecutor of that town of the crime. This officer and the juge de paix of Melun at once repaired to the place. The spectacle which met their eyes was horrible. The body of the unfortunate pos tilion was frightfully mutilated; the head had been split by the blow of a sabre, the breast was pierced with three enormous wounds, and one hand had been severed from the arm. Around this first victim the trodden grass still preserved the marks of numerous footprints, and there were evi dences of a vigorous resistance. At a distance of a few steps an overcoat was found, gray with a blue border, which had not belonged to either the postilion or the courier. Near the coat was a broken sabre and its scabbard. The blade, stained with blood, had upon one side this inscrip tion, " L 'honnenr me conduit',' and upon the other, " Pour le salnt de ma patrie." They found also, in the grass, another scabbard and the sheath of a knife, as well as a spur with silver links tied together with coarse thread. The magistrates then went toward the Pont du Pouilly and viewed the body of Excoffon. The neck bore two deep wounds made with a sharp instrument, and upon the body were three other wounds evidently made by the same weapon. The two bodies were rigid, and the crime must have been committed many hours be fore, without doubt on the previous evening about nine or half-past, after the relay at Lieursaint. Under the Pont du Pouilly they found the boots of the postilion, one of which was filled with blood. Everything indicated that these assassina tions had been committed for the purpose of robbery. Among the letters and papers scattered upon the ground were found the list of Excoffon, and on it the imprint of a bloody finger marked certain places, show ing that one of the murderers had consulted this list of the packages carried by the courier, while the others probably sought out and


opened the desired ones. The list showed that the courier had in his care a large amount of money and drafts. An inquiry was at once commenced which developed two evident facts : first, that four men on horseback had been seen on the road from Paris to Lieursaint on the afternoon of April 27, riding back and forth, and that they reappeared in the evening accompanied by another companion. The second important fact was the disappearance of an individual who had been observed by several persons riding on the carriage beside the courier. It was very probable that this traveller was a fifth assassin. The overcoat abandoned at the place of the crime answered the de scription of the one said to have been worn by this person as testified to by several witnesses who saw him. For a time the investigation was without important result, but at length the authorities got upon the right track. It was ascertained that, on the morning of the discovery of the crime, four horses covered with sweat had been taken by a certain Etienne to the house of an innkeeper named Aubry in the Rue des Fosses-Saint-Germain-l'Auxerrois; at about seven o'clock Etienne returned for them, accompanied by one of his comrades named Bernard, and took them to the house of Citizen Muiron, where the two men re mained until evening and then departed. Following up this trail, it was presently found that this Etienne was named Courriol; that he had lived up to April 27 in the Rue du Petit-Reposoir; that he slept there on the night of the 26th; that he had not been seen at this house since the crime, and that he lived with a woman named Madelaine Breban, who passed as his wife. The authorities succeeded in getting upon the track of Courriol. From the Rue du PetitReposoir, he went with his mistress to lodge at the house of a man named Richard, No. 27 Rue de la Bucherie; both remained there until the 6th of May, when, having procured a passport for Troyes, they departed. The man who furnished the carriage was a Jew 74

The Green 1 Bag.

of a doubtful reputation, named David Ber nard. The two were accompanied by a third individual named Bruer, who went with them as far as Bondy. Just beyond this place the two changed their route, and instead of going to Troyes returned to Chateau-Thierry, to the house of one Golier, an employe in the Department of War. An officer was at once sent to ChateauThierry, and there arrested Courriol and his mistress. There was found in their posses sion 1,528 livres in silver coin, 1,68olivres in gold coin, 1,142,200 livres in assignats, 42,025 livres in checks, 7,150 livres in drafts, and a large quantity of gold and silver jewelry, absolutely new. It was evident that they had secured one of the five assassins, for the value of the recovered property formed just one fifth of the amount that had been stolen. Where were the other four? They sus pected Golier; they suspected still more strongly a man named Guesno, whom they found staying at the house of Golier, and who had arrived that very day from Paris; who knew Courriol, and who had lodged with him at the house of Richard in Paris. Guesno was, as was Golier, connected with the military. The central bureau of police intrusted the investigation of the affair in Paris to the juge dc paix of the section of Pont-Neuf, the Citizen Daubanton, an active, severe, and perspicacious man. This officer hastened to summon witnesses and to interrogate the prisoners. It became evident at the outset that Guesno had nothing to do with the matter. He ex plained his presence at the house of Richard and at the house of Golier in a perfectly natural manner, and the Citizen Daubanton dismissed him, telling him that his papers would be returned to him on the next day. The next day Guesno went to the central bureau to obtain his papers. On the way he met an old friend whom he had not seen for some time, the Citizen Lesurques. Full of his tribulations of the preceding day, Guesno related them on the way to Lesurques. The

two friends arrived at the central bureau before Guesno had completed his recital. "Come with me to the office of the Citizen Daubanton," said Guesno, " and I will finish my story." Lesurques had no time to spare, but Guesno insisted, saying that he would only delay him a few moments, — just long enough to get his papers. Lesurques allowed himself to be persuaded, and the two friends entered. In the room which served as an ante chamber to the office of the juge de paix, they found about twenty persons, whom they recognized by their costumes to be peasants from the environs of Paris. They were the witnesses from Lieursaint and Montgeron whom the judge was to hear that day. Guesno and Lesurques seated themselves upon a bench; Guesno while awaiting his turn went on with his interrupted recital. At the first words which he spoke concern ing the assassination and the robbery of the Courier of Lyons, two of the witnesses turned their heads towards the new-comers, let escape a gesture of affright, and then whispered together without taking their eyes off of Lesurques and Guesno. These two witnesses were two servants from Montgeron, women named Santon and Grosse-Tete. The moment arrived for these two women to enter the cabinet of the magistrate; a few moments afterwards an officer of police named Hendon came out of the cabinet, looked attentively at the two friends, and approaching Guesno informed him that the judge desired to see him and the friend who accompanied him. Lesurques was greatly astonished, but the two at once entered the private office. The magistrate made them sit down in a window facing the two women, and addressed to them, in a severe tone, some unimportant questions. The two women regarded them with attention. The judge then told the two men to return to the antechamber. They were unable to comprehend this strange proceeding. Alone with the two women, Daubanton Causes Celebres. said to them, " Well, do you still think that these two men are two of the assassins of Lieursaint? " "Yes, Citizen Judge," replied they; " they are two of the four cavaliers who dined at the house of the Citizen Everard.and took coffee at the house of the Citizeness Chatelain." "Be careful what you say," replied the magistrate. " One of these two men has been suspected, and nothing obliged him, if he were guilty, to come here. The other, the blonde, has never appeared before in the case, and his presence here is still more in explicable. Criminals ordinarily do not come to the bureau of police after committing a crime." The two women persisted; they recog nized both of them, but were most certain as to the blonde, who was Lesurques. The Citizen Daubanton made Guesno and Lesurques re-enter, and this time confronted them with their accusers. Both were sur prised at this confrontation which neither of them could comprehend. When they had again retired, the judge once more recom mended the women to reflect and think of the terrible consequences if they were mistaken; they still insisted. The magistrate, not wish ing to act hastily, obtained from the gen darmes of Lieur-saint and Melun a description of the men who had been seen. Two of these descriptions seemed to correspond with the appearance of Guesno and Lesurques. The last especially answered the description of the large blonde of whom all the witnesses spoke. The magistrate requested Lesurques to exhibit his papers. Lesurques, although established at Paris for a year, had neither papers nor carte de sftretc"; in his pocketbook was found a carle de sfircte" which bore the name of his cousin, and another one in blank; this raised a strong presumption against the man. Daubanton did not hesitate, but at once arrested both men. The crime at Lieursaint produced in Paris a profound sensation. The numerous bri


gands who at that time infested the high ways of France rarely had the audacity to attempt their crimes at the very gates of the capital. The Citizen Daubanton entered upon the examination of this affair with the most ardent zeal. In regard to Lesurques and Guesno, however, he acted with the greatest circumspection. Further facts developed by the investigation seemed to throw grave doubts upon the probability of their guilt. Joseph Lesurques was born at Douai, of a very honorable family. While he was yet a mere youth he enlisted in a regiment of Auvergne, and served with great faithfulness and obtained the rank of sergeant. He left the service in 1789. Active, intelligent, and ambitious, he found in the great disorders consequent upon the revolution an oppor tunity to make his fortune. At first em ployed in the district bureau in his natal town, he erelong became its head. He had made large sums in fortunate specu lations, and at the time of his arrest he enjoyed an income of about 10,000 livres, — a fortune for those times. Rich, the husband of a devoted wife, the father of three children, a great student of art, he decided to establish himself in Paris, where he could enjoy a life in accordance with his tastes, and could educate his children as he desired. He left Douai early in the year I79SLesurques referred to all his friends, wellknown and honorable men, who gave a good account of his reputation. " The 27th of April," said Lesurques, " I passed the fore noon until two o'clock at the house of the Citi zen Legrand; from there I went to the Rue Montorgueil. In the evening, at six o'clock, I went to walk upon the boulevards with the Citizen Ledru. I met my friend Guesno, and we then entered a cafe at the corner of the Comedie-Italienne, where we each drank a glass of wine. The citizens Hilaire, Ledru, and Legrand confirmed these statements. On his part, Guesno accounted satisfac 76|The Green Bag.|}}

torily for his whereabouts on the 27th, and furnished what appeared to the judge a per feet alibi. But how was it possible to reconcile the apparent innocence of Lesurques and Gucsno with the identification, so precise and per sistent, by the women Santon and GrosseTete? How could it be that Lesurques was not guilty, when to the evidence of these two women was added that of many others, among whom were Champeaux, an innkeeper at Licursaint, and his wife, who declared that he was certainly the large blonde, who having broken the links of his spur had repaired them at their house with a piece of coarse white thread? As for Courriol, everything proved his guilt. He could give no satisfactory account of his employment or of the property found in his possession. He denied everything until his mistress, Madelaine Breban, con founded him by her confessions. This girl, whom Daubanton told that perfect frankness could alone save her from an accusation of complicity in the crime, declared that on the 27th of April Courriol departed early in the morning. He took some clothes in a valise and his pistols, saying as he left her that he was going into the country. The next day, as he did not return, she became alarmed, and was about to seek Bernard to obtain news of him, when he, Bernard, came to tell her that Courriol was waiting for her at the Hdtel de la Paix. Courriol wished her to bring him a complete change of cloth ing. She made a package of the desired articles, and hastened to the H6tel de la Paix. There, in the room of a man named Dubosc, she found Courriol, who had on nothing but a shirt. The next day Courriol changed his quarters; ten days afterward they started for Troyes. This girl added that she had seen Bruer and Richard many times at Courriol's apartments; that she had seen Guesno only once, and that she had never seen Lesurques. She thought she recognized the sabre found at the place of the assassination as belonging to Courriol. She gave the

names of the persons with whom Courriol was most intimate; they were Dubosc, Durochat, Roussy, and Vidal. Matters were in this condition when the case was taken from Daubanton, and on the 22d of May was referred to the criminal tribunal of Melun. This was a most unfortunate occurrence for Lesurques. The impression made upon the magistrate at Paris by the attitude of the prisoners Lesurques and Guesno, so different from that of their alleged accomplices, did not exist in the mind of the magistrate at Melun. Nearer the scene of the crime, and more desirous to make a terrible example, he relied upon the evidence of the local wit nesses, without troubling himself with the evidence offered by the defendants. There had been five assassins at Le Closeau; they presented him with five prisoners (Bernard and Bruer had been also arrested for com plicity in the affair); these were then the assassins. That is all that this magistrate of Melun took into consideration. The trial was about to commence before the criminal tribunal of Melun, when the accused, availing themselves of a right ac corded by law, demanded to be taken before the criminal tribunal of Paris. The president of this tribunal was M. Jerome Gohier. This judge from the very outset saw in all the accused only guilty criminals. The act of accusation presented at Melun left him no doubt as to Lesurques, and the accusing declarations of the wit nesses from Lieursaint and Montgeron an nulled in his mind all the evidence obtained in Douai and Paris tending to prove an alibi. The witnesses upon this point num bered fifteen, and were positive in their statements. But the witnesses who testi fied to the presence of Lesurques at Lieur saint and Montgeron showed the same certainty and persistence. The witnesses for Lesurques were treated with great harshness and severity by the judge, and some of them were even terrified into modifying their evidence, and stating Causes Celebres. that they might have been mistaken as to the date on which they saw him. Without going into the details of the evi dence, we may sum up by saying that Lesurques was positively identified by seven witnesses, and believed by three others to have been the man whom they saw at Lieursaint and Montgeron. The witnesses to his presence in Paris at the time the crime was committed numbered, as we have said, fifteen, all of them persons of the highest respectability. In spite of the evident partiality of the magistrate the advocate of Lesurques still hoped; he was certain of the innocence of his client. Before the commencement of the trial the defender of Courriol said to him and to the advocate of Guesno, " I do not know about Courriol; but you may defend your clients with confidence, for they are both innocent." The charge of President Gohier to the jury was a one-sided discussion of the case, a new argument for the prosecution. The jury then retired. While they were deliberating an incident occurred in the court-room which might have enlightened justice if justice had wished to be enlightened. A woman whose presence at this trial would have been considered indispensable by a magistrate worthy to bear the name, Madelaine Breban, demanded to be allowed to make to the president of the tribunal a very important revelation. President Gohier ordered her to approach. She then said to him, that of the accused present one alone was guilty, and he was her lover, Courriol; that Guesno and Lesurques particularly were the victims to their resemblance to two of the murderers; that Guesno resembled a man named Vidal and Lesurques one named Dubosc, and that this last resemblance had been greatly increased by a blond wig that Dubosc wore on the day of the crime. "The trial is ended," replied M. Gohier; "it is too late." It is too late! The fatal excuse for all the


faults which we commit. It is too late to be just! It is too late to save an innocent man from death and justice from shame! The trial is ended! Well! what prevents your reopening it if the light at last has pene trated your mind? M. Gohier preferred not to see the light; it was too late! At eight o'clock in the evening the jury returned and rendered a verdict of guilty against Lesurques, Bernard, and Courriol. Guesno was acquitted, and two others, Bruer and Richard, found guilty of knowledge of the crime and of having received a portion of the stolen property, but not guilty of par ticipation in the murder. Courriol, Bernard, and Lesurques were then sentenced to death. When Lesurques heard his sentence he grew frightfully pale, raised his eyes to heaven, and moved his hands convulsively; then, recovering from his terror and surprise, he rose and said in a clear, ringing voice : — "Undoubtedly the crime of which I am accused is horrible and merits the punish ment of death; but if it is frightful to assas sinate on the highway it is not less so to abuse the law to strike down an innocent man. A moment will come when my inno cence will be recognized, and then my blood will recoil upon the heads of the jury who have so readily condemned and the judge who has influenced them." Jurors, judge, and all in the court shuddered on hearing these words. What were their feelings, then, when they saw rise the ad mitted guilty one, Courriol, and heard him cry : " Lesurques and Bernard are innocent. Bernard did nothing but furnish the horses; Lesurques took no part in the crime." The condemned were taken to the conciergerie, Courriol persisting in declaring the innocence of Lesurques. The 2 1st of August Courriol begged the magistrates of the central bureau to come to him, as he desired to make further state ments and to tell the whole truth. Upon being heard, he stated in addition to what he had previously said : " The true guilty ones 78|The Green Bag.|}}

are named Dubosc, Vidal, Durochat, and Roussy. Durochat, under the name of Laborde, took a place in the mail carriage by the side of the courier. The others de parted from Paris on the 27th of April on horseback. He, Courriol, joined them an hour after their departure at Charenton. They dined and took coffee at Montgeron. The next morning the five returned to Paris about five o'clock. Courriol took the horses to the house of Aubrey. Roussy and Duro chat planned the enterprise. The sabre and spur belonged to Dubosc, who went back to get his sabre at Lieursaint; the other sabre found in the road belonged to Roussy. It was Dubosc and Vidal who were walking in Lieursaint on foot." This trial had absorbed public attention. A great number of persons believed in the innocence of Lesurques. It was known that Courriol persisted in his protestations. A petition was made to the directory, and that body examined with the greatest care all the evidence as developed at the trial, and all the arguments brought to bear against the judgment. The result of the examina tion was a determination to submit the matter to the decision of the council of five hundred. This council finally made a report. "The council cannot exercise a judicial power; it does not wish to exercise it. It is not our province to determine whether Le surques is guilty or innocent. He has been judged and properly condemned." The council refused to interfere, and the last hope of Lesurques was gone. When there was no longer hope, Lesurques courageously prepared for death. He bid his wife farewell, and embraced for the last time his three children. The evening before the fatal day he cut his own hair, and took the locks and addressed them to his wife and children. To his wife he wrote this letter : — "When you read this I shall have ceased to exist; the cruel knife will have cut the thread of that life which I have consecrated to you with so

much joy. But such is fate; one cannot avoid it. I am about to be judicially murdered. Ah! May I submit to my fate with the courage worthy of a true man. ... I send you some locks of my hair; preserve them, and when my children are older give them to them. They are all I have to leave them. I bid you an eternal farewell. My last thought will be of you and my unfortunate children." This letter was addressed to the Citizenness Widow Lesurques. To his friends he wrote : — "The truth has not made itself known. I perish a victim to error. May I hope that you will al ways preserve for my wife and my children the friendship you have shown for me, and that you will aid them under all circumstances? Receive my last farewell." Before leaving the conciergerie he wrote to Dubosc, and entreated his judges to insert the letter in their records : — "You in whose place I am about to die, be satisfied with the sacrifice of my life. If you are ever made accountable to human justice, remem ber my three children overwhelmed with shame, their mother in despair, and do not prolong the misfortunes caused by this sad resemblance." The day for the execution of the sentence arrived. It was Oct. 30, 1796. Lesurques asked to be dressed in white, an external sign of his innocence. In the court of the prison he met his two unhappy companions who were to die with him, Courriol and Bernard. Bernard, more dead than alive, hardly realized the situation; they were obliged to place him in the cart as though he were a dead body. Courriol preserved all his courage. Scarcely had Lesurques mounted the cart by his side, than pointing him out to the crowd Courriol cried, " I am guilty, but Le surques is innocent." All the way, even to the very foot of the scaffold, he did not cease repeating, "I am guilty, but Lesurques is innocent." A few moments later Lesurques mounted the scaffold with a firm step, pardoned for the last time his judges, and as M. Salques The Law Courts in Edinburgh . eloquently says, "presented himself before the only Judge in whom error is impossible. Four months had scarcely elapsed since the execution of Lesurques, when Durochat was arrested for a robbery recently com mitted. This man corroborated the state ments of Courriol respecting Lesurques in every particular. At last a trace of Dubosc was found, and he was arrested upon some other charge. Confronted with the witnesses who had so positively identified Lesurques, they were as tounded. They extricated themselves from their disagreeable dilemma only by saying that there might have been two blondes


among the men they saw, and would not acknowledge that they had been mistaken as to Lesurques. Dubosc was, however, brought to trial upon the charge of being concerned in the assassination of the courier of Lyons, and was convicted and executed. Finally, Roussy was arrested, tried, and convicted. Before his death he declared that Lesurques was innocent, and that he had never known the man. The heirs of Lesurques struggled for years to obtain a restitution of the property of which they had been cruelly deprived by order of the court, but with no success.

THE LAW COURTS IN EDINBURGH. From Robert Louis Stevenson's " Picturesque Notes of Edinburgh." ONE of the pious in the seventeenth cen tury going to pass his trials (examina tions, as we now say) for the Scottish Bar, beheld the Parliament Close open, and had a vision of the mouth of Hell. This — and small wonder! — was the means of his conversion. Nor was the vision unsuitable to the locality; for after an hospital, what uglier place is there in civilization than a court of law? Hither come envy, malice, and all uncharitableness to wrestle it out in public tourney; crimes, broken fortunes, severed households, the knave and his victim, gravitate to that low building with the arcade. To how many has not St. Giles's bell told the first hour after ruin? I think I see them pause to count the strokes, and wander on again into the moving High Street, stunned and sick at heart. A pair of swing-doors gives admittance to a hall with a carved roof, hung with legal por traits, adorned with legal statuary, lighted by windows of painted glass, and warmed by three vast fires. This is the salle dts pas per-

das of the Scottish Bar. Here, by a ferocious custom, idle youths must promenade from ten till two. From end to end, singly or in pairs or trios, the gowns and wigs go back and forward. Through a hum of talk and foot falls, the piping tones of a Macer announce a fresh cause and call upon the names of those concerned. Intelligent men have been walk ing here daily for ten or twenty years without a rag of business or a shilling of reward. In process of time, they may perhaps be made the Sheriff-Substitute and Fountain of Jus tice at Lerwick or Tobermory. There is nothing required, you would say, but a little patience and a taste for exercise and bad air. To breathe dust and bombazine, to feed the mind on cackling gossip, to hear three parts of a case and drink a glass of sherry, to long with indescribable longings for the hour when a man may slip out of his travesty and devote himself to golf for the rest of the afternoon, and to do this day by day and year after year, may seem so small a thing to the in experienced! But those who have made » 80|The Green Bag.|}}

the experiment are of a different way of thinking, and count it the most arduous form of idleness. More swing-doors open into pigeon-holes where Judges of the First Appeal sit singly, and halls of audience where the Supreme Lords sit by three or four. Here you may see Scott's place within the bar, where he wrote many a page of Waverley Novels to the drone of judicial proceeding. You will hear a good deal of shrewdness, and, as their Lordships do not altogether disdain pleas antry, a fair proportion of dry fun. The broadest of broad Scotch is now banished from the bench; but the courts still retain a certain national flavor. We have a solemn enjoyable way of lingering on a case. We treat law as a fine art, and relish and digest a good distinction. There is no hurry : point after point must be rigidly examined and reduced to principle; judge after judge must utter forth his obiter dicta to delighted brethren. Besides the courts, there are installed un der the same roof no less than three libraries. ... As the Parliament House is built upon a

slope, although it presents only one story to the north, it measures half a dozen at least upon the south, and range after range of vaults extend below the libraries. You de scend one stone stair after another, and wan der, by the flicker of a match, in a labyrinth of stone cellars. Now you pass below the outer hall, and hear overhead, brisk but ghostly, the interminable pattering of legal feet. Now you come upon a strong door with a wicket; on the other side are the cells of the police-office, and the trap-stair that gives admittance to the dock in the justiciary court. Many a foot that has gone up there lightly enough has been dead heavy in the descent. Many a man's life has been argued away from him during long hours in the court above. ... A little farther and you strike upon a room, not empty like the rest, but crowded with productions from bygone criminal cases : a grim lumber : lethal weap ons; poisoned organs in a jar; a door with a shot-hole through the panel, behind which a man fell dead. I cannot fancy why they should preserve them, unless it were against the Judgment Day.

Green Bag Vol. 1 p. 80 tailpiece.jpg
  1. mn

Published Monthly, at 53.00 per annum.

Bag. Single numbers, 35 cents.

Communications in regard to the contents of the Magazine should be addressed to the Editor, Horace W. Fuller, isi Beacon Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities or curiosities, facetia, anecdotes, etc. THE GREEN BAG T^HE new field upon which we have entered

  • ■ with " The Green Bag " seems to be an

attractive one to the legal fraternity, judging from the communications which have poured in upon us from prominent members of the profession. A well-known lawyer in New York writes : " I notice that you are to issue a magazine for the edification of the profession. Such a periodical will occupy a new and waiting field. Send it to me." From Pennsylvania, another prominent member of the bar, writes : " I am struck with the prospectus of ' The Green Bag.' One gets a bit of juice occasionally from American Law Jour nals, but the periodicals usually coming to the office are little more interesting than the average digest." And another correspondent says : " We have so many so-called useful things thrust upon our no tice in the way of voluminous reports of every thing, large and minute, that it is a relief to run across something that does not profess to be of any particular use." From Ohio an eminent judge writes : " Useless law books I have many, — useless because they are not entertaining. I see that ' The Green Bag ' is not only useless but enter taining. Them 's the feller I want." We might go on quoting in the same vein; but the extracts given show that the bar desires some thing more than the flood of digests poured upon them from month to month, and turns with a feel ing of relief to lighter and more entertaining legal literature. " All work and no play makes Jack a dull boy," is as applicable to the wearied mind as to the exhausted body. We are glad to find our ideas in making this new departure so quickly and fully confirmed by a host of our legal brethren.

The writer of the sketch of Chief-Justice Fuller, which appeared in our January number, desires us to make the following correction in re gard to Daniel Fuller. In the paragraph con cerning him, in place of the words, " He mar ried Esther Fisher," it should read : " His father, Thomas Fuller second, married Esther Fisher, in 1668, who was the daughter of the proscribed patriot, Daniel Fisher, of Dedham, etc., . . . and sister of the bold Captain Daniel Fisher, who ' hated the tyrant,' Sir Edmund Andros," etc.

We trust our readers will not overlook the note at the head of our editorial department, and will send to the editor contributions for use in our columns. Almost every lawyer has some one subject in which he is particularly interested and upon which he would be glad to express his views. " The Green Bag " affords an excellent medium for com munication with his legal brethren. Many a good joke or anecdote is lost which might have been preserved, if jotted down at once upon the hear ing. The next good story that you hear, make a note of it, and send it to " The Green Bag."

LEGAL ANTIQUITIES. Courts of Requests (known also as Courts of Conscience) were first instituted in London by Henry VIII., and similar local tribunals were after ward established by Act of Parliament in other parts of the Kingdom; but they have all been super seded, long since, by the County Courts. The jurisdiction of these courts was originally limited to questions of debt or damage under ^os. but was afterward extended to questions under ^5. The design was to furnish a cheap and simple method of settling trivial cases; and the trials were con ducted before commissioners who appear to have been bound by no technical rules of law, but set tled the disputes submitted to them according to |The Green Bag.|}}

their own best judgment. These commissioners were men of ability and good standing in the community, and they received no pay for their services. The costs of suit were merely nominal, thus enabling the poorest as well as the richest subject to obtain justice. We give the table of fees, which was kept hung up in open court : — For every summons, to the clerks, 3</. For the service, to the beadle, id. For calling plaintiff or defendant, clerks 2d, bea dle id. Nonsuit, to the clerks, is. For paying money into court, to the clerks, 6d. For every hearing, to the clerks, 3d. For a copy of every ex parte order, and of every judgment of nonsuit to be served, to the clerks, d. For the service of every such order, to the bea dle, 2d. For every execution, clerks, 8d. To the beadle, for levying the same, is. For acknowledging satisfaction in full, clerks, 2d. For every search, to the clerks, 2d. No lawyer's services were required in these courts; the commissioners simply questioning the disputants and then rendering judgment. Hutton, in his interesting work upon the subject, cites a number of cases which came before the Birming ham Court. . We quote one, as showing the extreme simplicity which characterized the proceedings : — Court. What is your demand? Plaintiff. Eleven shillings. Court. Is it just? Defendant. No; I do not owe him a farthing. Court. How does the debt arise? Plff. There is a pump in the neighborhood, for the joint use of the tenants. It has lately been repaired; each tenant pays a proportionate sum, according to his rent; all have paid, except the defendant. Court (to the defendant). Was the pump out of repair? Deft. Yes. Court. Was any part of the expense unnecessary? Deft. I suppose not. Court. What objection can you make against paying your quota? Deft. I have never paid anything, neither have I a right to pay. I gave no orders to have it done. I never promised payment, neither has any man a right to lay out my money. Court. Should you think it fair, if all the neigh bors went free, and the whole expense was saddled upon you? Deft. No.

Court. Then what reason is there that you should go free, and your neighbors bear the whole? Had they been all of your mind, they would have been deprived of one of the greatest blessings we know; or rather, like you, would wish to enjoy it at the expense of another. If you have never paid to former repairs, they have granted you a favor you do not deserve. As they have all an equal right to the pump, they have an equal right to pay. If you gave no orders, it was not because orders were not necessary, or the water not wanted; but that another, more spirited than yourself, might step forward and furnish you with a pretext. If you had promised payment, you would have stood in a more honorable light. He lays out his money himself who pays for a necessary article, which cannot be had without; but if you take that article, at the expense of your neighbor, you do him an injustice; so shall we, if we do not order payment. In the Birmingham Court the number of com missioners was seventy-two. Once every two years ten of their number were stricken from the list by ballot, and ten others chosen out of the body of the inhabitants. Six were summoned alternately by the beadle to attend bench every month, but their attendance was wholly optional. Any three formed a quorum.

A Lucid Proclamation. — The following is a proclamation made at the Market Cross of Inverary, Scotland, less than a hundred years ago : — "Ta hoy! Te tither a-hoy! Ta hoy three times! 1! an' ta hoy — whist! By command of his Majesty King George, and her Grace te Duke of Argyll: If anybody is found fishing about te loch, or below te loch, afore te loch, or ahint te loch, in te loch, or on te loch, aroun te loch, or about te loch, she 's to be persecuted wi' three persecutions : first, she 's to be burnt; syne, she 's to be drownt; an' then to be hangt. — An' if ever she comes back, she 's to be persecutit wi' a far waur death. God save te King an' her Grace te Duke o' Argyll." — Irish Law Times.

In the reign of Charles II., Scroggs (that infa mous justice of the King's Bench) and all other judges declared, under their hands, " that to print or publish any new book or pamphlet of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be pro ceeded against by law for an illegal thing." — limb's Legal Anecdotes. Editorial Department. FACETIiE. WHY THEY DO IT. A barrister was Tupp, Q. C, Of Lincoln's Inn a member : He used to practise equity, As near as I remember. From judge to clerks in common law, All ranks of the profession Combined to sing his praises for The courts' entire session. To show the high esteem of Tupp, I only need to mention, He 'd but to hold his finger up To gain the court's attention. Although I grieve a word to say Of lights of the profession, He fell into a painful way Of digital expression. Instead of laying down the law, Avoiding all commotion, He pointed with his fingers for Additional emotion. He pointed at the walls and floor, He pointed at the ceiling; He frightened the solicitor, And left his junior reeling. He emphasized the least remarks With signs and pokes and fudges, That woke the anger of the clerk, And then awoke the judges'! The chancellor the time perceived Had come for remonstrations : "My learned friend, we 're always grieved To interrupt orations; "But kindly keep your arms in hand, Unless the court permit you. We can't informal motions stand — My goodness! I '11 commit you! " His brother said, " I can't endorse This very stringent ruling; But this I say, and will enforce, This court will stand no fooling." Our learned friend was greatly pained. He answered : " As your Lordship Has not that graceful art attained, — Imaginary swordship, —


I 'II waive my right when I am wroth To wave my arms like rockets, And I '11 address the court with both My hands within my pockets." Envoi. I merely state a platitude, — When once he set the fashion, This academic attitude Became the legal passion. Pump Court. "What do you understand by a ' mortgagee '? " asked the examiner of a youthful aspirant for legal honors. " Is n't it the feminine for 'mortgagor '? " replied the youth, diffidently.

The conspiracy case against the Transcontinental Transportation Company that has been dragging its weary length through the criminal court at Chicago, was enlivened by a momentary gleam of sunshine when Robert Lincoln was called to the stand. "Were you in Chicago in October, 1887?" asked the lawyer. The son of his father pulled his beard, and replied : " Well, really I can't say; that 's the month in which I go fishing, as a rule." This startling admission acted like a bomb in arousing the court. "Sorry, but we can't hear fish stories now," re plied the lawyer, hoping thereby to get on the good side of the judge; but he was mistaken. "I '11 hear most anything," said the judge, "that will enliven this dry and sleepy case. Go ahead with your fish story! " — Boston Record.

Law Professor. What constitutes burglary? Student. There must be a breaking. Professor. Then, if a man enters your door and takes a tendollar bill from your vest-pocket in the hall, would that be burglary? Student. Yes, sir; because that would break me. A long-winded lawyer lately defended a crimi nal unsuccessfully, and during the trial the judge received the following note : " The prisoner hum bly prays that the time occupied by the plea of the counsel for the defence be counted in his sentence." 84|The Green Bag.|}}

Justice Bramwell, when attempting to be clear, was at times rather perplexing. " My good woman," he would say to a witness, " you must give an answer, in the fewest possible words of which you are capable, to the plain and simple question whether, when you were crossing the street with the baby on your arm, and the omni bus was coming down on the right side and the cab on the left side, and the brougham was trying to pass the omnibus, you saw the plaintiff between the brougham and the cab, or between the omni bus and the cab, or whether and when you saw him at all, and whether or not near the brougham, cab, and omnibus, or either, or any two, and which of them respectively — or how was it? " "Gentlemen of the jury," said counsel, in an agricultural case, " there were thirty-six hogs in that lot, — thirty-six. I want you to remember that number, — thirty-six hogs, — just three times the number that there are in the jury-box." — Albany Law Journal. Speaking of hogs, the following story is recalled to our mind : — A young lawyer, employed to defend a culprit charged with stealing a pig, resolved to convince the court that he was born to shine. Accordingly he proceeded to deliver the following brilliant ex ordium : " May it please the court and gentlemen of the jury, — While Europe is bathed in blood; while classic Greece is struggling for her rights and liberties, and trampling the unhallowed altars of the bearded infidels to dust; while America shines forth the brightest orb in the political sky, — I, with due diffidence, rise to defend the cause of this humble hog-thief." This reminds us of a story told of a learned counsellor who, in a suit for slander, treated his hearers to the following flight of genius : " Slander, gentlemen, like a boa-constrictor of gigantic size and immeasurable proportions, wraps the coils of its unwieldy body about its unfortunate victim, and heedless of the shrieks of agony that come from the uttermost depths of its victim's soul, — loud and reverberating as the night-thunder that rolls in the heavens, — it finally breaks its unlucky neck upon the iron wheel of public opinion, forcing him first to desperation, then to madness, and finally crushing him in the hideous jaws of mortal death."

"Pray, my lord," said a gentleman to a late respected and rather whimsical judge, "what is the difference between law and equity courts?" "Very little in the end," replied his lordship; "they differ only as far as time is concerned. At common law you are done for at once; in equity you are not so easily disposed of. The former is a bullet, which is instantaneously and charmingly effective; the latter is an angler's hook, which plays with its victim before it kills it. The one is prussic acid; the other, laudanum."

At a legal investigation of a liquor seizure, the judge asked an unwilling witness, " What was in the barrel that you had? " The reply was : " Well, your Honor, it was marked ' whiskey ' on one end of the barrel and ' Pat Duffy ' on the other; so I cannot say whether it was whiskey or Pat Duffy was in the barrel, being as I am on my. oath."

In one of the earliest trials before a colored jury in Texas, the twelve gentlemen were told by the judge to retire and " find the verdict." They went into the jury-room, whence the opening and shutting of doors, and other sounds of unusual commotion were heard. At last the jury came back into court, when the foreman announced : "We hab looked eberywhar, Jedge. for dat verdict, — in de drawers and behind de doors; but it ain't nowhar in dat blessed room."

The late Judge Keogh was "a fellow of infinite jest." When he first went on the circuit as Judge of Assizes he was entertained in state by his bar, and the evening was passed in dignified decorum, as grave compliments were exchanged on both sides. The " counsellors " present were made to feel that their old comrade had become a judge. At ten o'clock, to their amazement, he rose, thanked them for their hospitality, made a solemn bow, and retired, leaving them in blank consterna tion at the complete change. In five minutes a face beaming with fun appeared at the door. "Boys, the Judge has retired for the night, but Billy Keogh won't go home until morning." A roar of laughter and applause greeted the return, and the mirth was fast and furious. — Irish Law Times. Editorial Department.


Apropos of amateur advocacy, a good story is told of one of our chancery judges. A plaintiff appeared in person before him in a case arising out of a bill of sale, which included, besides some other personal chattels, a quantity of household furniture. After addressing the court at inordinate length upon the first class of articles, the plaintiff went on to say, " And now, my Lord, I will ad dress myself to the furniture." " You have been doing that for a long time past," replied the jaded judge.

dire. She could make nothing of the phrases, '• nature of an oath," " religious responsibility," and so forth, used by counsel; and at last Alderson said, '• I will put it to the witness very simply; my little girl, if you tell a lie here, do you know where you will go hereafter?" No, sir," replied the child. " No more do I! " muttered the Baron, aside; and then turning to the witness, " I am afraid you must stand down."

This reminds us of an anecdote told at the ex pense of Sergeant Prime, who was a good-natured but rather dull man, and, as an advocate, weari some beyond comparison. A counsel once get ting up to reply to one of his lengthy orations, which had made the jury very drowsy, began : "Gentlemen, after the long speech of the learned Sergeant — " " Sir, I beg your pardon," interrupted Mr. Justice Nares; " you might say. after the long soliloquy; for my brother Prime lias been talking an hour to himself."


The Chicago Legal Neivs. in reviewing Beach on Wills, puts forth the following curious idea : " The usefulness of many law works is injured by an undiscriminating over-citation of authorities." The reviewer probably meant that the usefulness of many law works is injured by an indiscriminate citation of authorities. There can be no such thing as an over-citation of authorities in a legal treatise, provided the authorities are in point. I The citation of an additional case in support of While we are on this subject, here is another I a proposition from the court of last resort of the smallest jurisdiction, like Delaware or Rhode Island, story which will bear repeating : — A lawyer having wearied the court by a long will afford assistance to lawyers in that jurisdiction. The time has gone by when lawyers will accept as and dull argument, the judge suggested the ex law, except on the most obvious propositions, the pediency of his bringing it to a close. "I shall speak as long as I please," was the statements of authors not well fortified by the citation of authorities. angry retort. "You have already spoken longer than you please," answered the judge. Exactly how to sentence a criminal to death under the new law is at present puzzling the crimi nal court judges. The following form possesses "Do you mean to challenge the jury?" whis the value of being terse, scientific, and to the pered a lawyer to his Irish client. " Yis, be jab bers! If they don't acquit me, I mean to challenge point : " I therefore sentence you to be taken to ivery spalpeen of them. I want ye to give 'em all Sing Sing Prison, there to remain confined until the — day of , 188 —, between the hours a hint of it, too." of — and —, a. m., where you will be taken to a An Indiana colored lawyer, in trying to get his cell specially designed for that purpose, be forcibly client out of custody, exclaimed : " Da is a law seated in a properly insulated chair, with one se dat 's called ' habhis carcass,' an' I 'ze gwine to maphore placed upon the junction of your frontal hab de carcass ob dat client ob mine, dea' or and parietal suturas and the other just over your medulla oblongata, and then and there made con alive! " ductor for an alternating current of 1,800 volts' in The following anecdote of Baron Alderson is, tensity from a dynamo constructed for that specific we think, not generally known. It must be pre purpose, said current to pass through the ganglia mised that his lordship was suspected of being a and vasomotor centres of your cerebral tissue until bit of a freethinker. A child of tender years you are dead, dead, dead : and may the Lord have was once being examined before him on the voir mercy on what is left of you! " — New i ork World. 12 86|The Green Bag.|}}

Here is a bill which was introduced into the Nevada Legislature the other day to promote the pleasure of the people in places of public amuse ment : — Section I. It shall be unlawful for any spectator in any place of amusement to wear a covering for the head which shall reach more than three inches above the crown of the head, and any person wearing such a covering for the head shall be guilty of a misde meanor, and shall be fined in a sum of not less than $5 nor more than $10, or imprisoned in the countyjail not less than two days or more than five days : provided that this act shall not apply to women over thirty-five years of age. Section 2. The act shall take effect on and after the 25th day of February, a. d. 1889. We commend this bill to the attention of our own legislators, though we doubt the expediency of the proviso relating to women over thirty-five years of age. They are frequently as vain as some of their younger sisters. Let it include the entire sex or none at all. "Sir" William Conrad Reeves, Chief-Justice of Barbadoes, just knighted by Victoria, is a col ored man. His mother was a full-blooded negress His father was a Scotch planter. The Chief-Jus tice began life as a printer. He has served as Solicitor and Attorney-General of the Colony, and resigned the latter because of a disagreement with Governor Sir John Hennessey on West Indian federation. He has served for six years as ChiefJustice. The "Canadian Law Journal" is responsible for the following : " The following clause is to be found in an Act respecting domestic and other animals, now in force in the Province of Manitoba, and was enacted with a view of striking terror into the breasts of certain evil-doers who had the ' per nicious ' habit of ' catching animals at large and using them without the owner's consent.' It reads as follows : 3. No person catching or detaining, or causing to be caught or detained, any animal that has been advertised by the owner, or by any person on his behalf, as lost or strayed, shall be liable to fine or imprisonment under this Act, un less he shall establish, to the satisfaction of the court in which the charge is made, that he took immediate and proper measures to inform the owner of the animal, or his agent, of its having been caught." Comment would be useless.

Following upon the heels of the public discus sion as to the legality of " trusts," comes a decision by Judge Barrett of the Supreme Court of New York, bearing upon the sugar " trust." The popu lar mind, ignorant of the technical meaning of the decisions of courts, and grasping simply at the shadow of things, has proclaimed this case as a direct and substantial blow at " trusts," and inter preted it to mean the complete and immediate overthrow of that gigantic partnership. Nothing, however, could be further from the facts, though the decision, of course, has a tendency in that direction. The facts, succinctly stated, are these : The " trust " rests upon a written agreement styled the trust deed. Und^r this deed all the corpora tions which are to enter the combination agree that all the shares of the capital stock of all the corporations shall be transferred tc a board, con sisting of eleven persons, trustees, joint tenants, subject to the purposes set forth in the deed, namely : To promote economy and reduce cost of manufactured article; to give to all the use of appliances used by the others; to furnish pro tection against unlawful combinations of labor; to protect against lowering standard of manufac tured articles, and generally to promote the inter ests of all parties in all lawful ways. The board was, in effect, to manage the allied and combined interests. The stock held in each individual cor poration was to be transferred to this board, who were to issue to each corporation, in lieu of said stock, trust certificates, in value equal to the ap praised net assets of each corporation. Thereafter the original corporate shareholder ceases to hold any further relations with his particular corporation, and thenceforward he is treated as a shareholder in the trust board. All profits arising from the business of each corporation is to be paid to the trust board, who blend all the profits received from all the corporations into one grand mass, and from that aggregation declare such dividends as may seem appropriate. Thus we have a series of corporations, existing and transacting business under the forms of law, without real membership or genuinely qualified direction, — mere abstract figments of statutory creation, as Judge Barrett says, without life in the concrete, or underlying association. This suit was a quo warranto against one of these corporations, asking for its forfeiture and dissolution. The court, in awarding the writ and Editorial Department. declaring judgment of forfeiture, proceeds upon the ground that the corporation has entered into a combination and exercised privileges and fran chises not conferred upon it by law; that any act of a corporation which is forbidden by its charter or by a general rule of law, and strictly every act which the charter does not expressly or impliedly authorize, is unlawful. This was the gist of the decision; and so far as that case was concerned, it was sufficient. But the court thereafter entered into an extended consideration of the question whether such combination, into which the corpo ration unlawfully entered, is an injury to the public and unlawful in itself. This question was decided in the affirmative. Judge Barrett and Professor Dwight are thus at issue on the latter question; and we are frank to admit that a study of the arguments of both leaves the student much in doubt. — The Central Law jfournal.

The consideration of the application of Made moiselle Popelin to be permitted to plead in the Belgium courts was disposed of on December 12. The court refused Mademoiselle Popelin's demand, holding that the laws and manners of the country were opposed to the exercise of the advocate's profession by a woman, who has other and social duties to perform.

Accent SDcatljjBf. Dr. Francis Wharton, Solicitor of the State Department and author of the " Standard Digest of International Law," " American Criminal Law," "The Law of Negligence," "Criminal Pleading and Practice," and many other standard works, died at his residence in Washington, February 21, aged sixty-eight years. Dr. Wharton graduated at Yale in 1839, arK* practised law in his native city. He was professor of English Literature, etc., in Kenyon College, Ohio, from 1856 to 1863, when he was ordained a minister of the Episcopal Church and became rector of St. Paul's Church, Brookline, Mass. He was afterwards connected with the Episcopal Theological School at Cambridge, Mass., professor at the Boston Law School, and associate editor of the Philadelphia " Episcopal Recorder." An excellent portrait of Df. Wharton, and an ac count of his connection with the Boston University Law School, will be found in this number.


Hon. Samuel N. Bell, of Manchester, N. H., a well-known lawyer, and one of the wealthiest and most prominent citizens in the State, who died suddenly at Deer Park Hotel, North Wood stock, was born in Chester, March 25, 1829. He was graduated at Dartmouth in 1847 > studied law with, and became a partner of, State Attorney William C. Clarke. In 1871 he was the Demo cratic candidate in the second congressional dis trict, and was elected over Gen. A. F. Stevens, Republican candidate. He also served in the Forty- fourth Congress. Mr. Albion K. P. Joy, a well-known lawyer of Boston, died at Winchester, February 1 7. He was a graduate of the Harvard Law School, Class of 1848, and in 1855 was a member of the Boston Board of Aldermen. About thirty years ago, when he lived in Boston, he was a member of the Legis lature. At one time he was attorney for the Union Pacific Railroad Company. He was one of the in corporators and trustees of the Winchester Savings Bank, and for a number of years acted as the bank's attorney. Mr. Joy was a native of Maine, where he was born about sixty-four years ago.

REVIEWS. Johns Hopkins University Studies, seventh series, II., III. This double number contains an historical account of " The Establishment of Muni cipal Government in San Francisco," by Bernard Moses, Ph.D. The events described extend over three quarters of a century, from the foundation of the Spanish pueblo, in 1776, to the adoption of the city charter, in 1851. This history is of ex treme interest, and the paper is a most valuable addition to the many excellent articles published in this series of studies. We make one brief extract, showing the contrast between the San Francisco of fifty years ago and the city of to day. "In 1839 San Francisco had been founded more than sixty years; still it was without a jail, from which it is to be inferred that but little progress had been made in civilization. Finding the criminal Galindo on their hands, the inhabitants of San Fran cisco, through Justice De Hare, asked of the governor that he might be sent to San Josd, which was already provided with a prison. Besides the lack of a jail, another reason for the request was that the inhab 88|The Green Bag.|}}

itants of the place were scattered : each having his agricultural interests at a great distance from the town, so that there were very few remaining to guard the criminal, and these could not spare time from their personal business." In the Harvard Law Review for January, Prof. C. C. Langdell continues his papers entitled " A Brief Survey of Equity Jurisdiction," this being the fourth in the series. Klewett H. Lee commences in this number a discussion of the " Limitations imposed by the Federal Constitution on the Right of the States to enact Quarantine Laws."

The Columbia Law Times for January is an unusually interesting number. " Hints on Advo cacy " contains much that will bear careful perusal by even experienced practitioners at the bar. A copy of questions propounded for examination for admission to the New York Bar will be eagerly read not only by the students of Columbia, but by those of other law schools. For the most part they seem to be of a very practical nature, though we find a few old " chestnuts," as, for instance, "What is the difference between an executory devise and a contingent remainder?"

The Canada Law Journal for January con tains a bright and interesting paper on " Law for Ladies," by R. Vashon Rogers. The humorous comments on various decisions of the English and American courts in regard to Women's Rights are exceedingly amusing.

In the Canadian Law Times for January, R. S. Cassels discusses " The Effect of Indemnity Clauses upon Trustee's Liability for Wilful Default and Neglect," and T. W. Tempany, of London, con tributes an interesting paper on " The Amalgama tion of the Legal Profession in England." The Chicago Law Journal for January con tains an able article on " Prohibition v. The Con stitution," by James C. Davis, of Keokuk; also articles on the " Rights of Trespassers upon Rail roads," and " Public Prosecutors."

BOOK NOTICES. A Treatise on the Law of Trials. By Seymouk D. Thompson, LL.D. Chicago. i?Sq. T. H. Flood & Company. Two volumes. S12.00 net. Anything from the pen of this distinguished writer is always gladly welcomed by the legal profession. This work on Trials fully sustains the reputation of its author, and will be found invaluable to the active practitioner. The arrangement of the work is such, and the index so full and complete, that one can with the greatest ease find anything that may be required upon a given point. The two volumes con tain nearly twenty-five hundred pages, and citations of over fifteen thousand cases.

The leading article in the January Criminal Law Magazine and Reporter is on " The Doc trine of Reasonable Doubt," by Hon. Seymour D. Thompson.

American Constitutional Law. By J. I. Clark Hare, LL.D. Boston, 1889. Little, Brown, & Co. Two volumes.? 1 2.00. This work, in two volumes, is an embodiment of a course of lectures delivered by the author in the Law School of the University of Pennsylvania, with ad ditions and modifications, made necessary by the current of decisions and events. These lectures are fiftv-nine in number, and cover the ground from the adoption of the Constitution to the present time. It is undoubtedly the most exhaustive work on the subject yet offered to the profession.

The Chicago Law Times begins its third vol ume with the January number. Among other good things it contains a biographical sketch of Joseph Story, accompanied with an excellent por trait, and articles on the " Source and Extent of Legislative Power; " " Reform in the Administra tion of the Criminal Law in Illinois," and interest ing sketches of some of the " Representative Members of the Chicago Bar."

A Digest of the Reports of the United States Courts. Vol. V. By Benjamin Vaughan Ab bott. New York, 1889. Diossy & Company. $6.50. This volume contains a digest of the U. S. Reports from January, 1884, to December. 1888, making a volume of over 700 pages. Mr. Abbott's work in this series is too well known to require further com ment. This volume seems in every respect the equal

of its predecessors. The

Vol. I.

No. 3.




March, 1889.

CHIEF-JUSTICE SHAW. IN the judicial annals of Massachusetts the name of Chief-Justice Shaw stands first and foremost among the many distinguished judges who have adorned the bench of the Commonwealth. Lemuel Shaw was born at Barnstable, Mass., on the 9th of January, 1781, and was the son of Rev. Oakes Shaw and Susannah Hay ward. His father was ordained minister of the West Parish of Barnstable in 1760, and continued in the pastorate until his death in 1807. That he was faithful to his people and that they loved him, this long connection shows. The mother was a woman of vigor ous mental and physical powers, and lived to see the honors and successes of her son; dying under his roof in 1839, at the extreme age of ninety-four. Lemuel Shaw's childhood was passed in an old-fashioned New England parsonage — if the minister's house may be so called — in that part of Barnstable known as Great Marshes. Here, as he grew older, he was fitted for college under his father's instruction, leav ing home only for brief final preparation at the school of a Mr. Salisbury at Braintree. In 1796, at the age of fifteen, he entered the freshman class at Harvard. During the winter vacations of the last three years of the course, to help pay the college bills and to relieve his father, he kept a district school. He was an earnest, industrious student, and held a good rank in his class. On leaving college, a position as usher in the South Reading School, afterwards known as the Franklin School, in Boston, was ob tained; and here, as he afterwards expressed it, he " worried through " a year. At the 13

same time he was a writer or assistant editor for the " Boston Gazette." After relinquish ing his position as usher, he entered, as a student, the office of Mr. David Everett, a lawyer at Boston; and on Mr. Everett's re moval to Amherst, N. H., Mr. Shaw went with him, and there completed his term of study. In September, 1804, he was admitted to the bar of New Hampshire, and to that of Massachusetts in the following October. The beginning of 1805 found him in an office in Boston, from which, after a few months, he moved into the office of Mr. Thomas O. Selfridge on the north side of the Old State House. His advancement in the profession could not have been very rapid at first, as he did not argue his first case before the Supreme Judicial Court until 1 810, six years after his admission to the bar. This case may be found reported in the sixth volume of Massachusetts Reports. The amount involved w£s only five dollars, and the future chief-justice lost his case. For twenty-six years Mr. Shaw devoted himself faithfully to the study and work of his profession, but not to the utter exclusion of other studies. A man cannot be a great lawyer who is nothing else. The mind re quires not only diversity of discipline, but generosity of diet. It cannot grow to full, well-rounded proportions on any one ali ment. Mr. Shaw understood this, and read and studied much outside of Coke and Blackstone. While he did not, we think, keep up his intimacy with Greek and Latin, he was at home with the English classics and a master of the English tongue. He liked the elder

|The Green Bag.|}}

English novelists and satirists, — Swift, DeFoe, Fielding, and Smollett. He was a student and admirer of Hogarth, frequently calling attention to the minute details of his pictures, showing the artist's nice touch and the student's careful eye. He was a close observer of Nature, — of the trees of the forest, and of the wild flowers and their haunts. He had a strong taste for, and a love of, mechanics and the mechanical arts. A new machine was a delight to him, and after court he must go down to the machineshop or manufactory to see it in operation. He also took great interest in the affairs of town and State, and held numerous offices, being school- committee man, fire warden, selectman, and for eight years a Represen tative to the Legislature from the town of Boston; and for three or four years Senator from Suffolk. In the Convention of 1820, to revise the Constitution of the State, Mr. Shaw was a delegate from the town of Boston. During all these twenty-six years of prac tice, Mr. Shaw's business was confined chiefly to the Boston courts. He worked alone, with brief exception, for the first six teen years, and then took into partnership Mr. Sidney Bartlett, who had been his stu dent, and who up to the time of his death was so well known to the bar of this Com monwealth and in the Supreme Court at Washington. Mr. Shaw travelled but little, was fond of home, but enjoyed greatly the meetings of the clubs of which he was a member, and other social gatherings. He had fine social qualities, large conversational powers, and a fund of good humor and quiet mirth. He was twice married. His first marriage, at the somewhat mature age of thirty-seven, was with Eliza, a daughter of Josiah Knapp, Esq., a merchant of Boston. By her he had two children, a son and daughter. His sec ond marriage was in 1827, with Hope, a daughter of Dr. Samuel Savage, of Barn stable, by whom he had two sons, both of whom afterward became members of the bar

in Boston. Home was always a happy place to him; and he never was more attractive and delightful than at his own fireside. In this quarter of A. century at the bar, Mr. Shaw built up a solid professional repu tation, and acquired a valuable practice; not a great many cases, but important and leading causes. His examinations and arguments of legal questions were comprehensive and thorough; his addresses to the jury, forci ble, earnest, and logical. Upon the death of Chief-Justice Parker,in the summer of 1830, Mr. Shaw was ap pointed by Governor Lincoln as his suc cessor. He was at first very reluctant to accept the office; and a heavy pressure was brought to bear upon him before he con sented to do so. He was then in his fiftieth year; he had won his way, slowly but surely, to eminent rank at the bar, and to a lucrative practice. He had acquired a moderate prop erty, and was living happily and to his taste. He had a growing family to support and educate. He knew a great place was to be filled, and was distrustful of himself. He felt that he ought to and must decline. In this exigency Mr. Webster was requested by the Governor to confer with him, and urge his acceptance of the place. After two in terviews with the future chief-justice, Mr. Webster succeeded in obtaining a reluctant assent. Mr. Shaw accepted the office, and held it for thirty years, retiring in 1860, less than a year before his death, which occurred in 1861. He went upon the bench in his fiftieth year, and then worked through the lifetime of a generation, with strength and vigor to the last. Some of his later judgments are his best, and are, indeed, remarkable for their freshness and for the sagacity and grasp with which he apprehended the new exigencies of society and business, and ap plied and adapted old rules of law to them. An opinion written in his eightieth year (Commonwealth v. Temple, 14 Gray, 69) has the freshness, vigor, and constructive power of early manhood. Chief-Justice Shaw. In the thirty years during which Mr. Shaw presided over the Supreme Court, great changes were made in the jurisprudence of the State and the methods of administration; and he was constantly called upon to adapt himself to these changes, to reconcile the old with the new, and to assist in bringing them into order and harmony. In doing this he showed the strength and fertility of his re sources wherever principles and their appli cation were involved. As a judge he was careful, thorough, sys tematic. He had a patient ear, — not merely the passive consent to listen, but the desire to be instructed in the facts and law of the case, no matter how inconsiderable the amount involved, or however humble the parties or their counsel. He was no re specter of persons; and a good point well put by the youngest member of the bar told with the same effect as if made by the leader. His rulings upon interlocutory questions and the admission of evidence were well con sidered and carefully noted; his charges to the jury simple and clear, but at the same time comprehensive and impressive. He was, in the best sense, impartial, and weighed with an even scale the merits of the cause. It was a pleasure to try causes before him; for one's repose in his integrity, fairness, and sense of justice was never ruffled. He held the reins in his own hands, quietly, firmly, with no twitching or jerking, but so that the strongest men at the bar perfectly under stood who presided. He was a man of great firmness; but this firmness was not obstinacy, dogged conceit, unwillingness to confess error. It was a sense of duty; nothing could shake or dis turb that. Such was the veneration for him, that no man would have ventured to suggest to him a consideration or motive outside of the line of duty. Though this firmness brought him into conflict with a strong and sensitive popular opinion on several occasions, we think it never impaired the public esteem and confidence. Men who knew Chief-Justice Shaw found it impossible not to respect him.

The most celebrated criminal trial over which Judge Shaw ever presided was that of Professor Webster for the murder of Dr. Parkman. Time seems to have vindicated his impartiality and ability on that occasion; but at the moment he was assailed by savage at tacks in the newspapers of New York and Philadelphia, and by abusive letters. But, after all, the reputation of the ChiefJustice as a jurist must rest upon his reported judicial opinions. These, beginning with the tenth volume of Pickering, extend to and include the fifteenth volume of Gray. They make, perhaps, a third part of the matter in these 'fifty-five volumes. Through these re ports he is known as well to the profession throughout this country and England as in his native State. His judicial opinions are thorough and exhaustive. They seldom rest on mere authority, but strike down to the very root, — to the principle on which the cases rest. We venture to affirm that there are, in the reports of this country or of Eng land, no more instructive and suggestive judicial opinions and arguments than those of Judge Shaw. But, great as was the judge, the man was greater than the magistrate. A truer man, indeed, did not grace his generation. With that little roughness of exterior, he was like the nuggets of California, — through and through solid gold. But the man bowed to the magistrate. With the largest sense of equity he was the servant of the law he was set to administer, and obeyed its mandate. With the soundest judgment, with masterly powers of reason ing, and, in discussion, with a subtlety of logic seldom equalled, he had literally no pride of opinion, but retained to the last the docility of childhood, — the ever open and receptive and waiting spirit, into which wis dom loves to come and take up its abode. With a stern sense of justice, he had the tenderness of a woman; and while the magistrate pronounced the dread sentence of the law, the man was convulsed with grief and sympathy. 92|The Green Bag.|}}

With a firm trust in God, with a constant sense of his presence, looking to him for guidance and support, nothing could move him from the path of duty. He stood in his place, and the billows broke at his feet. In the year 1860, having then nearly at tained the age of eighty, and completed thirty years of service on the, bench, being in full possession of his mental and bodily faculties, he tendered his resignation as chief-justice. It was received with a universal expression of respect and affection from the public; and the address of a committee of the bar of the whole State gave him the opportunity of making a farewell address, in which he feel ingly acknowledged the support which his

reliance on the good-will of his professional associates, the advocates at the bar, had fur nished him, and in which he left his testi mony to the value of our judicial system : "Above all, let us be careful how we disparage the wisdom of our fathers, in providing for the appointment to judicial office, in fixing the tenure of office, and making judges as free, impartial, and independent as the lot of humanity will admit. Let no plausible or delusive hope of obtaining a large liberty, let not the example of any other State, lead you in this matter to desert your own solid ground, until cautious reason or the welltried experiments of others shall have demonstrated the establishment of a judiciary wiser and more solid than our own."

A VISIT TO SOME ENGLISH PRISONS. By Clement K. Fay. IN the summer of 1887 I spent my vaca tion in England; and as I was then a Commissioner of Prisons for the State of Massachusetts, I took the opportunity to visit some of the English prisons for pur poses of inspection and comparison with our own. Soon after reaching London I called upon Hon. Sir Edmund F. Du Cane, the surveyor-general of prisons in England, in whom the whole prison system of that country may be said to centre, although the actual control is vested in the Home Office. I was armed with a letter of introduction from Mr. Phelps, our minister plenipotentiary. Sir Edmund received me very courteously at his house in South Kensington, and after an interesting conversation as to our American prisons, and especially the " indeterminate sentence " plan which exists at Concord, Mass., and in some other States, he gave me letters of introduction to the governors of the three famous prisons in London, — Millbank, Pentonville, and Wormwood Scrubs, — with instructions to those officials to show me every attention and give me any information

which I wanted; and I was treated by each and all of them with great politeness and consideration. I went first to Millbank, a large prison on the north .bank of the Thames, in West minster, which was built about the beginning of this century upon a design by Bentham. The plan is, so far as I know, unique, and is certainly interesting. Each prison in Millbank (for there are practically several in one) is built in the form of a pentagon, four sides of which are devoted to cells and the fifth to the officers' quarters, workshops, etc., which form a base. Six of these bases are brought together to form a centre of hexagonal shape, something like an ordinary table-caster with six cruets, or bottles, round the handle. The tiers or corridors are isolated from one another. There are three tiers of cells, each tier having fifteen, so that it is only possible for a warder to have, at most, thirty cells under his inspection by standing at the corner of the corridor where he can command a view in two directions. Under the more modern radiating plan, as at Charlestown or Concord, A Visit to some English Prisons. Mass., a person standing in the guard-room under the dome can see all the cells, with the tiers, or iron platforms, in front of them, which are exposed to view, a large open air space being left outside of the tiers and be tween them and the wall of the cell building. It is like standing on the hub of a large wheel and looking along three spokes radi ating from it. Of course, the Millbank plan is too antiquated, inconvenient, and expen sive to be of value at the present day. In order to inspect the whole prison, one must walk about two and one half miles, and this involves the locking and unlocking of over one hundred doors. Millbank was formerly one of the prisons to which convicts sentenced for more than five years were committed, and herice was known as a " convict " prison. In England there are two kinds of prisons, — the " local " prisons, the maximum term of imprisonment in which is two years, and " convict " prisons, in which the minimum term of imprisonment is five years. There are no sentences between two and five years. The English prison system is now, and has been for the past few years, in a transition state. Of course some leading features are, and are likely to be, un changed; but the number of convict and local prisons has been reduced, and there has been also a marked reduction in the number of crimes and criminals within that time. Millbank and Pentonville, originally built as convict prisons, have been changed into local prisons, and Wormwood Scrubs is about to be. Millbank is to be given up entirely, partly on account of its architectural defects, but chiefly because of the great value of the several acres of land which it covers. It is surrounded by a high brick wall, which used to have a moat round it, but which has been filled up. Pentonville, which is in the north of London, had 1,071 male prisoners when I inspected it. There, for the first time, I saw men walking on the treadmills. These large wheels are sur rounded by wooden steps running the length of the wheel. The men are separated from one


another by partitions, and each one catches hold of a horizontal bar and continues a slow tread from one step to another, all of course stepping together, and as it were kicking away the steps from under their feet. The wheels, like the " mills of the gods, grind slowly," making wheat into flour, from which the bread is baked for use in Pentonville and Millbank. The prisoners tread for fifteen minutes and rest five minutes, for several hours at a time. When I went there, there were 84 at work on the treadmills, although there were accommodations for over 200. Wormwood Scrubs, the most modern of the London prisons, is in the northwestern part of London, and is a fine collection of build ings, erected entirely by convicts. Even the bricks were made by them. Printing, stonecutting, and carving, carpenter work, matmaking, brickmaking, and other industries, all for the government, are carried on there, and entirely without steam power; and in all three of these prisons the practice is to utilize the labor of the prisoners for the public works and institutions and by the sole exercise of hand power. I was told that the contract system of convict labor is very little used in England, the work being almost entirely upon what we call the " State account" plan. At Wormwood Scrubs the convicts print the "Habitual Criminals' Register," which is of vast benefit in the detection and identifica tion of criminals. This record is published and distributed to all the prisons and police stations in the country annually. Flogging is still in vogue in English prisons, but it is only applied in obedience to the direction of the court in passing sen tence upon criminals of a certain kind; or sometimes, though rarely, as a last resort to punish a refractory prisoner who has per sisted, after previous punishments, in defy ing the authority of the prison officials. A criminal who has assaulted an official while in the discharge of his duty, or who has committed robbery with violence from the person, — a garroter or highwayman, — may, in addition to a term of penal servitude, be 94|The Green Bag.|}}

sentenced by the court to receive twenty, thirty, forty, or even fifty lashes, one half to be administered at the beginning, the other half at the end of the sentence. When it is resorted to as a means of discipline it is only after the case has been laid before the prison directors and carefully investigated. Prisoners in England have the right to make complaints to the governor of the prison, which are entered, together with the governor's action thereon, in a large book kept for that purpose, and open to inspection by the prison directors and commissioners, who may, in some cases, revise the action of the governor. The cells in English prisons are con structed on quite different principles from ours. They are much larger, are roofed with a brick arch, and are well lighted and ventilated. The light comes from a window about seven or eight feet from the floor, which is some three feet wide by eighteen inches high. The doors, unlike most of those in America, are solid and are about two inches thick instead of being grated like ours; so that one who walks along the corridor outside of the cells can only view the interior by moving a slide and looking through a small peephole about an inch in diameter. If a prisoner wants to communi cate with a warder — some of whom are always on watch in the corridor — he can press a knob in the cell that rings a bell and throws out a signal which can easily be seen, like a bedroom annunciator in a hotel. All the cells are neatly whitewashed, and the ventilation is good, especially in Wormwood Scrubs, where the warm air is forced into the top of a cell upon a novel plan that is said to work very successfully. The prisoner sleeps upon a mattress, with blankets, placed on two planks fastened to gether. Every morning he has to roll up his bedding and strap it, and turn up the plank bed against the wall. This enlarges the area for exercise in the cell. On the outside of each cell is a placard giving the name, number, and a distinguishing letter or mark

of the prisoner (if he has served previous sentences), and also a report on which are credited his marks. These marks are based upon his conduct and industry. If he gets eight marks a day for a month of twentyeight days, or two hundred and twenty-four marks a month for two years after he is committed, he is placed in the third grade; and if he continues as well for the third and fourth years, he is advanced at the end of each year to the second and first grade, re spectively. For good conduct, as with us, he is entitled to a commutation of the term of his sentence, and is released upon the "ticket of leave," or, as they call it in Eng land, the " license " plan, the obligation of his parole continuing until the full term of his sentence has expired. If his record in prison has been perfect, the prisoner during the last year of his confinement prior to his release on license, becomes a " special class " man and wears a blue suit, instead of the white, or nearly white, suit of the ordinary convict. A " special class " man has certain rights, such as less hours of work and the privilege (for so it is regarded) of carrying messages from one officer to another; and the mere possession of these distinctions makes the " special class " man an object of envy, if not admiration, in the eyes of his less fortunate companions. We have no such system in most of our convict prisons. I wish we had. I have been frequently asked, " How does the English prison system compare with the American?" It is difficult to make a fair comparison, because in the first place there is no American system. Each State has a system of its own, or pretends to have. Then, again, as I have said, the English sys tem has undergone great changes within a recent period. The government of their prisons is now centred in the Home Office in London, at a saving of expense, and a reduction in the number of local prisons, in 1887, from sixty-one to fifty-five, and the convict prisons from thirteen to ten. Instead of having the country prisons governed by A

Visit to some English Prisons.


local boards throughout the realm, the gov that even he was not allowed to go into the ernment or. the system emanates, practically, female department of the prison. It was from Sir Edmund F. Du Cane, whose long under the charge of the matron and her fe experience and careful, intelligent study of male assistants On entering each English the whole question have given him a high prison, I was at once impressed by the at rank among the leading penologists of to mosphere of discipline which everywhere pre day, and in England he appears to be facile vails. The governor, deputy-governor, and warders are almost entirely military men, — princeps. I confess I think we might well adopt army or naval officers and soldiers, — who some of the features of the English system. have learned to command and obey. I in For instance, it is very difficult, if not im tend no personal reflection on any prison possible, for a curious visitor to get into an officials in this country. As long as cheap English prison unless he commits a crime. politicians can threaten them with removal In America, certainly in Massachusetts, the or defeat at the next election, we cannot ex prisons are too generally regarded as places pect them to improve the present state of of entertainment for the outside public. affairs. Many of our jails and houses of correction Prison discipline should be applied with have a sign announcing the visiting hours equal justice to the convict who has political on each secular day of the week, and it is or social backing and the poor, friendless not uncommon for picnic and pleasure par one who, if he had had a fair chance in life, ties to be gotten up for the express purpose might have been a good man. Our prison • of going to see a prison. I think this is all system should in some way be freed from wrong. It is subversive of discipline, is the meddlesome interference of politicians, often demoralizing to the prisoners, and may and should be safe from the capricious or illbe made — as it frequently is — the entering considered attacks of incompetent legisla tors. It is even a worse blot upon our wedge for a display of unreasonable senti mentality by the surprisingly large number system to allow political or social pressure of people who seem to regard a criminal as to shorten the term or secure the pardon of a martyr after he is in prison, and never a prisoner whose case stands on no better think of the victims of his crime or the footing than that of fifty others, and yet this safety and well-being of society. But it also is often done. Another and an immense superiority of increases the opportunity for evil-disposed persons to smuggle unlawful articles inside the English system over ours is the plan of the prison and give them to the prisoners. separating convicts when they are first com At best the easy access to our prisons for mitted to prison. In England the convict spends the first nine months of his sentence outsiders can only gratify a morbid or un worthy curiosity. Prisoners are entitled to in isolation. He lives in his large cell, — seclusion from the gaze of inquisitive people. much larger than ours, — and works there, They ought not to be placed on exhibition like picking oakum, making mats or baskets or the animals in a menagerie. It is especially shoes, or doing whatever work is assigned to unwise to admit women to male prisons, or him. He goes in the morning for half an" men to female prisons, whether those who hour to the chapel, and, if his health permits, are thus admitted are themselves prisoners exercises an hour each day in walking around or not. No person should be allowed to a large circle with a squad of other prisoners. ramble through a prison as a visitor except Only during this hour and a half a day is he upon a written permit granted by competent brought in contact with his fellow-convicts, and during that time he is carefully watched authority for good cause. At Millbank the deputy-governor told me and prevented from communicating with them. If he has earned the requisite number of marks by good conduct and industry, at the end of this nine months of isolation he is allowed to work with others, but always under strict guard, to prevent, as far as possible, any unnecessary talking. Compare this with our "congregate" system, as it is called. In our prisons all the criminals are herded together promiscuously. At the same bench or in the same shop, side by side, you can see the young beginner in crime and the hardened professional.

Talking, though nominally forbidden, is freely indulged in. Crimes are planned, experiences interchanged, and useful hints for future use outside are eagerly adopted; rebellions against the officials are arranged and made possible; the law-abiding convicts have their ears saluted with vile and contaminating language such as many of them have never heard before, and the whole system of the prison is tainted.

This is not overdrawn! I can produce prisoners to corroborate my statements. Is it any wonder that our prisons are thus made institutions for educating and graduating criminals who are worse after they leave than they were when they entered? By what right does the State send men to prison and compel them to breathe this air of contamination? The paramount idea in prison discipline should be the reformation of the prisoners. The State ought not to stoop to revenge by flogging or maltreating its convicts. But what can be further from successful reformation, or more dangerous to discipline, or more baneful in its effects, than this wholesale mixing of criminals,--for there are grades among criminals as much as among outsiders. This fact, which ought to be recognized and treated practically, is at present ignored.

In Pennsylvania, in the Eastern Penitentiary, they have adopted a plan of complete isolation (in theory at least) during the entire sentence of every prisoner. This, it seems to me, is going too far in the other direction, though I would not go to the same length that Dickens did in arraigning it. The nine months' preliminary isolation in the English system is the result of years of experimenting. Formerly the period was eighteen months, but that was thought to be excessive, and was abandoned.

Penology is a vast and perplexing study. In view of the frequency and increase of crimes in America, we shall do well, I think, to adopt such reasonable ideas from the Old World, not England alone, as have survived a practical test, and the temporary isolation and judicious grading of convicts are two such ideas which have been almost neglected by us, though their value and importance are recognized in England I know, and in France, Belgium, Italy, and Germany I am informed and believe.

We waste money enormously on our prisons. The buildings are too costly and the fare is too luxurious, so that large numbers of vagrants and other misdemeanants turn up, as a regular thing, over and over again, to live at the expense of the State in a style which they cannot themselves afford, and which, except for the accompanying stigma, is far superior to that of thousands of poor but honest men.

Green Bag Vol. 1 p. 96 tailpiece.jpg

CARLTON v. HESCOX. (107 Mass. 410.) By Austin A. Martin. [" Evidence of how much hay an ordinary horse will eat in a week is incompetent on the question how much hay was eaten in eight weeks and a half by a horse that teas not in ordinary condition."^ A citizen and horseowner is stopped by a Sheriff's Deputy.

IT is a sheriff's deputy, And he stoppeth one so free. "By Cock and Pye! and the Foul Fiend! Now wherefore stop'st thou me? "

Who serveth a writ upon him.

"I stop thee at brave Carlton's suit, Who s furnished grain and hay Unto thy gallant four-foot brute, Who ate and ne'er said neigh!

And summoneth him before the Superior Court next to be holden.

"Before the next Superior Court, I warn thee to appear; And if of justice thou hast aught, Thou there canst make it clear."

The Judge paceth into the Court

The Judge hath paced into the court; A portly man is he. With rev'rend mien behind him go The good and true jury.

The Trial. The Plaintiffs tale.

The Plaintiff opened then his case, And straight he did complain, That to defendant's gallant steed He d furnished hay and grain. And eight long weeks and eke a half Had given watchful care, To cure him of some fell disease, That noble horse did bear. A most astounding quantity Of hay that horse had ate; So swore good Amos Carlton Before the Court sedate.

Defendant is sore angered and amazed

Such monstrous weight of provender, Defendant Hescox swore, No living horse or hippogriff Had eaten e'er before. |The Green Bag.|}}


And to sustain this goodly plea, He straight a witness seeks To swear what common horse could eat, In eight and one-half weeks. He endeavoreth to put in certain evidence, but the Judge preventeth.

But mark the niceties of law! Carlton did there object, And promptly did the learned Judge The evidence reject.

And giveth his reasons therefor.

Defendant's The Justice And so was Concerning

was no common horse, did explain; no criterion hay and grain.

Whether it was, that, being sick, He ravenous had grown, Or that he was a Pegasus, Is not quite clearly shown. Prudent rule of conduct to be drawn from the learned Court's decree.

But from the learned Court's decree Most surely we may read, The only safe proceeding is, To own a common steed. So, all ye lovers of the horse, That is the friend of man, Be warned in time by this decree, Adopt the safer plan!

Advice to the lovers of good horses.

For if your spicy trotters, Or high-bred barbs you keep In public stable, much expense And trouble you may reap.

Showeth the dangers which beset a contrary course.

For stable-keeper may depose In good set terms, and say He 's fed your nag on terrapins And squabs, in lieu of hay. In vain indignant you'll protest! In vain you 'll earnest plead, That this is not good equine food! yours is no common steed. So shun to buy fine-blooded stock; 'T is fraught with sore remorse. Lower your pride, and humbly keep An " ordinary " horse! The Law School of the University of Pennsylvania.

THE LAW SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA. By C. Stuart Paiterson, Dean of the Department of Law of the Unwersity of Pennsylvania

THE University of Pennsylvania, founded in 1749, in the city of Philadelphia, has so far prospered that in this year (1889) it has in its College, Medical, Dental, Veterinary, Biologi cal, Law, and Philosophical depart ments one hundred and sixty-nine professors, lecturers, and instructors, and twelve hundred and twenty-two students. Thanks to the untiring and self-sacrificing efforts of its Provost and Trustees, and to the enthusiasm with which Provost Pepper has inspired every one who is in any capacity con nected with the University, a great advance has been made within a few years. The University Law School has now six chairs of instruction, and one hundred and forty-four students; but that law school dates only from April 2, 1850. In 1790 a professorship of law was established in the college de partment. Mr. Justice Wilson, of the Supreme Court of the United States, having been elected the professor, de livered his introductory lecture on December 15 of that year, "in the quaint old-fashioned hall of the Acad emy," in the presence of President Washington and his Cabinet, the Houses of Congress, the Executive and Legis lative Departments of the governments of the State of Pennsylvania and the City of Phila delphia, the Judges of the Courts, the mem bers of the Bar, and last, but not least, Mrs. Washington, Mrs. Hamilton, and many other ladies.1 But Mr. Justice Wilson's course of lectures, though commenced under such 1 Historical Sketch of the Department of Law of the University of Pennsylvania, by Hampton L Carson, Esq.

brilliant auspices, do not seem to have progressed beyond their first year. No further effort seems to have been made before 181 7 to give instruction in law to the students of the University. On March 20 of that year, Charles Willing Hare, Esq., of the Philadelphia Bar, was elected Pro fessor of Law, and delivered his introduc tory lecture in the following month. But he, like Mr. Justice Wilson, lectured for but one IO0|The Green Bag.|}}

year. The subject of instruction of law was again permitted to pass into oblivion, until, on April 2, 1850, the Hon. George Sharswood, then President Judge of the District Court of Philadelphia, was elected Professor of Law; and on September 30 of that year, he delivered his introductory lecture. On May 4, 1852, the Trustees of the University established a Faculty of Law, and appointed Judge Sharswood Professor of International, Constitutional, Commercial, and Civil law; Peter McCall, Esq., Professor of Practice, Pleading, and Evidence at Law and in Equity; and E. Spencer Miller, Esq., Profes sor of the Law of Real Estate, Conveyan cing, and Equity Jurisprudence. From that day down to the present time the Law School has been in active operation. Pro fessor McCall having resigned on June 5, i860, P. Pemberton Morris, Esq., was, in November, 1862, chosen as his successor. In 1868, Judge Sharswood having been promoted to the Bench of the Supreme Court of Pennsylvania, the Hon. J. I. Clark Hare, his successor as President Judge of the District Court of Philadelphia (now the Court of Common Pleas, No. 2), was also appointed his successor in the Faculty of the Law School. Professor Miller hav ing resigned his professorship in 1872, E. Coppee Mitchell, Esq., was, in 1873, elected to the Chair of Real Estate and Equity Jurisprudence. In February, 1874, James Parsons, Esq., was elected Professor of the Law of Personal Relations and Personal Property. Professor Morris having resigned in 1880, George Tucker Bispham, Esq., was elected the Professor of Equity Pleading and Practice. Professor Mitchell having died in 1887, C. Stuart Patterson was elected Professor of Real Estate and Con veyancing; and A. Sydney Biddle, Esq., was elected Professor of Practice, Plead ing, and Evidence at Law, and Criminal Law. To the great loss of the school, and to the great regret of his colleagues, and of all who have ever had the benefit of his instruction in the law, Judge Hare has re

cently resigned his professorship, and his successor is to be elected in the month of May of this year; but, fortunately for the ad ministration of justice, he remains upon the bench of the Court of Common Pleas over which he has presided since 1868. In addi tion to the changes in the personnel of the Faculty, changes have been from time to time made in the division and arrangement of the subjects of instruction in the school; and at the present time the titles of the sev eral chairs in the Faculty are as follows: — 1. A Professorship of Commercial Law, Practice and Decedents' Estates; incum bent, Prof. James Parsons. 2. A Professorship of Equity Jurispru dence, including the Principles of and Plead ing in Equity and Orphans' Court Practice; incumbent, Prof. George Tucker Bispham. 3. A Professorship of Constitutional Law, and the Law of Real Property and Con veyancing; incumbent, 'Prof. C. Stuart Patterson. 4. A Professorship of the Law of Torts, Evidence, and Practice at Law; incumbent, Prof. A. Sydney Biddle. 5. A Professorship of the Law of Con tracts, Corporations, and Pleading at Law, to be filled by election. 6. A Professorship of Criminal Law, to be filled by election. The present prosperity of the school is due to the intelligent and self-sacrificing la bors of those who have heretofore been its professors and those who were associated with them. It is fitting, therefore, that those who have succeeded them should gratefully record their appreciation of the virtues and abilities of their predecessors. George Sharswood, the first of the profes sors, was born in Philadelphia on July 7, 1810. He was graduated from the Univer sity in 1828. Having studied law with the Hon. Joseph R. Ingersoll, he was admitted to the bar on Sept. 5,. 1831. On April 18, 1845, he was raised to the bench of the District Court of Philadelphia. In 1848 he became by seniority the presiding judge of If

The Law School of the University of Pennsylvania.


that court. In 1868, he was elected an of the cause, and ever avoiding the unnecessary Associate Justice of the Supreme Court of discussion of collateral subjects, all are aware. Pennsylvania, and on Jan. 1, 1880, he became Hut his chief excellence was the ability to single the Chief Justice of the State. On Jan. 1, out the controlling principles upon which an im 1883, he retired from the bench; and he died portant cause depended, to carry them onward to in May, 1883. It is unnecessary to remind their utmost correct limitations; and in thus gen eralizing from established views he was able to students of the law, or lawyers, of his " Lec penetrate new and higher regions of truth, and to tures Introductory to the Study of Law;" of draw from them the aptest and most forcible argu his essay upon " Professional Ethics," the ments in support of his final results. Where mere

rules laid down in technical learning suf which, as Mr. George ficed, he could always W. Biddle has said, bring it to the proper "breathe the loftiest determination of the case tone and the highest in hand. But where a great public question, moral principle; " or such as some of those of his annotations of already referred to, came Blackstone, of Starkie before him, his treat on Evidence, or of ment of it was of a Byles on Bills. In broader and more mas the eloquent words culine kind. If we look of Mr. Hampton L. for a characteristic which Carson (an alumnus of distinguished him espe the school and a dis cially from other lawyers, tinguished member of we may, I think, find it the Philadelphia Bar), in the entire freedom as Judge Sharswood's from the misleading tech "services to the cause nical analogies of the law as applied to such ques of professional educa tions. He seems never tion have become the to have been led to ap most precious portion ply to public or constitu of the history of the tional questions the nar school, it cannot be row rules by which we inappropriate to ac are obliged to decide GEORGE SHARSWOOD. knowledge the heavy cases under powers, or obligations due to him of contingent remainders, or those arising under who bore aloft alone the weight of a great our artificial rules of property; nor was he em enterprise, and by courage, energy, enthusi barrassed by technical rules relating purely to the asm, industry, and learning established upon form of action. His mind was not only vigorous, the foundations of success an institution that but broad. Legal common-sense was as strong an had twice failed in distinguished hands." The attribute of him as ordinary common-sense is of characteristics of Judge Sharswood's judicial our most successful business men. Perhaps this character can best be stated in the words of is to be ascribed to his liberal education, his wide Mr. George W. Biddle, the Chancellor of the range of studies, history, politics, economic science. Law Association of Philadelphia, who has And he was a student all his life; his education, said, — so far as subjects kindred to jurisprudence were "That he was learned, careful in laying down concerned, being kept up to the very last. He was therefore able to rise readily to the greatness of the his premises, accurate in deducing his conclu sions, cautious in confining them to the exigencies occasion, and. flinging aside the technical trammels 102|The Green Bag.|}}

which in such cases hamper and impede the pro gress, he not only sustained himself steadily in his upward flight, but cleaving still loftier and purer fields of reason, he steered his way onward with tranquil ease, reaching, without apparent effort, the end always clearly kept in view. "Judge Sharswood was a living exemplar of the highest moral excellence during his whole term of office. To speak of him as simply an impartial

judge is to express his value in this respect very imperfectly. He was subject to no influences of any kind, other than the influences of the law and the justice of the cause. When on the bench he knew, he saw, nothing but the case before him, and the mode of reaching its correct de cision. It would have been impossible for any other motives, direct or indirect, to have reached him while thus engaged, — they could not even have approached him, or played near him. He was above and beyond them as much as if he had lived in another hemisphere. It was the sentence of the law that he was striving to get at peter to be extracted from the only sources known to the law. Nothing exterior to them could by possibility enter into and color them, while he sat as the guardian of the sacred deposit. "And then what was his devotion to the public service! For nearly forty years he gave to it without stint the exercise of the very highest facul ties, for a return when looked at from a pecuniary standpoint of the meagrest kind. The employ ment of a tithe of the ability displayed by him in the discharge of judicial duty, with an expenditure of time inconsiderable, — almost incommensurable, - with that so prodigally bestowed by him upon the public, would have yielded in return all the

material rewards which men usually rate so highly in this practical age. He held himself completely aloof from such influences. He knew no divided allegiance. He served one mistress, and one only, — the common weal. To her he gave, in early manhood, his affections, his faculties, his health, his strength, his life, without reserve, hesitation, or faltering; and he continued on until the days of his age had passed threescore years and ten. What an example in this age of ours for the juniors of the profession, what a complete volume of Professional Ethics, — this simple, singleminded devotion to the public cause; never turning aside from the course of duty; never using office, as others often have, — if not quite properly, at least with customary sanction, — as a stepping-stone to other ends; never seeking pre ferment, but letting it come, and taking it as the natural result of public consideration! This it was which en titled the Bar, speaking for the whole commu nity, to say to him when sitting for the first time as Chief Justice of the State, " Well done, good mccall. and faithful servant! re ceive the just reward of long and close and heavy service." Peter McCall, second of the professors in the order of seniority, was born in New Jersey on August 31, 1809 Having been graduated at the College of New Jersey, he came to the Philadelphia Bar on Nov. 1, 1830. He died on Nov. 2, 1880. He was for many years one of the leaders of the Philadelphia Bar. Profoundly learned in the law, he was, in his intercourse with all who were brought into contact with him, a model of courtesy. The Law School of the University of Pennsylvania. E. Spencer Miller was born in 18 18. He was graduated at the College of New Jersey. After some years of practice in Maryland, and afterwards in New Jersey, he was admitted to the Philadelphia Bar, on May 6, 1843. From then until the day of his sudden death, March 6, 1879, he was engaged in active practice.

He was a clear and accurate thinker, untiring in energy, and a very! forcible speaker. Pro fessor Mitchell char acterized him as the most successful lec turer that the Bar of Philadelphia has ever produced. One who stood very near to Pro fessor Miller during the later years of his life, and who was ex ceptionally well quali fied to do justice to him, thus sums up the traits of his charac ter: —


he raised and commanded a battery, which he took into the field for the defence of his Stale. In 1847 he published a 'Treatise on the Law of Par tition by Writ in Pennsylvania,' and in 1856 edited the second edition of Sergeant's ' Treatise on the Lien of Mechanics and Material Men in Pennsyl vania.' In 1849 he published a small collection of fugitive poems entitled ' Caprices,' which well deserved a circulation beyond the few copies which were distributed among his personal friends. In prose literature, also, he was a ready and graceful writer. He was noted for his high-minded and chivalrous bearing in all the relations of life."

P. Pemberton Mor ris was born in Bucks County, Pennsylvania, in 181 6. 'He was graduated at George town College. He studied the law in the office of the Hon. Job R. Tyson, and was admitted to the Bar of "Mr. Miller, as a law Philadelphia on Feb. yer, attained a very high 8, 1840. In 1849 he standing among his con published a learned temporaries. He was treatise on the Law of distinguished for his great Replevin, which has integrity, intrepidity, legal ever since been re erudition and skill, as garded as of high au well as for his faithful J. 1. CLARK HAKE. thority. In 1856 he ness and untiring indus annotated Mr. Smith's try. He was a close thinker on all subjects and a deliberate and careful work on the Law of Landlord and Tenant. speaker, and added to these characteristics a He was for many years engaged in active pungent and refined wit. The great facility which practice, mainly on the equity side of the he possessed for turning instantly from even the courts, and those who were so fortunate as pleasures of life to the most serious work was a to be his clients always found in him a sound remarkable trait; and no less so was the tenacity and judicious adviser. with which he clung to any course in the conduct Edward Coppee Mitchell was born in Sa of legal work upon which he had deliberately vannah, on the 24th of July, 1836. He was entered. "Although he had little taste for the arena of graduated from the University of Pennsyl politics, he nevertheless served twice as a member vania in 1855, and came to the Bar in 1858. of the City Councils, and was always ready to He rose rapidly in the profession until, as Mr. Justice Mitchell said, he became a master resist unwise or corrupt legislation. "During the war for the integrity of the Union, of Real Estate Law, and " for the combina ic>4|The Green Bag.|}}

tion of strenuous, unflinching, and unremit ting assertion of his clients' rights with a just regard for the rights of others, and a careful consideration for the feelings of his opponent, he was the ideal lawyer and gentleman." The value of his services to the Law School cannot be better shown than by quoting that which was said of him by his colleagues, Judge Hare and Professor

Parsons, at the meet ing of the bar held after his death. Judge Hare said : —

in it much to repel and little to attract the student. These obstacles were surmounted by Coppee Mitchell as they could not have been by any ordi nary man. His grasp of principles, and the lu cidity of his exposition rendered plain much that would otherwise have been obscure; while his easyflowing and persuasive rhetoric relieved the mo notony of the subject, and made it easy for the student to persevere. "Considerable as were the services thus ren dered to the University and to the cause of legal education, they were not all. He had, as I have already stated, an impor "I was Coppee Mitch tant trust to fulfil as Dean ell's associate in the Law of the Faculty. How dif School of the Pennsylva ficult it must have been nia University for thirteen for a man in active prac years, and knew him well. tice at the bar to give the During that long period study requisite for the there was no jar, nor professor's chair, can only could there have been be known to those who without fault on my side. have endeavored to com I preceded him in the bine dissimilar pursuits. school some years, and Vet was Mr. Mitchell was his senior by many, obliged to turn aside from and I confidently believed either task to greet the that when I went his hand young men who desired would still be at the helm. to follow the study of the It never occurred to me law, and who found in that he would be the first him a counsellor whose to take leave of life and geniality and kindness work. showed that if need were "Mr. Mitchell was, as he would act as a friend. you are aware, Dean of P. PEMBERTON MORRIS. Here the qualities of his the Faculty, as well as heart were conspicuous, Professor of Real Estate, and it is to them that we may ascribe no incon Conveyancing, and Equity Jurisprudence. This siderable part of the measure jf success that has position gave scope for both sides of a liberal attended the Law School of the University." nature, his head and his heart, and each was ex ceptionally equal to such a task. Some men might Professor Parsons said : — have taught law as well, others have been as well fitted to represent the University, in their inter "In his relations as Dean of the Faculty, and in course with the students and the outer world, but his contact with the bar, Mr. Mitchell exhibited there are few who Could have performed both parts the tact and the judgment and the knowledge of with as much ability and success. The law of real men which were requisite in order to establish the estate is one of the most arid branches in the field Law School of the University upon its present footing. In this he showed the high qualities ofjurisprudence. Logical and accurate in all its de tails, as becomes a system originating in the age of which have always distinguished him. He pos the schoolmen, it may, when mastered, like other sessed that practical capacity to deal with his as ingenious mechanisms, gratify the intellect, but has sociates, and when he came in contact with them, The Law School of the University of Pennsylvania.


of impressing them with his convictions by his discriminate between somewhat similar cases were persuasion. And this is only one illustration of the ones that were selected by him as topics for that trait. There were, of course, a great many instruction; but instead of stating the proposition other duties which devolved upon him as a repre in an abstract way — inasmuch as the instruction sentative of the Law School, in reference to the at the University is by cases — he always pre Bar of Philadelphia, because they had many other sented a case to a student, teaching the student

points of contact, and many other questions had how to handle it for himself, analyzing it into its to be considered and dealt with by him as the constituent elements, thus teaching him how to representative of the Faculty, in all of which he apply the principles of any particular case which acquitted himself well. As a Professor of the Law was under consideration, and how to distinguish School, he came in con between it and other tact with the students, similar or analogous not only while they were cases. Mr. Mitchell had, I say, beyond the state at the University, but ment of a mere abstract after they were gradu proposition, the faculty ated, when they were of popularizing the law. the Alumni of the Law He would present it not School; and he was in more direct contact with only in its naked form, but in a neat illustration, the students than any with an aptness and with other professor. He a directness that enabled took such personal in the student easily to grasp terest in their affairs that he was constantly con and understand the prin ciple involved. That is sulted by them in ref eminently important in a erence to the formation lecturer. Even in a court of their clubs, or of any I know how much a law organization they con yer's success may de templated while they pend upon his capacity were at the University, to present a proposition and even after they had in the various forms in left the University and which it will take shape still retained their inter in order to be sure that est in the institution it it will be fully understood self. Their agent in the E. SPENCER MILLER. by the court; and yet a University was Professor Mitchell. He had a court is supposed, from great many duties to perform; and this, among its experience, to almost intuitively understand the odier things, contributed to overwhelm him, to law, and to comprehend every element of any overtax his strength, and to break him down at a proposition that may be enunciated. Mr. Mitchell had the faculty of not only presenting a legal premature age. "In regard to his work as an instructor in the proposition in the ordinary systematic way in University, there are so many present who recall which it was developed, but in illustrating it by with distinctness his method of teaching, that it is examples which the student could hardly forget, hardly necessary for me to dwell upon it; but because they were so pat in the illustration of the point under discussion. His success was there was one quality about him which always im very great at the Law School as a lecturer. He pressed me, and which showed his skill as a lec turer. It was this : that his knowledge of the had a kind of magnetism in his address. Instead law was brought down to the very point, to the of mechanically delivering a lecture, it was his turning-point, on which its classification rests. nature to throw into it a certain amount of anima Those points of decisions which enabled him to tion, which always added to the weight of what •5 1o6|The Green Bag.|}}

he said. He always spoke standing; and he has told me that if he should sit down and undertake to state anything, he would instantly jump up, for it was impossible for him to sit still while he was talking. It was natural for him to arise as if addressing a court or a jury. "Judge Hare has said that the discussion of real estate law in the Law School requires practi cal skill in its presentation, in order not to repel the student. The real estate law is the backbone

of the common law, and it is necessary that it should be thoroughly comprehended and studied. Mr. Mitchell was enabled to teach it with great success, be cause he stripped it of all its technical forms, and where it was only mechanical and techni cal, and where it had become tedious and ob scure by over-repetition, he presented it in a way that seemed to refresh and revitalize the subject; and in reproducing those abstract subjects, one would think he was presenting his own rea soning, so clear were his explanations of what the law is. He took the law, and, instead of presenting E. COPPEE it as a thing of the dead past, he brought it down to the present day, so that it was presented by him just as it appears to-day in the practice of conveyancing and in the discussions in our courts." To this he, upon whose weaker shoulders the University has laid the burden of suc ceeding Professor Mitchell in the Chair of Real Estate Law, may add that every day which he has spent in the performance of his duty as a professor has caused him more and more to appreciate the high character of his predecessor's work, and to realize that Professor Mitchell's untimely death has been

an irreparable loss to the University and to the cause of legal education. It need not be said that a school which numbered among its teachers such men as Chief-Justice Sharswood, Judge Hare, Mr. McCall, Mr. Miller, Mr. Morris, and Mr. Mitchell, and those who were associated with them, gave thorough instruction in the law. But those professors, in the perform ance of their duties, labored under disad vantages which have happily been removed from the paths of their successors. The course was in their time limited to two years, each year in cluding two terms of four months each, with an aggregate of ten hours of instruction each week. Now the course has been ex tended to three years, with a minimum of twenty hours of in struction in each week. For several years preceding the present year the lec tures and examina tions have been con MITCHELL ducted at the Uni versity Buildings in West Philadelphia, at a distance from the homes of the students and from the offices of their preceptors. Now the Law School has obtained commodious quarters in the building of the Girard Trust Company at Broad and Chestnut Streets, in the business centre of the city and in convenient prox imity to the homes of the students, the of fices of their preceptors, and the courts. The whole of the sixth floor of that, build ing will be occupied by the lecture rooms, library, and the offices of the executive de partment of the school Until the present The Law School of the University of Pennsylvania year the Law School has not had a library appropriated to the use of its students; but now, by the liberality of the family of the late George Biddle, Esq., a library contain ing complete sets of the English Reports, the Federal Reports, and the reports of the courts of last resort of the several States, has been presented to the University as a memorial of that distinguished lawyer. The curriculum of the school now includes thorough instruction in the following topics of the law : Constitutional Law, Equity Ju risprudence, Contracts, Bailments, Corpora tions, Carriers, Real and Personal Property and Conveyancing, Wills and Administra tion, Torts, Practice, Pleading and Evidence at Law and in Equity, and Criminal Law. Within a short time arrangements will be completed for a course of lectures to be delivered by competent instructors in In ternational Law, Admiralty, Patents and Copyrights, and Medical Jurisprudence. The requisites of admission to the school are : — 1. A satisfactory degree as Bachelor of Arts or Bachelor of Science; or, 2. A certificate of preliminary examina tion from the Board of Examiners of the Bar of Philadelphia; or, 3. A certificate from two or more exami ners appointed by the Faculty of Law, set ting forth that the student has passed a satisfactory examination in English and American History, the Latin Language, and the first two books of Blackstone's Com mentaries. The course of instruction is strictly graded, and instruction is given by lectures and by frequent examinations. The students are required to read and discuss the leading cases illustrating the subject of in struction. Moot Courts are held at which questions prepared by the professors are argued.


Under the statutes of the University a de gree of Bachelor of Laws is granted to can didates who having attended upon the full course of instruction in the Law Department, and having prepared and submitted to the Faculty an essay on some legal subject suffi cient in merit to satisfy the Faculty of their fitness to receive the degree, shall have passed a satisfactory examination upon the subjects of instruction. The degree of Bachelor of Laws cum honore is granted to such can didates as may be certified by the Faculty to have passed the final examination with distinction. Graduates of the school are ad mitted to practise in the Supreme Court of Pennsylvania, and in the courts of Phila delphia County upon compliance with the rules of the courts as to registration. There is also a post-graduate (course of study, cover ing two years and involving a philosophical inquiry into the history and sources of the law. Graduates of this course receive the degree of Master of Laws. A system of Fellowships has been created, under which the Faculty may select from the graduating class a distinguished student, and appoint him a resident " Fellow " to serve for three years at an annual salary of $300, and to give instruction in the Law School under the direction of the Dean of the Faculty. The aim and end of the system of instruc tion of the Law School of the University of Pennsylvania is to train students of law so thoroughly that when they shall have been graduated they will be competent to enter into practice at any bar in the United States. Since the establishment of the Law School, in 1850, more than seven hundred students have been graduated, most of whom have engaged in active practice, and by their professional success have reflected credit upon their Alma Mater. 1o8|The Green Bag.|}}

CAUSES CELEBRES. III. THE MYSTERY OF THE RUE DE VAUGIRARD. [I833-] ON the 23d of April, 1833, several car riages were drawn up before the door of a house in the Rue de Vaugirard, bearing the number 81. From the first alighte'd a tall thin man who carried in one hand a law yer's bag filled with papers; after him came two men whose faces bore marks of evident anxiety and disturbance : one of them, short and thickset, was fashionably dressed and wore a pair of enormous green spectacles, behind which a pair of restless eyes seemed constantly in motion; the other, pale and thin, clad in the garb of a well-to-do work ing-man, appeared greatly depressed, and gazed vacantly about him. A municipal guard and two officers sur rounded these last individuals as they alighted. From the second carriage, at the same mo ment, descended two men, one of whom car ried a surgeon's case. The other was no less than the dean of the medical faculty, M. Orfila. He approached the first person whom we have described, and grasping him by the hand, said, — "Monsieur Procureur du roi, my col league, Dumoutier, and I are here at your orders. What does it concern? A case of poisoning? An autopsy?" "Nothing of the kind," replied the pro cureur du roi, smiling; "it concerns rather a question of archaeology." "Then you have addressed yourself to the wrong persons. You should have sent for Letronne." While carrying on this conversation, the magistrate and the two savants had entered, through a low dark gateway, the garden at tached to the house. This garden was large, but evidently had not been cared for within the past few years. The paths were overrun

with grass and weeds. A short flight of di lapidated steps led from this enclosure to the dining-room of the house. A large kitchen table stood under an old apricot-tree in a corner of the garden, upon which were ink, pens, and paper. A few chairs and a large white-pine box completed the preparations which had evidently been made in expectation of the visitors whom we have introduced. The procureur du roi, the two savants, a greffier, the municipal guard, and his two acolytes, each holding by the arm one of the two men who appeared so greatly disturbed, directed their steps to the apricot-tree. The procureur, after glancing at a plan which lay upon the table, turned to two workmen who were standing near the wall, and designating with his finger a cross traced in red ink upon the plan, said, — "Begin there." The two men at once commenced to dig the ground near a path which ran along be side the wall. After working a few moments one of them suddenly felt his pickaxe pene trate an excavation, and uttered an exclama tion of surprise. The short thickset man with the green spectacles started involun tarily, and a momentary flash lighted up the dull eyes of his companion. The municipal guard and the two agents of police contracted the semicircle which they formed around these two men, still holding them tightly by the arms. "Now," said the procureur to the work men, " take the greatest precautions; proceed slowly, and be careful to break nothing." The men emptied the earth with their hands from the hole that they had made, and laid bare a layer of mortar which apparently formed the covering of a sort of vault. It Causes Celebres. was this which the pickaxe had penetrated. This layer being removed, beneath it was discovered an excavation about four and a half feet long and three and a half feet deep. Lying at the bottom of this excavation could be seen a skeleton with a cord around its neck. The teeth and hair were perfectly preserved, and a gold ring still encircled one of the fingers. "It is evident," said M. Orfila, " that this body was originally covered with quicklime, but they forgot to throw in the water. So the lime, instead of consuming the body, as was doubtless intended, has only served to preserve it. The flesh has disappeared, but the skeleton is complete. Well, my dear magistrate, is this the subject? What do you wish us to do with your antiquity? " "It is necessary, gentlemen," replied the procureur, addressing the dean, the anato mist, and two new-comers, Dr. Marc, and Dr. Bois de Loury, — " it is necessary for you to accomplish a miracle: to reconstruct this body, decomposed by time, and to tell me who this skeleton was. You must first de termine whether these scattered bones be longed to one individual. Then you must further state the sex and the age of the un fortunate being who was buried here, and tell me how many years have passed since the body was placed in this resting-place." "Nothing could be easier for my col leagues," replied Dumoutier, " and it would not have been necessary to call me to their aid if I could not do more than that. I can tell you, for example, by simply inspecting this head, what were the thoughts, the habits, the passions, the virtues, and the vices of the soul which animated it." The doctors exchanged a smile of incre dulity at these words of the anatomist. Du moutier was one of the most distinguished adepts in that new science invented by Gall and developed by Spurzheim, — a science which at that time had its warm adherents and its bitter foes. The bones taken from the excavation were carefully transported to the dining-room and

there placed upon a table; the lime and earth were deposited in the large pine box, and the medical gentlemen at once set to work before the eyes of the magistrate and the two men so carefully guarded. After a rapid examination the savants recognized that they had before them the skeleton of a woman. This woman must have been about four feet eight inches in height, and the condition of the bones indi cated that she was of an advanced age. The hair was short and yellowish-white in color. The teeth were long, and during life must have been very long. The nails, which were found intact, showed evidence of hard work. The hands were singularly small. A bourgeoise, about seventy years of age, four feet eight inches in height, with short yellowish-gray hair, formerly red, long teeth, and small hands, — such was the general description of the subject. At each of these deductions, the result of careful scientific observation, the eyes of the procureur du roi flashed. An archaeologist reconstructing piece by piece the mummy of a Pharaoh could not have felt a more intense joy than that which animated the breast of the magistrate. "It is not sufficient, gentlemen," he said, "to determine the age of the deceased; I must know the date of her death." "That is a more difficult question to an swer," replied M. Bois de Loury. " Two or three years ago I should have said that it was impossible to state accurately, but recent ex periments permit a proximate solution of the question." The conclusion of the four doctors was that death had taken place ten or twelve years before. "The cause of the death," they added, "is easily determined, since the verte brae of the neck are still surrounded by six turns of the cord. The cause was strangu lation. Any idea of suicide is inadmissible; for the turns of the cord have one direction, from the front to the back and from above to below, which indicates the intervention of another's hand, finally, in the excavation, 110|The Green Bag.|}}

the head was lower than the other portions of the body, and the limbs had been bent nearly double; so the body was buried shortly after death, before the rigor mortis had taken place." "Well, Prisoners Bastien and Robert," said the procureur, " you see : these gentlemen on coming here did not even know why they had been summoned; and in less than two hours they have already drawn a striking portrait of your victim. They have made us witnesses of your crime. To the de scription which they have given me, only the name of the victim is wanting, — that of the Widow Houet." "Wait!" interrupted the anatomist. "This name, which signifies nothing to us, I will tell you what it represented to those who knew the human being whose bones lie here before us. The woman whose head I now hold in my hands was avaricious, suspicious, and passionate. She was also exceedingly timid." These details, given by the savant Dumoutier, seemed for an instant to imbue the skeleton with life. For a moment the illu sion was so great that Robert, the man in the working-man's dress, drew back frozen with terror; a cold perspiration stood upon his brow; his teeth chattered, and he stretched out his hands as if seeking for support. They encountered an arm, — that of the short man with the green spec tacles. At this contact Robert seemed to awaken, as a man recovering from a fright ful nightmare, and he repulsed Bastien's arm with a movement of disgust, horror and hatred. Then, making a violent effort to control himself, he relapsed into a state of mournful impassibility. "The identification is overwhelming; the proof is complete," said the procureur du roi. " Gentlemen of the Faculty, I asked of you a miracle; you have performed it."

On the 13th of September, 1821, the Widow Houet, a woman about sixty-seven

years of age, disappeared from her home in the Rue des Mathurins. At the time of her disappearance she en joyed an income of about 6,000 francs per an num, having received at her brother's death the amount of 43,000 francs, and possessing, besides, property of her own. She had two children, — a son, almost an idiot from his birth, and a daughter, who, in 1813, married one Robert, a dealer in wines. From the time of this marriage a de cided misunderstanding prevailed between the widow and her son-in-law; disputes as to money matters aggravated the antipathy which the former felt for Robert, and she feared her son-in-law to such an extent that she was often heard to exclaim, " When I perish it will be by his hands." On a Thursday, the 13th of September, 1 82 1, about six o'clock in the morning, Ro bert went to the widow's house and invited her to breakfast with him on the same day. "I will go," she replied. About seven o'clock a woman, named Ledion-Jusson, who did the work about the house, arrived; the Widow Houet reproached her for being late, and a few moments afterward left the house. She wore a morning dress and a shawl; she walked rapidly, seemed excited, and talked to herself as she went along. She went down the Rue des Mathurins, and was seen in the Rue de la Harpe, near the house where Robert dwelt. About eleven o'clock Robert's wife went to seek her mother, whom she had expected to breakfast with her. At noon she again returned to the Rue des Mathurins, but the widow had not made her appearance. The next morning the Roberts were noti fied that the Widow Houet had not reap peared. Robert was alone in the house when this news came. " Say nothing to my wife," he said; " it will disturb her. I will tell her myself later." Within two days of this singular disap pearance, the news of which was so singu larly received, one Herolle received, to be handed to the woman Jusson, a letter post Causes Celebres. marked Paris. In it the Widow Houet stated that she had departed on a few days' journey with a friend; she forbade Jusson to mention this fact to any one. Another letter postmarked Saint-Germainen-Laye, came to a Monsieur Vincent, who lived in one of the two houses owned by the Widow Houet at Versailles. The tenor of this letter seemed to indicate that the widow intended to end her days by suicide. It was easy to see that these two letters were forgeries; the writing and style of expression were certainly not the Widow Houet's. There had, then, undoubtedly been a crime committed; but where? by whom? It was proposed to search the widow's house. Robert opposed this, saying that it was evi dent that his mother-in-law had not died in her house. On the 1st of October, however, a search was made; and they found in the widow's chamber six bank-notes, of 1,000 francs each, and 710 francs in gold and silver. It was not for the purpose of rob bery, then, that the crime, if there was one, had been committed. The suspicions of the authorities were naturally directed to the son-in-law. Robert had carried on successively the business of a wine-dealer and an engraver. He had been unfortunate in his transactions, and early in 1821 he had sold out his wine establishment for 1,800 francs, and it was known that be sides the proceeds of this sale and a house which he owned in Dannemoine, which was heavily mortgaged, he had no other resources, except an income of 168 francs belonging to his wife. At the time of the disappearance of his mother-in-law he was forced to seek work as an engraver. After the disappearance of the widow, who was still looked upon as only absent, Robert applied for an allowance of 1,500 francs from her property. This situation indicated a motive for the perpetration of the crime on Robert's part; while, as to any other person, the crime, not being followed by robbery, remained inexpli


cable. Besides, the authorities had, in the course of their investigations, learned of other suspicious circumstances. At the hour when the Widow Houet directed her steps towards the Rue de la Harpe, Robert had been seen by several persons standing under the portecochire of his house, looking up the street as if expecting some one. After the disappear ance, instead of being disturbed and seeking for her, he had attempted to conceal from his wife, for some time, a misfortune which he appeared at once to consider irreparable. In 1822, after a further investigation, based only upon presumptions, the inferior court decided that it was impossible to ascertain the causes of the disappearance. But while the authorities were thus at fault, the ele ments for a new investigation were accumu lating around Robert. He had left Paris early in 1822, and established himself with his wife in the house at Dannemoine. In February, 1823, he returned, and with one Veron, whom he brought with him from Dannemoine, he occupied the apartments in the Rue de la Harpe, which he still re tained. At this time there passed between him and a new personage some scenes which attracted the attention, and presently aroused the suspicions, of the police. A man named Bastien came one day to receive from Veron a note for 250 francs, signed by Robert, which had been left for him by the latter. A few days later, Bastien once more appeared, declaring that he must see Robert himself. He waited until Robert returned, when the two men shut themselves up in an adjoining room. The conversation between them presently became animated; they were evidently en gaged in a bitter discussion. Loud and threatening words reached Veron's ear. Then cries of, " Robber! assassin! " in Robert's voice. Veron hastened to his friend's aid. When he entered the room, Robert and Bastien were struggling together. The former was red in the face; while Bastien, who held him by the throat, was pale and menacing. At the sight of Veron they both I 12|The Green Bag.|}}

loosed their hold of each other; Bastien took had concealed himself at Dannemoine, he his hat and departed, muttering threats. could not avoid the inevitable; and more While Robert adjusted his clothing, Veron than once strange scenes revealed the fatal cast his eyes upon a desk, and saw there, power which one of these men exercised beside a twisted pen, a note for 20,000 francs, over the other. drawn in Bastien's favor, and lacking only a In 1827 Bastien appeared unexpectedly at signature, — that of Robert, doubtless. Dannemoine with the intention of forcing the As soon as Bastien had gone, Veron and Roberts to accept drafts for 6,000 francs. several neighbors, who had been attracted This new persecution came at a moment by the noise of the struggle, entreated Robert when Robert was preparing a new retreat to put an end to such scenes by making a for himself at Villeneuve-le-Roi. His wife had already departed to make ready the new complaint against Bastien; but Robert de clared that he had lost money at play, and house, and it would be necessary to follow that his disputes with Bastien concerned no her and bring her back to Germiny to sign one but himself. But when he was alone the exacted acceptances. The interview be with Veron, he became more confiding, and tween Bastien and Robert was a stormy one. told him that the importunities of Bastien a violent quarrel took place during the night; were becoming unendurable, and he coolly and the innkeeper, concealed in an adjoining proposed to him to entice the man into one room, heard Bastien say to Robert, — "Come now I did I do it, or did I not? " of the houses at Versailles, and kill him and "Yes, it is true," replied Robert, bury him in the garden. Who was this Bastien, and what mysteri I "Well, then, you must pay me." ous hold did he have upon Robert? For "Alas, mon Dieu! it is true; I must pay." merly a carpenter at Grenoble, he had left Robert, however, resisted until sunrise, that town in 18 19 to escape his numerous and the acceptances were not signed. He creditors, and in 1820 he lived in Paris, not then went secretly to the innkeeper, and far from where Robert carried on his wine handing him six francs said, — "Look here! there is a man here of whom business. Bastien took his meals at Robert's house; and since the disappearance of the j I wish to rid myself; he demands money of Widow Houet, the two had maintained very me which I do not wish to give him. When intimate relations. he comes down I will tell you that I have Some time after the scene which we have not a sou, and you will lend me these six just referred to, Robert and Veron estab francs." lished themselves at Versailles to superin The innkeeper declined to play any part tend certain repairs which were being made in this comedy, and told Bastien of the on the Houet houses. There Robert, on scheme invented by Robert. returning from a trip to Paris, told Veron "Ah! that is his game, is it? " said Bas that he had met Bastien, who had forced tien. " Well, tell him that there is not a bit him, holding a pistol against his head, to of straw in his house which does not belong sign notes for 20,000 francs. Veron, who to me if I choose to take it; and if neces did not know all, again advised him to make sary, I will go and install myself in his a complaint to the procureur du roi; but house and drive him out." Robert had his reasons for not enlisting jus The upshot of the affair was that Robert paid Bastien's bill at the inn, and the two tice in his behalf. He preferred flight to scandal; he sought men left the house together. These singular interviews had more than to escape Bastien. It was to attempt the im possible; Bastien knew too well the life and once awakened the suspicions of those who affairs of his victim. So, although Robert i witnessed them. In 1824 an anonymous de Causes Cetibres. nunciation had been made to the procureur du roi, in which Robert and Bastien were accused of complicity in the murder of the Widow Houet; but the absence of the corps du dclit paralyzed the arm of the law. After the scene at Germiny, Robert, who had succeeded in concealing from Bastien his retreat at Villeneuve-le-Roi, lived there in apparent security until 1832, when Bas tien suddenly reappeared. This time it was an allowance that he exacted, — an allowance of 1,200 francs annually. He was tired, he said, of wandering about the world, and wished to settle down in the country, to raise his own cabbages somewhere, — who knows? At Villeneuve-le-Roi, perhaps. Ro bert shuddered. But Robert refused; he always began by refusing. Then Bastien increased his de mands, and presented an obligation for 40,000 francs. Robert also refused to sign this paper. Then burst forth the secret which united these two men and made the one the slave of the other. "Assassin! Assassin! " cried Bastien, in a loud voice; " you wish me, then, to mount upon the roofs and cry, Robert murdered his mother-in-law! " At these words, at this terrible denunciation, Robert fled, wild with terror. As he descended the stairs he met a neighbor named Fleury, who had been attracted by the noise. "Come and get a commissary of police," said Fleury, " and have that scoundrel locked up." "No, no," stammered Robert; and rush ing up the stairs he ran to the attic, escaped by a window, and fled across the fields back of the house. A few days later, Bastien made a last effort to obtain money; and this time through an intermediary, one Gouvernant, whom he had known in prison, where he had been confined in 1824. The two men speedily became con genial spirits, and Bastien had made singular confidences to Gouvernant. Later, Gouver nant had met Bastien, who had given him to understand that Robert was at his mercy on 16


account of a common crime. After the in terview at Villeneuve-le-Roi, Gouvernant was deputed by Bastien to hunt up Robert. He departed armed with two documents, which Bastien assured him would prove irresistible, — a memorandum containing several names and addresses, and a plan of a garden, in a corner of which was traced a red cross. Gouvernant arrived at Villeneuve-le-Roi, presented Bastien's ultimatum, and exhibited the two papers. At the sight of them Ro bert turned deathly pale, his knees trembled, and he sank into a chair, murmuring, — "Ah! the wretch! the scoundrel! But when I have given him my entire fortune, what assurance have I that he will not seek my life? " Gouvernant, seeing Robert in this state of prostration, left him, making an appointment to meet him at a neighboring inn. Robert, suspecting that Bastien would be present at the interview, did not go. Bastien had, in fact, followed Gouvernant. He waited in vain for Robert, and furious at his absence he took a piece of chalk from the inn and went and wrote on the door of Robert's house, — "Robert murdered his mother-in-law! " After these scenes, which began again to awaken the attention of the authorities, Ro bert and his wife suddenly disappeared from Villeneuve-le-Roi. Exasperated beyond endurance by their flight, Bastien went to the administrators of the Widow Houet's estate, and declared that he knew her murderer, and that he was no other than Robert. This time the au thorities were fully aroused. They recalled the still unpunished crime of 1 821, and the two fruitless investigations. It was neces sary to strike promptly, for any action by the public minister would be barred by a lapse of ten years from the date of the last in vestigations, and the guilty ones had almost reached the limit fixed by law. An order was immediately issued for the arrest of Bastien, the only one upon whom the law could at that moment lay its hands. ii4|The Green Bag.|}}

Upon his person was found a pocket-book containing several important papers. First, there was the following memoran dum : — "June, 1821 — M. Robert — hired a cellar in the Rue des Deux Portes. "Rue de Vaugirard, house with a beautiful fruit garden. "Hired for 700 francs from July — lease in my name. "Received money to buy a shovel, pickaxe, and watering-pot. "Same day bought half a bushel of lime." And on the back of this memorandum : — "Plan for the destruction of the Widow Houet, for the Roberts; and it was for that that the cellar was first hired, and then the house in the Rue de Vaugirard."

September, 1821. . . . Cowards that you are, you believe that your crime is expiated. . . . But you are at the foot of the scaffold. . . ." A plan was attached to this letter, and this plan was that of the garden in the Rue de Vaugirard. In a corner a red cross marked a certain spot and called attention to it. Finally, there was a last note, which read as follows : — "The court has entered as to Bastien a decree of non lieu (no ground of process), and as to Robert a decree of non lieu quant a present. This decision is irrevocable as to Bastien, who cannot be pursued further, according to the maxim : Non bis in idem. Even if he should confess him self guilty, he need feel no uneasiness. As to him, the matter is definitely settled."

This last note explained the audacity of Bastien, his persistence and his exasperated threats. He believed himself safe. A new investigation was commenced. It was established that the house and garden in the Rue de Vaugirard had been leased to Bastien by a widow lady named Blanchard, "Rue des Deux Portes, 2 1 . in July, 1 82 1. Bastien had stated that he "Rue de Vaugirard, 81. was living in the country, and wished to re "Mme. Veuve Blanchard. side in Paris with his wife, while their chil "M. Poisson. I dren were being educated. Later, Bastien "M. Roussel. told a woman named Sanze that he had hired "M. V6ron. the house for a friend who was coming to "M. Robert at Dannemoine near Tonnerre. live in it with his daughters. There was not "M. Cherest, advocate at Tonnerre." a word of truth in either of these stories. The first of these two memoranda ex At the end of a month of these suspicious plained the second. hesitations, Bastien dismissed the gardener Bastien's pocket-book also contained some who had up to that time taken care of the rough draughts of letters, in which occurred garden; the excuse given was economy. the following expressions : — The Widow Blanchard was uneasy at seeing Notwith "Wretched Robert, it is written that you shall the house remain unfurnished. not escape the punishment of your crime. . . . standing this absence of furniture and inhab itants, there were reports of nocturnal visitors Have you forgotten the place in the Rue de Vaugi rard which guards in its breast the victim who shall and of persons walking in the garden carry accuse you? Do not believe yourself safe .' . . . ing candles; the neighbors were excited by "You and your wife are assassins. Do you not these suspicious appearances. At the end recollect the cellar in the Rue des Deux Portes? of three months, no one having appeared, the And the house in the Rue de Vaugirard? And Widow Blanchard had the house opened in the disappearance of that mother on the 13th of the presence of a commissary of police. The It was then recalled that in 1824 another mysterious memorandum had been found upon Bastien, which the authorities had suspected referred to a crime, but it was im possible to establish that fact. That memo randum was thus conceived : — The Tetnpie. next day, Bastien, having learned of what had been done, returned the keys, saying that his wife had decided not to come to Paris. While the authorities were collecting and arranging these facts, the Roberts were ar rested at Bourbonne-les-Bains. On the 1 2th of August, 1833, the trial of this mysterious case began, before the court of Assizes of the Seine, M. Hardouin pre siding. An immense crowd filled the court and its approaches, and those who had ob tained entrance gazed with awe and interest on the skeleton, which, prepared by Dumoutier, lay upon a table in the centre of the court-room, and formed the first terrible wit ness of the crime about to be revealed. The evidence developed the facts already familiar to the reader, and tended to show that the perpetrator of the deed was Bastien, who, instigated by Robert, had enticed the Widow Houet to the house in the Rue de Vaugirard, and there murdered her. After two hours and a half deliberation, the jury found Bastien guilty of murder. Robert was acquitted upon the question of participation, but was declared guilty of



iI having provoked the crime by gifts and |I promises. But to the astonishment of all, j the jury found extenuating circumstances in favor of both the accused. Upon this verdict Bastien and Robert were condemned to penal servitude for life, and to public exposure in the pillory. At the moment of passing sentence Bastien j had made a slight movement, but without ' the sjightest change of feature. However,

on being conducted to his cell, he suddenly

j turned pale and sank on a seat. On examI ination his hand was found covered with blood, and convulsively clutching a pair of scissors with which he had stabbed himself in the left breast. The wound was slight This trial had created an intense excite ment in Paris, and the verdict caused general dissatisfaction. When the two condemned submitted to exposure in the Place du Palais de Justice, the crowd which surrounded the scaffold gave vent to their indignation. "Down with the murderers! They ought to have been guillotined! They are mon sters! The law is too lenient! " Such, in fact, was the general opinion.


IT is almost a matter of regret that no where in the United States has our pro fession any institutions that can supply the benefits imparted in Great Britain by those venerable colleges of the laws, which through so many generations have kept the bar of England together, not only with untarnished honor and elevated dignity, but in delightful fellowship, and with the sense and in the power of unity. We refer, of course, to their Inns of Court. There are three principal Inns, situated not far from each other, — Gray's, Lincoln's, and the Temple. Of these, the Temple is perhaps the largest. It is situated in

the most ancient, populous, and busy part of London. Around the three sides of its site are built connectedly, and with more or less irregularity, the continuous structures which make the Temple. The outside — that is, the parts upon the street — is used for purposes of business; law booksellers, stationers, and others, who supply the con venience of the bar, being among the occu pants. It is the inner part — around and upon the square — which constitutes the resort and abode of the profession of Eng land. Turning away from the mighty stream of business life which rolls by day and night along the Strand, and entering through an n6|The Green Bag.|}}

archway that attracts no notice and reveals nothing within, you find yourself, after a short walk, within the Temple close. Here, and in the neighboring Inns, is con gregated the whole profession of London, we might almost say of England; and here every student must enter for his education. Many lawyers and judges who are without families live here entirely, having apartments, with offices and servants, more or less expensive. Some occupy " chambers " only, or " offices " as we call them, dining in the Temple Hall, where the students also dine. In this place you find the active members of the profession, whether leaders at Nisi Prius and the courts, members of Parliament, of whom a great number are always barristers, or the great law officers immediately con nected with the crown. Here, also, are those eminent chamber counsel, whose opinions settle half the concerns of London; and those law writers, perfectly known to the profes sion everywhere, whose voices, however, are never heard in court, nor their names within the " city." Besides these laborious classes, who give the place its essential impress, there are many lawyers here whose professional re lations hang more lightly upon them, — men, often very eminent, who choose to limit the extent of their professional services; or men who find pleasure in the literature of the law, those tasteful barristers " who study Shakspeare at the Inns of Court." The Temple grounds, which meet your gaze when once within its close, are beauti ful. As the reader is aware, the place was, many centuries ago, the residence of the Knights Templars; and, like Fountains, Fettey, Tintern, and other religious houses in England, it was selected and disposed by its founders with comprehensive and exqui site taste. Before you lies the Thames. On its opposite side, above, rise the time-honored spires of Lambeth, and, in the greater dis tance, the swell of the Surrey hills. The trees and walks and cloistered gardens of the Temple impress you by their venerable beauty and the air of repose which they in

spire. The "Temple Garden" makes a scene in Henry VI. (Part I. Act II. Scene 4), and the student of Shakspeare will re member it as the spot in which the distinc tive badges (the white rose and red rose) of the houses of York and Lancaster were first assumed. Here is the Temple church, a marvel of beauty, the services in which are confined to the members of the Inn, and, being thus sustained by male voices only, have a mo nastic and peculiar air. As the church comes down from the religious order of Templars, it is said to be the only one in London in which no child was ever baptized. In its aisles still lie, under their effigies of stone — mailed, sworded, and helmeted — the Knights Templars, whose crossed legs show that they were slain in the Crusades, and who, buried here eight hundred years ago, now give the Inn its name. Here, too, in later times, have been buried many members of the bar — Plowden and Selden, Sir John Vaughan, Chief-Justice Treby, John William Smith, and others — for whose memory the mem bers of the Inn have recorded their affection by enduring monuments. From the pulpit of this venerable church Hooker and Sher lock proclaimed to the assembled profession of England morality yet higher than its own; and since the days of Blow and Purcell, who were both its organists, the choral services have been better performed than in any other church in London. In another building is the Inner Temple Library. The structure is not so costly as that of Lincoln's Inn; but the collection is rich not only in books of law but in classics, history, and every kind of literature that can entertain the genius and tastes of an educated and intellectual profession. In the Great Hall of the Middle Temple, a venerable struc ture with massive tables and benches that look as if they had defied the wear of cen turies, the members and students of the Inn dine. The room is about sixty feet high. On its richly stained windows you see the armorial displays of nearly two hundred of Gossip of an old French Lawyer. the great lawyers of ancient and modern times, including among the latter those of Lord Cowper, Yorke, Somers, Kenyon, Alvanley, and Eldon. On the wainscoted walls you have the names of the Readers of the Temple, for more than two centuries back; and portraits of great benefactors. Here, too, the bar assembles for occasions of state and festivity, and for ancient celebra tions — some very curious — which are still kept up with that instinct of hereditation which belongs to no country but England. Everywhere about you — in short, in the names of avenues and walks, in the designa tion of buildings, in the objects of curiosity or interest or veneration — you have the names and associations of the law before you. The profession is here in its corporate dignity and impressiveness. It has about it all those influences which Mr. Burke thought so valuable in the structure of a State. It bears the impress of its name and lineage, and inspires everywhere a consciousness of its ancient and habitual dignity. The past is everywhere connected with the present, and you feel that the profession is an inher itance derived from forefathers and to be transmitted to posterity. While many of the members of the Inns are of course engaged away from their Inn daily, at the courts or in Parliament, and in the excitements and toils of business, here they always return as for a " higher conver


sation; " and when within the Temple close, are as completely sequestered from the mighty world of London that is rolling on without them, as though they were beneath the venerable shades of Oriel or Christ Church and looking upon the tranquil cur rents of the Isis before them. In some senses the courts themselves are subordinate to these foundations. A person is admitted to the bar, not by motion in court, as with us, but by being called to the bar by the Inn where he has studied. The Inns, therefore, and not the courts, regulate the whole subject of admissions to the bar; and having this controlling power, are in truth masters of the courts themselves. It will be readily understood from all this, that these Inns, numbering some thousands of persons, are complete communities, with laws and customs and officers. Each foun dation is governed by a small committee called Benchers, selected always from the most influential and eminent members of the profession. Every member of the bar lives under restraints in all ways professional. He is surrounded by his professional brethren, and guarded everywhere by their watchful observedness. A controlling and valuable in fluence exercises itself upon his professional life, and he could not lose his reputation at his Inn and remain at the bar at all. — Liv ingston's Monthly Law Magazine.

GOSSIP OF AN OLD FRENCH LAWYER. SOMEHOW or other the legal profession has always been considered as a fair butt for the wit of those who are jealous of its intellect or envious of its gains. The fa miliar picture of a cow pulled by the horns by the pursuer, and held by the tail at the instance of the defender, while the " lawyer " quietly fills his pail with her milk, is one whose truth to nature has been maintained,

sometimes in ignorant earnest, sometimes in conscious jest, by many writers and speakers in almost every age. But the fact that we readily forgive the satire is the best proof of its want of application; and we are never slow to welcome a joke, even at our own ex pense, if it serve to stir a little of the dust which is too apt to gather in the " purlieus" where much of our work lies. Indeed, the u8|The Green Bag.|}}

very fact of dryness and dustiness seems to provoke a thirst for fun, and we should not be far wrong in saying that our profession has been productive of a greater mass of humor and witticism than any other calling under the sun. Few people think of mak ing jokes about architects, for instance, or bankers; and if these worthies do conde scend to become facetious inter sc, they are denied the publicity which has conferred im mortality on repartees in open court. Wit and humor are alike ephemeral, and subject to the changes of times and tastes. The jokes of our Scotch ancestors, some cen turies ago, are often silly and disagreeable; while their Acts of Parliament are very quaint reading, and are often quoted for the pure purpose of amusement. Let us think of the time when posterity will go to sleep with "Punch " or " Pickwick " in its hands, and become convulsed with laughter over " Pub. Gen. Statutes, 1883." But even when humor has lost its charm as such, it retains its value as the medium by which many little scraps and fragments of' history and manners have been preserved to us. If we have any interest, then, in the former life of our profession, or if we care to glance for an idle moment at the lighter side of its daily work in past times, we shall find that humor has here and there preserved some such records for us, and has, let us hope, attained the unimpeachable result of "combining amusement with instruction." Guillaume Bouche, Sieur de Brocourt, was a bookseller of Poitiers, who also per formed certain legal functions in that town, where he was born in 1526. This man wrote a book which is little known, and, perhaps, as little deserves to be known, outside the circle of bibliomaniacs. It is a collection — of a somewhat childish and somewhat Rabe laisian character - of anecdotes and conver sations about almost everything under the sun. Only one part of it, however, has any particular interest for us, and that is a chap ter headed : " Des juges, des advocats, des proces et plaideurs."

It is as well to say, at the outset, that the author adopts a tone of caustic raillery al most throughout, so that it is difficult to gather the bent of his sober thoughts on any subject. The discussion, which is supposed to take place amid a circle of choice com panions, commences in a manner by no means flattering to the legal profession. For almost the first inquiry proposed, is why advocates should so often be called thieves! " When we call a Breton thief," one of the company remarks, " there is at least rhyme {Breton, Carron), and when we call a miller, for instance, thief, there is reason; but when we call an advocate thief, there is neither rhyme nor reason." Another of the company gives an account of a case in which he had been pursuer. "I neither lost nor won," he says, " and the case is in suspense; for although I had received a good donation in proper and authentic form and signed by the donor, the opposite party alleged that he who had given it me was not ' wise enough,' nor in his proper senses; and this being so, that he could not dispose of his property, much less give it away, and that the law forbade a man, who was not 'wise enough,' to part with his goods by donation. Thereupon I gave up hopes of my case, since we never find that a wise man will give away his property, besides the fact that there would be great difficulty in finding a man wise enough to judge whether he who had given me the gift was so, seeing that in the whole of Greece, as M. Bodin says, there were only seven wise men, and there is no evidence as to who adjudged them to be so." It is perhaps fortunate that such metaphysical litigants are rare in our day. The next story is told of a merchant who asked a painter to paint for him the picture of a horse lying on its back with its legs in the air. The artist painted the horse, but could not bring himself to depict it in such an absurd position. On delivery, the work of art was refused for this reason; but on the case coming before a judge, he turned Gossip of an old French Lawyer.


the picture upside down, and found the pur, aware that an attempt had been made to be suer liable for the price. " If I had been guile them, addressed themselves to the advo judge," says one of the company, " I should cates and punished them rigorously. Even have made him pay double, for he had two the Athenian Senate, the Areopagus, only pictures instead of one." Another story, permitted advocates simply to state the facts even sillier than the last, gives rise to an in on either side, without using any embellish teresting remark; namely, " that the office of ment to allure the judges. When the advo a good magistrate is not to draw men into cate was called, the usher forbade him to litigation, but rather to keep them out of it move the affections of the judges. And in by every means, as Cato Censorius properly order that the judges should not be diverted declared, when it was proposed in the Senate by any means from the truth, they heard to decorate the Court and Auditorium of criminal cases by night and in darkness." Rome, some proposing to construct galleries This, and the passage which follows, give so as to keep the litigants under cover. Cato us very curious ideas of ancient and mediae said it would be better to pave the courts and val conceptions of justice. "The great King passages with pitfalls and man-traps, so as to Francis was constrained to deprive accused keep the people out of them as much as persons of all assistance from counsel, seeing that their artifices only served to pervert possible." The discussion rambles in a quaint way justice. In all cases where there is a ques from point to point of the subject under re tion of fact, the parties should be heard by view, and here and there we find passages word of mouth, as is done in the Merchant which have an interest as contributions to Courts." " All ordinances would be useless," the oft-renewed questions of advocacy which said another, " if all advocates were imitators have been such favorites with ancient and of the sanctity of Parpinian, who refused to modern philosophers alike. "Does not defend his emperor, Caracalla, who was ac every one know," it is said, " that, among cused by the Senate of having massacred Geta, his brother. But nowadays manners persons of sound judgment, the fluent speak ing and eloquence of a fallacious orator are are so corrupt, says Francois Grimaudet, that there is no murderer, thief, brigand, or of no more account than the rouge of a co quette with which she adorns her face to ap robber, of whatever condition, or however pear more fascinating? Does not every one wicked, who will not find, provided he has the know that this art is nothing more than a money, an advocate who will boldly undertake deceit and a tyranny of the understanding? to plead his cause. And if he cannot make Who does not know that the Spartans re it a good one, he will make it last so long jected this art, saying that the speech of that one may despair of seeing the end of it." good men came not from art, but from the As a salutary warning to the profession, the heart; and that Socrates judged no orator to following anecdote is introduced : — be worthy of honor in a republic, no plague "A certain advocate of Milan was so cunning being more hurtful to a country than a fairthat he could make his cases last as long as he speaking orator when he made a bad use of liked. Galeazzo, Duke of Milan, hearing of this, his art, and of the sweetness of speech? " called the advocate to him, and said that he owed "One would not find so many advocates a thousand crowns to his baker, and wished to abusing the art of eloquence," says another avoid paying him just then. The advocate assured guest, " in order to conceal the truth, sur him that he need not trouble himself about it for prise the judges, or so dazzle them as to pre ten years to come, as the case would last all that vent their separating the just from the time. The ungrateful Duke, when he came to unjust, if the example of the Athenians was know the artifices of his counsel, at once ordered renewed, who, after judgment given, and the advocate to be hanged." 1 20|The Green Bag.|}}

On the subject of oaths, solemn though it. be, our author has some caustic remarks to make. There is the story of a man who held up his left hand, and, on being corrected by the judge, replied, " It is all the same, Mon sieur; I swear equally well with either." A smattering of learning follows, to the effect that the ancient Flamens were not required to swear, and that priests had been for a long time exempt. "Even in our day," it is added, " the clergy do not swear on the Gospels, and have an oath different from the common form; for they place the hand ad pestus, which was called in old French an py. The reason of all this is and was," he con tinues very sensibly, " that it is absurd to doubt the faith of those to whose hands we have confided all divine things." The great value of an oath is shown by the fact that by its means Henry of England cleared himself of the murder of the Archbishop of Canter bury, Charles VII. of the death of the Duke of Burgundy, Pope Marcellius of the accusa tion of idolatry, etc. It is only natural that in the course of the discussion, if we can dignify this old-world gossip by the name, that the freaks and sub tleties of the law itself should come under notice, as well as the foibles of its professors. Accordingly, a number of instances are given of insoluble problems suddenly presenting themselves where all seemed plain and easy, of some of those inextricable complications which, when they occur, recall the lines of Charleval on the conduct of life : — "Avant qu'en savoir les lois La clarte' nous est ravie; II faudroit vivre deux fois Pour bien conduire sa vie." There was a law in a certain country, ac cording to Bodin, which decreed that he who provoked a sedition should be punished with death, and he who appeased a tumult of that kind should receive five hundred crowns. No doubt was entertained as to the wisdom or sufficiency of these provisions until it oc curred that a certain citizen, after having

stirred up a seditious tumult, became himself the peacemaker, and restored order. Here was a difficulty! On the one side it was argued that the five hundred crowns were clearly due, as more weight should be given to his good action in calming the revolt than to his misdemeanor in raising it. The magis trates, however, entertained no such moral distinctions, but proceeded on the stern lines of fact. He had raised a sedition first, and appeased it afterwards. Let him be hanged, then, first; and when that is done, the reward will be paid on his applying for it. Another difficulty cited is that in which Augustus was placed, he having published a reward of twenty-five thousand crowns to the person who should bring him the head of Crocatus, the Spanish robber. Crocatus brought it himself, and was presented with the reward, and pardoned. But the reader may think that he has had enough of the Sieur Brocourt and his pleas antries, which, like the " motti " and " burle" of the Italians of the preceding age, are apt to pall on the modern taste. But the glimpse which he gives us of his place and time is not without its value. He brings to our view the old town of Poitiers, with its quaint and not uncultivated society; we hear mur murs of the law's delay mingled with praises of the prompt justice done by the Consuls des Marchands; we see the motley crowd of peasants and citizens moving through a maze of daily circumstance which has found no other place in the memory of the world. Through all this turmoil there move the figures of judge and advocate, the one dig nifying his natural shrewdness by a some what florid learning; the other, if these tales be true, sometimes endangering the reputa tion of his calling. But we should be glad to believe that this latter catastrophe had not so much existence in fact as in the grotesque im agination and quaint humors with which Guillaume Bouche enlivened the select so ciety of Poitiers some three hundred years ago. — Journal of Jurisprudence. Old Inns of Court Customs.


OLD INNS OF COURT CUSTOMS. THE history of the Inns of Court in days gone by, apart from its legal interest, affords us a good insight into the festive and social life of our forefathers. Indeed, the merry doings associated with these old institutions are proverbial, and many a graphic picture has been bequeathed to us illustrative of the joviality which once formed a prominent characteristic on all seasons of rejoicing. Thus it may be remembered that in the hall of the Middle Temple was per formed Shakespeare's "Twelfth Night," — a fact recorded in the table book of John Manningham, a student of the Middle Tem ple : "Feb. 2, 1601-2. — At our feast we had a play called Twelfth Night; or What You Will." As Charles Knight remarks in his " Pictorial Shakespeare," " it is yet pleas ant to know that there is one locality re maining where a play of Shakespeare was listened to by his contemporaries, and that play ' Twelfth Night.' " We read, too, how in the reign of Charles I. the students of the Middle Temple were accustomed at AllHallow Tide, which they considered the be ginning of Christmas, to prepare for the festive season, an account of which we find in Whitelock's " Memoirs of Hulstrode Whitelock." Evelyn alludes to the Middle Temple feasts, and describes that of 1688 as " very extravagant and great, as the like had not been seen at any time." Equally famous were the entertainments at the Inner Temple, — Christmas, Candle mas, Ascension Day, and Halloween having been observed with great splendor. In 1561 the Christmas revels were kept on a very splendid scale. At breakfast, brawn, mus tard, and malmsey were served; and at the dinner in the hall several imposing cere monies were gone through. Thus it is re lated how, between the two courses, first came the master of the game, then the ran ger of the forests, who, having blown three

blasts of the hunting-horn, paced three times round the fire, then in the middle of the hall. Nine or ten couples of hounds were then brought in, with a fox and a cat, which were set upon by the dogs, amidst the blow ing of horns. At the close of the second course the oldest of the masters of the rev els sang a song. Finally, after supper, the Lord of Misrule addressed himself to the banquet, which, amongst other diversities, generally concluded with minstrelsy and dancing. Many of the dinner customs of the Inns of Court are curious. Thus a banquet at the Inner Temple is a grand affair. At six the barristers and students in their gowns follow the benchers in procession to the dais; the steward strikes the table three times, grace is said by the treasurer or senior bencher present, and dinner commences. The wait ers are called " panniers," from the "panarii " who attended the Knights Templars; and in former years it was the custom to blow a horn in every court to announce the meal. The loving cups used on important occasions are huge silver bowls, which are passed down the table filled with time-honored " sack," which consists of " sweetened and exquisitely flavored white wine; " each student being restricted to a " sip." On the 29th May a gold cup of this fragrant beverage is handed to each member, who drinks to the happy restoration of Charles II. Referring to the customs once observed at the Middle Temple banquets, many of these have died out. " The loving cup," Mr. Thornbury remarks in " Old and New London " (I. 179), " once fragrant with sweetened sack, is now used to hold the almost superfluous toothpicks. Oysters are no longer brought in, in Term, every Friday before dinner; nor when one bencher dines does he, on leaving the hall, invite the senior bar-man to come and take wine with him in the Par I 22|The Green Bag.|}}

liament Chamber (the accommodation-room of Oxford Colleges). Dugdale informs us that " until the second year of Queen Eliza beth's reign, this society did use to drink in cups of aspenwood; but then those were laid aside, and green earthenware pots in troduced, which have ever since been con tinued." Amongst the old customs asso ciated with the Middle Temple may be mentioned the calves'-head breakfast which was given by the chief cook of the society to the whole fraternity, for which every member paid at least one shilling. In the eleventh year of James I., however, this breakfast was turned into a dinner, and ap pointed to be held on the first and second Monday in every Easter Term. The price per head was regularly fixed, and to be paid by the whole society, as well absent as pres ent, and the sum thus collected was divided amongst all the domestics of the house. The merry doings at Lincoln's Inn were, in days gone by, kept up with much enthu siasm; and frequent notices of the " Rev els " are given by our old writers. Charles Knight, too, in his " Cyclopaedia of London" tells us that on such occasions dancing and singing were insisted on, and, by an order of February 6 in 7th James I., it appears that " the under-barristers were by decimation put out of commons for example's sake, because the whole Bar were offended by their not dancing on the Candlemas Day preceding, according to the ancient order of the society, when the judges were pres ent." Of the social customs formerly ob served, we read that at each mess it was a rule that there should be a " moot daily; " the junior member of each mess having to propound to the rest some knotty ques tion of law, which was discussed by each in turn during the dinner. Not many years ago, too, it was the custom for one of the servants, attired in his robes, to go to the threshold of the outer door about twelve or one o'clock, and call out three times, "Venez manger." To quote a further old

custom, in the first year of Elizabeth it was ordered " that no Fellow of the House should wear a beard of above a fortnight's growth, under penalty of loss of commons, and, in case of obstinacy, of final expulsion." Gray's Inn, again, formerly had its masques and revels, when the presentation of plays seems to have been one of the chief features. A comedy acted at Christmas, 1527, written by John Roos, a student of the Inn, so offended Wolsey that its author was actually imprisoned. Amongst the many customs relating to the dining-hall, we are told that in 1 58 1 an agreement was made regarding Easter, in accordance with which the mem bers who came to breakfast after service and communion were to have "eggs and green sauce " at the expense of the House, and that no calves' heads were to be provided by the cook. In the year 1600 members were instructed not to come into the hall with their hats, boots, or spurs; but with their caps, decently and orderly, "according to the ancient orders." Gray's Inn has also been noted for its exercises known as " bolt ing," which is thus defined in Cowell's Law Dictionary, — " Bolting is a term of art used in Gray's Inn, and applied to the bolting or arguing of moot cases." Lastly, a very curious dinner-custom has in years gone by been kept up at Clifford's Inn. The society consists of two distinct bodies, — "The Principal and Rules," and the junior members or " Kentish Mess." Each body has its own table. At the con clusion of the dinner the chairman of the Kentish Mess, first bowing to the Principal of the Inn, takes from the hand of the servi tor some small rolls or loaves of bread and, without saying a word, he dashes them three several times on the table; he then dis charges them to the other end of the table, from whence the bread is removed by a servant in attendance. Solemn silence, broken only by three impressive thumps upon the table, prevails during this cere mony. — Illustrated London News. Published Monthly, at $3.00 per annum.

Single numbers, 35 cents.

Communications in regard to the contents of the Magazine should be addressed to the Editor, Horace W. Fuller, i 5^ Beacon Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities or curiosities, facetia, anecdotes, etc. THE GREEN BAG.

7'HY call your magazine useless? is the query

"" of many intelligent but unimaginative law yers. It seems hardly worth while to offer an ex planation to those who do not appreciate the intent at once; but as the phrase appears actually to trouble many of our friends, and, when quoted in the papers, has been taken to be an adverse criti cism on the merits of the magazine, it may be well here to work out an exegesis for the benefit of such querists. The chief feature of legal literature nowadays is the bewildering profusion of periodicals, all claim ing to be useful. Besides the quarterlies and the monthlies and the weeklies, general and local, which follow the old traditions of legal magazines, there has latterly sprung up a crop of weekly reporters and digests, and even of monthly text-books, which come to every lawyer's office in such quantities that shelves and tables, chairs and floor, are littered with accumulating pamphlets. And hardly a mail comes in without announcements of new periodi cals, or puffs of those already in the field; each extolling itself as more " practical " and "useful" than its rival?. Out of the whole lot, only one or two find room for anything but opinions and mono graphs. Small type, close columns, large pages, overwhelm the profession with a deluge of cases. Even the most omnivorous " dig," whose recrea tion lies in over-work, and who delights in legal dyspepsia, finally finds so steady a diet of poor print and indifferent law pall upon his wearied brain, and yearns for something from which this "useful " element is entirely banished. It is for such lawyers, as well as for the lighter- hearted and idler members of the profession, that " The Green Bag " comes into existence; and it is boldly an

nounced as being " useless," as a revolt against the depressing " practical " tendencies of the peri odical literature of the day. It offers a little toothsome literary cake and jam, to offset the heavy bread and the over-cooked meats of the legal table. It is meant to be " useless," it is " use less," it will continue to be " useless," in the sense which we have indicated; and those sadeyed recluses who are content to mortify eyes and brain with the " reporter system " and nothing else, may go their way and muddle their brains in peace. The foregoing remarks are not intended as a slur upon any of our legal contemporaries. We value and appreciate many of them highly, es pecially those which find room in their columns for a few bright notes and vigorous editorials, as well as occasional articles of interest to the profes sion. But we do maintain that lawyers are surfeited with " reports of cases," and are glad to turn from these " useful " periodicals, to something which is perfectly " useless " to them, so far as practice in the courts is concerned.

Smith v. Marrable (in verse), published in our February number, should have been credited to a little work, recently published, entitled " Lays of a Limb of the Law," by John Popplestone.

A correspondent writes as follows : — "The anecdotes related of Hon. Henry W. Paine, by Mr. Swasey, in his article on ' The Boston University Law School,' published in the February number of 'The Green Bag,' recall to my mind one or two stories attributed to Mr. Paine, which may be new to some of your readers. "One afternoon as he was riding in a Cambridge horse-car, reading a book bound in sheep, a friend remarked to him, — "' Ah! Mr. Paine, I see that you are reading law.' 124|The Green Bag.|}}

"' No, sir,' was the reply; ' I am not reading law, I am reading the last volume of the " Massa chusetts Reports." ' "On one occasion, when trying a case in court, Mr. Paine was much annoyed by the constant and apparently uncalled for interruptions of the pre siding judge. Finally he stopped short, slowly gathered up his papers, and started to leave the court-room. "' Stop, sir! ' cried the judge, angrily. ' Are you doing this to show your contempt for the court? ' "' No, your Honor,' replied Mr. Paine; ' I was retiring to conceal my contempt.' " From a prominent Philadelphia lawyer comes the following : — "I am a subscriber for the ' Green Bag,' and am much pleased with the January and February numbers. It should, and I trust will, meet with good success. "The definition of mortgagee, in the February number, reminds me of an answer I heard in my student days. The professor at the Law School of the University of Pennsylvania, in an examination on wills, asked why it was proper to attach a seal to a will, and received the answer : ' So as to bring an action of covenant upon the will.' "I enclose a legal curiosity, the product of a twelve-year-old boy of Philadelphia. "The twelve-year-old son of a member of our bar, at a visit to his father's office, borrowed the sum of twenty cents, and tendered the following document for it : — "It is to be known to all men and women of the United States that I have borrowed 20 cents of my sire on condition that my mother will pay him back. Witness: C. L. J. D." Such communications as the foregoing are just what the Editor desires, and he trusts that other readers will profit by the example thus set, and enable him to open a chatty "Correspondence" column. In our April number we expect to have an article on the Columuia Law School, written by Prof. Theodore W. Dwight, and containing illustra tions of the Law School building and library, and portraits of James Kent, Samuel B. Ruggles, Ham ilton Fish, Charles T. Daly, Francis Lieber, George Templeton Strong, and Theodore W. Dwight.

LEGAL ANTIQUITIES. Our English forefathers had to deal with " boy cotting " of an extraordinary kind, but the law seems to have been sufficient for the evil. In the seventh year of Henry III. the Archbishop of Can terbury and the Bishop of Lincoln enjoined the faithful not to sell victuals to the Jews nor have any communication with them, whereupon the king ordered the sheriffs and mayors to issue counter injunctions, and to imprison any one who refused to supply the necessaries of life. Thirteen years later the Bishop of London followed the course adopted by his Episcopal brethren, and the king thereupon issued a writ to the mayor and sheriffs of London to stop the evil. In the reign of Edward I. the Archbishop of Canterbury threat ened to excommunicate every one in the province of Canterbury who should have any intercourse with the Archbishop of York, or supply him or his servants with the necessaries of life. He was sub sequently obliged by the king and parliament to revoke his threats.

If we may believe the author of the " Mirror of Justices," who is said to have written in the reign of Edward I., there were almost as many judges as malefactors hanged in the time of Alfred. That active monarch ordained that all false judges, after forfeiting their possessions, " should be delivered over to false Lucifer, so low that they never return again; that their bodies should be banished, and punished at the king's pleasure; and that for a mortal false judgment they should be hanged as other murderers." That this denunciation was not merely brutum fitlmen appears from a list, given by the same author, of the judges executed by the king's order. In one year we are told that fortyfour justices were hanged. " He hanged Cole, because he judged Ive to death when he was a madman. He hanged Athulf, because he caused Copping to be hanged before the age of one-andtwenty years. He hanged Diling, because he caused Eldon to be hanged, who killed a man by misfortune. He hanged Home, because he hanged Simin at days forbidden." A judge at this time could hardly escape with life or limb; for, not content with hanging, Alfred maimed his judges for not maiming their prisoners. Thus, we are told, he cut off the hand of Haulf, because he Editorial Department. saved Arrnock's hand, who was attainted before him, for that he had feloniously wounded Richbold; and he judged Edulfe to be wounded, be cause the latter judged not Arnold to be wounded, who feloniously had wounded Aldens."


dense jungle, and left for several days and nights on the chance of a tiger coming that way. If he escapes alive, he is adjudged to be innocent. — Irish Law Times.

FACETIAE. The last trial by duel in England appears to have taken place in the sixth year of Charles I., when Donald, Lord Rey, was the appellant, and David Ramsey, Esq., the defendant. They fought in the Painted Chamber at Westminster. But, of course, when trial by battle or duel was abolished as part of the judicial machinery of the country, men kept it up as a mode of remedying their private wrongs; and it may be mentioned paren thetically that the last of such duels fought by Englishmen on English soil was in 1845 when Lieutenant Hankey shot Captain Seton at Browndown, near Gosport. In feudal times trials by single combat were nowhere more common than on the borders of England and Scotland. The practice was to draw up and execute a formal in denture setting forth in a schedule, and with much precision, the causes of the quarrel. The following is a specimen : " It is agreed between Thomas Musgrave and Lancelot Carleton for the true trial of such controversies as are betwixt them, to have it openly tried, by way of combat, before God and the face of the world, to try it in Canonby-holme, before England and Scotland, upon Thursday in Easter week, between the eighth day of April next ensuing, a. d. 1602, betwixt nine of the clock and one of the same day, to fight on foot, to be armed with jack, steel cap, plaite sleeves, plaite breeches, plaite socks, two boskered swords, the blades to be one yard and a half a quarter of length, two Scotch daggers or dirks at their girdles, and either of them to provide armour and weapons for themselves ac cording to this indenture." Even yet the world has not seen the last of trial by ordeal. It is still resorted to by the natives of the Garo Hills, Assam. The water-boiling ordeal is, in that region, a popu lar mode of settling disputed claims. An earthen pot, filled with water, is placed on a tripod over some sticks, which are lighted. The defendant calls upon his gods to be present and do justice. If the water does not boil within a certain time, the defendant is victorious and entitled to receive compensation as for a false accusation. In more serious cases the accused is tied to a tree in a

A famous judge came late to court One day in busy season : Whereat his clerk, in great surprise, Inquired of him the reason. "A child was born," his Honor said, "And I 'm the happy sire." "An infant judge? " " Oh. no," said he, "As yet he 's but a crier." — Splinters. A good legal bon mot was that of the late Baron Alderson. A friend who complained that Grant, author of " The Great Metropolis," in his sketches of Parliament had published some statements con trary to truth, added, '• What could one expect from a man who in early life had been a servant?" "Of course," replied the witty Baron; " formerly he used to lie in livery, but now he lies in Grant? An equally happy jeu iVesprit was that of Rich ard Lane, Q. C, on the Munster Circuit. When the coach conveying the Munster Bar and their luggage from Killarney to Cork was descending the steep pass of Keim-an-eigh, the heavy luggage on the roof got loose, and caused the coach to stop until secured. " Take a purchase on this strap, Pat," said the coachman to the guard, " and tighten it well." " If you don't secure it by purchase" said Richard Lane, " you '11 have it by descent." One rainy day in Cork, while Judge Perrin occu pied the bench, he caused one of the windows of the court-house to be opened, which allowed some wind and rain to reach the bar seats. A barris ter, John S. Townsend, placed a handkerchief, not of the most unsullied hue, on his head; and as he rose to address the court, the judge remarked : "Mr, Townsend, it is not respectful of you to ad dress the court with that soiled handkerchief on your head." " I '11 take it off, my Lord," replied Townsend, " when you direct the window over my head to be shut." " Tis better for me," replied the judge, " to consult my health than your ap pearance. Go on, Mr. Townsend." 126

llie Green Bag.

A witness to a fight between some carriers draw ing turf from a bog was asked what the wit ness was doing when the fight began. He said, "Fencing with others on the side of the road." Judge Ball, who was presiding, at once looked surprised, and asked, "Fencing! with what?" "Spades, my Lord." " Mr. Bennett," said the judge, addressing the leading Crown Counsel, " can this be true, — fencing with spades on the road? " "Quite true, my Lord; but the man was making a fence along the side of the road with the spade." Baron Foster, also, quite mistook the meaning of an Irish account of a bloody affray in which a witness swore " that Mick Doolin gave the beaten man a wipe of his chalpccn [a formidable blud geon] and laid him on the grass." When charg ing the jury, the Baron called their attention to the humane conduct of one of the prisoners, Michael Doolin, who tenderly laid the injured man on the grass and wiped his wound with a clean napkin. Chief Baron O' Grady, afterwards Lord Guillamore, was a great humorist. His brother, Darby O'Grady, asked him if he could prosecute some thieves for stealing his turnips under the Timber Act. " I think not, Darby," replied the Chief Baron, " unless, indeed, the turnips were sticky" Considerable noise prevailed in the court-house in Tralee, and the Chief Baron observed that the sheriff, instead of preserving order, was intently reading a book. At last, when the uproar was in tolerable, the Chief Baron exclaimed, " Mr. Sher iff, if you allow this noise to go on, you 'II never be able to finish your novel in quiet." The larceny of a pair of trousers by a boy be ing fully proved, despite the character for honesty which was produced, the Chief Baron's charge was brief: "Gentlemen of the jury, you have heard the prisoner is an honest boy, but he stole the breeches." A very clear case of highway robbery being proved, and a verdict of " Not Guilty " returned, the angry Chief Baron asked, " Is there any other charge against this honest man? " On being told that there was not, the Chief Baron said, " Mr. Gaoler, as I 'm leaving Tralee on my way to Cork to-day, don't discharge this man until I have half an hour's start of him on the road."

Daniel Ryan Kane, Q. C, late County Court Judge and Recorder of Cork, was very entertain ing, and said good things. An action on a policy of insurance induced the company, who resisted the payment on the ground of fraud, to send a brief to the son of the doctor who was to give evidence to the bad health and habits of the de ceased. On seeing the young barrister for the first time, a member of the circuit asked Mr. Kane, "Is he a special counsel? " " No," replied Kane, "he 's counsel by prescription." Walking one day he met Joshua Clarke, Q. C, with the breast of his coat much torn. Kane instantly thrust his stick into the torn coat, exclaiming, " Rents are enor mous! " On which Clarke promptly replied, "Well, you can't say it is rent in arrear." A case was waiting for argument in the Queen's Bench in which a very prosy Queen's Counsel, Mr. Scott, and Mr. Holmes were retained. On seeing Mr. Scott, the Chief Justice called on him to pro ceed. " I really must ask your Lordship's indul gence," answered Mr. Scott; " I have now been speaking for three hours in the Court of Exchequer, and I need some refreshment." " Of course, Mr. Scott," said the Chief Justice; and Scott left the court. "Now, Mr. Holmes," said the Chief, "you have not been speaking for three hours in the Court of Exchequer; so we 'll be happy to hear you." "Oh, my Lord, I beg to be excused; I am very tired too," replied Mr. Holmes. " Why, what has tired you? " asked the Chief. " Listening to Mr. Scott," was the answer. The following bon mot of Baron Alderson deserves to be recorded. When asked, " What use were the javelin-men who accompanied the High Sheriff to escort the judge into the Assize town?" the witty Baron, replied, " I really don't know, unless to help me charge the Grand Jury." — Pump Court.

In a case, not long since, an honest farmer was complained of for maintaining a nuisance in the shape of a piggery, the neighbors claiming that said piggery was detrimental to their health. At the trial the rustic gentleman argued his own case, and summed up as follows : " The neighbors say, your Honor, that hogs is unhealthy; I say they ain't. Look at me; ain' t 1 healthy I"' The appli cation of his argument was, naturally, somewhat different from what he intended. Editorial Department. Is it correct to speak of a sick lawyer as an illlegal man? A disciple of Coke, in Charleston, S. C, when asked by a " brudder" to explain the Latin terms "de facto " and " de jure," replied : " Dey means dat you must prove defacts ob de case to de satis faction ob de jury." An elderly lady insisted on taking her will with her, instead of leaving it in the care of her attor ney who had drawn it and who was afraid that she might lose it. The lady persisting, however, her legal adviser finally said : " I will, of course, com ply with your request; but remember, madam, ' where there 's a will there 's a way,' but don't make a.-way with your will."

In a Western case the learned counsel for the defence attempted to disqualify an important wit ness on the ground that he was an idiot The court, however, thought it proper to examine the witness in order to ascertain his mental condition, and asked a few questions regarding the nature of an oath, which were very intelligently answered. The learned counsel was nonplussed for a mo ment, but finally turned to the witness and asked : "Who made you? " In a drawling tone the answer came, " I suppose Aaron made me." "There, your Honor! " cried the counsel, tri umphantly, " you see the man is an idiot. He was undoubtedly coached as to the answers to the questions put to him by the court; but my brother on the other side did not anticipate the question I asked him." "Will your Honor allow me to ask the learned counsel a question?" piped up the attorney for the plaintiff. "Proceed, sir." "Who made you 1 " demanded the attorney, turning to the counsel for the defence. Imitating the expression and tone of the wit ness, the counsellor replied, — "I — suppose — Aaron — made — me." "Well," continued the attorney, addressing the court, " I have always understood that once upon a time Aaron made a calf; but I did n't suppose that the critter had got loose and ivandered into this court-room."


"Witness, did you ever see the prisoner at the bar?" "Oh, yes, very frequently. That is where I got acquainted with him."

Did it ever occur to you why a conducting a disputed will case is performer in a circus? Did n't! cause he flies through the heir with fees. — Splinters.

lawyer who is like a trapeze Well, it is be the greatest of

A New York lawyer tried jumping from a rail road train running at the rate of fifty miles an hour. Strange to say, he did not move for a new trial.

A well-known Boston lawyer was about start ing for his office one morning, his " green bag " under his arm, when he noticed a colored butler standing bareheaded on the steps of a house near by, arrayed in a dress-suit. On inquiry, the coun sellor learned that the " cullud gemman " was ac customed to come out of the house every morning, arrayed in his " regimentals," in order that the servant-girls might have an opportunity to admire his " manly form." Thinking that his parlor-maid might like to see the show, our legal friend called to her, " Maria, come and have a look at the distinguished colored individual opposite; " when his little daughter, who had heard him, cried out : "Oh, papa, why should she want to see him? She is not a black Maria / "

NOTES. A French journalist has counted up the laws passed in France since the Revolution, and arrived at the total of about 200,000.

The new Law School of the University of Min nesota has opened with very flattering prospects. About sixty students are now in attendance. A Moot Court has already been established by Pro fessor Pattee, the energetic Dean of the School; and the course of regular daily instruction under his personal charge is supplemented by lectures on special subjects by Judge Pierce, W. D. Cornish, C. D. Kerr, and other able lawyers. 128|The Green Bag.|}}

Mr. Choate, in a recent meeting of the bar, describing the qualities of the late Chief-Justice Chase, placed common-sense as the first quality of a great lawyer, just as Baron Jomini declared that moral courage was the first quality of a great gen eral. He is credited with saying : " There is many a man at the bar bewailing his slow prog ress, because he, without knowing it, is too cun ning, or too learned, or too pushing, or too eloquent, or too glib, in proportion to his common-sense; while he who has common-sense enough to man age these qualities cannot have too much of them to be useful, nor, if he have also that honor which commands confidence, can he well fail of success." It might be added that there are judges who would go into conniption fits at the idea of substituting common-sense for some of the crooked, gnarled, and antiquated technicalities of the law.

Is there anything in the grave doctrine of cy pres of a heady nature, like champagne, that tends to produce friskiness in the court and bar? A cen tury ago Lord Hardwicke held a bequest made by Elias Paz, a Jew. for the education of youthful Israelites in the mysteries of the Talmud, to be void by the law of England, as supporting a religion not countenanced by that law; but as the bequest showed a charitable intent, the legacy was applied by cy pres to the support of the very religion the testator had aimed to subvert; and " his Majesty, by his sign manual, was graciously pleased to give the fund towards supporting a preacher, and to in struct the children in the foundling hospital in the Christian religion" — a pleasant surprise for Elias if he had known of it.

A recent case in a neighboring State has sus tained as valid a charitable bequest " to be used discretionary by the acting selectmen of B. for the special benefit of the worthy, deserving, poor, white, American, Protestant, Democratic widows and orphans residing in B." To aid interpretation, testator added : " I also will that not one of my connections shall have a dollar; also not one of my wife's connections shall have a dollar. No partiality among friends." The court wrestled manfully with the testator's adjectives, even " Dem ocratic widows and orphans " not staggering it. These it apparently held to have inherited the poli

tics of the lamented husbands and fathers, as it rather unkindly defines an "orphan" as one "ex tremely young, without character, religious belief, or political principles; " and a similar lack seems im plied, though not expressed, as to the widows.

In Marsh v. Means, 3 Jur. n. s. 790, where a fund had been given to support the " Voice of Humanity," a dumb-animal paper, which had be come mute for lack of needful (pecuniary) wind, the counsel for the next of kin, resisting the charity, gravely conclude : " At all events, if it is to be exe cuted cy pres, the intention being to benefit wornout horses, donkeys, etc., the nearest approach to a literal carrying out such an intention would be to give it to the testator's next of kin; " to whom accordingly it was given.

A singular case of mistaken identity occurred in respect of one of the victims of the Whitechapel fiend. The murdered woman was identified by a Mrs. Malcolm as her sister. Mrs. Malcolm said that both she and her husband had had dreams or visions of the death of the sister at the hour when the deceased was murdered. She testified to a remarkable series of coincidences between her sis ter and the deceased. " They were thus summed up by the coroner, at the inquest, October 23 : ' Both had been courted by policemen [this, how ever, is not a remarkable coincidence]; they both bore the same Christian name, and were of the same age; both lived with sailors; both at one time kept coffee-houses at Poplar; both were nicknamed Long Liz; both were said to have children in charge of their husband's friends; both were given to drink; both lived in East End common lodging-houses; both had been charged at the Thames Police Court; both had escaped punishment on the ground that they were subject to epileptic fits, although the friends of both were certain that this was a fraud; both had lost their front teeth; and both had been leading very questionable lives.' " Notwithstanding this re markable series of coincidences, notwithstanding the remarkable vision of Mrs. Malcolm and her hus band, and notwithstanding her positive testimony that the deceased was her sister, it was clearly shown by other evidence that such was not the fact. Editorial Department.


The phrase " too thin " is generally regarded as j said : " Supposing we take the law which the gen an instance of American slang, and is supposed to tleman has quoted, and which in a philosophic find its proper place only in works devoted to that sense has been abrogated as null and void since now important branch of philology. In support of the birth of our Saviour, and see what the logical this theory one occasionally sees newspaper stories deduction would come to. For example, one man obviously manufactured for the purpose of ex kills another, another man kills him, and so on plaining the origin of this expression; and it has until we come to the last man on earth. Who's even been called in the English press, " a notable going to kill him? He dare not suicide, for that Americanism." same law forbids it. Now, Deacon," said the boy, The truth is, it has a most reputable English " what are you going to do with that last man?" paternity, having been used by Lord Chancellor The boy's logic called out rounds of applause, and Eldon, in an opinion delivered in the case of Pea vanquished the deacon. That boy is now Chief cock v. Peacock. The point under discussion was Justice of the Supreme Court of the United States, whether " partnership, without any provision as to Melville W. Fuller. its duration, may be determined without previous notice." The eminent jurist decided that the ques Joseph G. Parkinson, of Chicago, is said to be tion was one for the court and jury to act upon, and summed up his opinion in these words : " I the only deaf and dumb lawyer in the country. cannot agree that reasonable notice is a subject He is associated with his twin brother, who does too thin for a jury to act upon; as in many cases not share his disabilities. When Mr. Parkinson juries and courts do determine what is reasonable was twenty-three years old, he was chief examiner notice." Here the expression was applied in what in the Patent Office at Washington, a place he we term its slang sense. — American Notes and held for six years. In 1879 he resigned, and soon afterward was admitted to practice before Queries. the United States Supreme Court. He now ranks as one of the most successful patent lawyers in the Survival of the Fittest. — The Legislature of country. — New York Sun. Maine, a few years since, passed a law for the prevention of cruelty to animals, in one section of which it was provided that societies for the pre "If the judges of the Supreme Court of the vention of such cruelty " may destroy old, maimed United States would refuse to do circuit duty, and and disabled horses and other animals; " while attend exclusively to the duties of the Supreme in another section it was provided that the word I Court, as they have the right to do, they could ' animal ' as used in the Act, " shall be held to in dispose of many more cases each year, and the clude every living creature." docket would soon decrease in the number of cases continued over from term to term. Short opinions would work a great reform in this court. The " Up- River News " gives the following rem Every surplus word should be removed from the iniscence of an incident in an Oldtown, Me., lyceum, opinions of this, the greatest and most important forty years ago, to which all the ministers, doctors, tribunal on earth." — Chicago Legal News. and lawyers of the town belonged. One evening capital punishment was the question under discus sion, and called out the best forces on both sides. The first volume of the " Oxford Dictionary " During the evening a young boy who had been a has been published in London. The aim of the constant member replied to Deacon Rigby upon work is declared to be " to furnish an adequate this question. The deacon was for hanging. The account of the meaning, origin, and history of Eng boy opposed. Said the deacon, quoting from the lish words now in general use, or known to have Mosaic law, " Whoso sheddeth man's blood, by been in use at any time during the last seven hun dred years. It endeavors (1) to show, with re man his blood shall be shed." Thinking this to be a bombshell to his oppo gard to each individual word, when, how, in what nents, he dwelt upon it, and until his time had shape, and with what signification it became Eng expired, when the boy sprang to his feet and lish; what development of form and meaning it i30|The Green Bag.|}}

has since received; which of its uses have, in the course of time, become obsolete, and which still survive; what new uses have since arisen, by what processes and when; (2) to illustrate these facts by a series of quotations ranging from the first known occurrence to the latest, or down to the present day, the word being thus made to exhibit its own history and meaning; and (3) to treat the etymology of each word strictly on the basis of historical fact, and in accordance with the methods and results of philological science." The first vol ume, which deals with the letters A and B only, contain 31,254 words in 1,240 pages. In John son's Dictionary, A and B occupied 127 pages.

The Dallas Bar Association is to be congratu lated on its flourishing financial condition. We give the report of its treasurer, Judge Philip Lindsley, or rather that portion relating to the finances. It certainly is good enough to be preserved. "My last report as treasurer showed there had been received and disbursed by me, for the four years preceding that date, the sum of two dollars and fifty cents. "During my last term of office of some three years, which expires to-day, I have not received nor dis bursed a single cent. Consequently, my final report to you, as treasurer, upon the finances of the associa tion, is necessarily brief. "The original membership fee, as fixed by our by laws, was five dollars. No member ever paid this but the first president, Colonel Leake; and when soon after, by .a change in your by-laws, the membership fee was fixed at two dollars and a half, Colonel Leake promptly called upon the treasurer to refund him the half of what he had paid. Colonel Leake will do me the justice to say that I never told this on him until he had solemnly announced that he would not be a candidate for re-election. No single member has ever yet paid the fee of $2.50. I feel it due to my self to state this, because it is also due from each member of the association but one. Estimating our original membership at about one hundred, the ori ginal fees yet unpaid amount to two hundred and fifty dollars. Add interest thereto for seven years at three per cent per month, the prevailing rate of in terest at the time the contract was made, and you have the neat sum of eight hundred and eighty dol lars in the aggregate, or ninety dollars for each member, ready at any time to be paid into the treas ury, whenever it is in need of money. I may, I trust, be allowed to indulge in some pride in leaving the financial affairs of your association in so healthy a condition.

The anomalies to which our system of appeals sometimes give rise are illustrated by Judge Sey mour D. Thompson, of St. Louis, in a recent ac count of a Missouri case, where a man described as a phenomenal criminal is said to have had three trials, four appeals, and one writ of error to the Supreme Court of the United States on the usual Federal question. That great court, by a majority of five to four, reversed the decision of the Su preme Court of Missouri, reversing at the same time an intermediate appellate Court and the trial Court, and rendering a decision which actually presented the spectacle of five judges overruling thirteen upon a question which all of them had considered. The result was that this scoundrel, after putting the State of Missouri to untold ex pense, received the rites of the Church and died outside the jail like a decent Christian. The decision of the Supreme Court in the Mat ter of Zeph (50 Hun, 523), that civil death is not enough to justify the issue of letters of adminis tration, probably puts a quietus upon the ancient common-law doctrine of civil death. Since the unfortunate convict is no longer dead for the pur pose of preventing him from inheriting property, or being served with process, or testifying as a wit ness, or having letters issued upon his estate, it seems almost uncivil to call him dead in any sense. If he is, he is "a pretty lively corpse." — Daily Register.

Utecent 2Deart)0. Sidney Bartlett, LL.D., the oldest member and acknowledged leader of the Suffolk Bar, died at his residence in Boston on March 6. Mr. Bartlett was born in Plymouth, Feb. 13, 1799, and was therefore a little over ninety years of age at the time of his death. We hope in our April number to give our read ers a sketch of the life of this remarkable member of the legal profession, accompanied by an excel lent portrait. Hon. C. W. Goddard died at Portland, Me., on March 9. He was born in 1825 in Portland, graduated from Bowdoin College in 1844, and from the Harvard Law School in 1846. He was the first attorney of Androscoggin County, and Editorial Department. served from 1854 to 1857; he was a State Senator in 1858 and 1859, and President of the Senate in 1859; Consul-General at Constantinople from 1861 to 1864; Judge of Cumberland County Superior Court from 1868 to 1871; Postmaster of Port land from 1871 to 1884; Commissioner for the Revision of the Statutes of Maine from 1881 to 1883; Professor of Medical Jurisprudence in the Maine Medical School since 1872, and was chairman of the Police Commission of Portland in 1885. He leaves a widow (the daughter of ex-Gov. Anson P. Morrill), three sons, and two daughters. Mr. William Hours, for many years a wellknown lawyer of Boston, died suddenly of apo plexy at his home in Brookline on the 9th of March. He was a native of Waltham, where he was born July 11, 1819. For a number of years he resided in Roxbury, and was in the Common Council during the last two years of that city's ex istence as a separate body from Boston, 1866 and 1867. The next two years he was an active mem ber of the Common Council of the City of Boston, when Mayor ShurtlefT was at the head of the muni cipal government. George W. Nichols, for twenty-seven years assistent clerk of the Supreme Judicial Court for the County of Suffolk, Mass., and for thirteen years clerk of the Supreme Judicial Court of Massa chusetts, closing his labors Jan. 1, 1888, died at Amherst, N. H., March 11. He leaves a wife and one daughter. Congressman Richard W. Townshend, of Illi nois, who died March 9, was a native of Mary land, and born April 30, 1840. After receiving his training in the public and private schools, he removed to Illinois, and taught school there. He then began the study of the law, and was admitted to the bar in 1858, and commenced practice. He served as clerk of the Circuit Court of Hamilton County five years, and from 1868 to 1872 he was prosecuting attorney for the Twelfth Judicial Dis trict of the State. In 1864 and 1865, and again in 1874 and 1875, he was a member of the Illi nois State Democratic Committee, and was a dele gate to the National Democratic Convention at Baltimore in 1872. He was elected to the Fortyfifth Congress and succeeding sessions till his death.


Judge G. R. Barrett died, March 9, at the age of seventy-three years, at his home in Clear field, Penn. He was appointed by President Pierce in 1856 to codify the revenue laws. He served as Judge of the Twenty-fifth Judicial District continu ously for eighteen years, when he resigned. Hon. John A. Campbell, ex-Justice of the United States Supreme Court and Assistant Con federate Secretary of War, died at his home in Baltimore, March 12, aged nearly seventy-eight. He regarded his success in the great " State " case, as it is called, the States of New York and New Hampshire v. Louisiana, as the triumph of his legal life, as it established his view of the rights of the States under the Constitution. Judge Campbell was considered one of the greatest lawyers in the United States. He was certainly a most accomplished advocate. He con fined himself to powerful argument, and never in dulged in declamation. His clearness of statement and the force and precision of his language were remarkable. His manner was above the common order of forensic delivery. His wit was not genial or playful, but sarcastic. It is related of him that being asked by a young attorney of New Orleans, not distinguished for his talents, whether he (Judge Campbell) had any objection to the attorney join ing in a great case at that time conducted by Judge Campbell-and other eminent lawyers, he answered : "Most certainly not, my dear sir. provided you do not appear on my side."

REVIEWS In an article on " Solicitor and Client " in the Canada Law Journal (March 1), the author ad vances the following remarkable statement : " Law yers are like other men, and are liable to form an extravagant estimate of the value of their services, and sometimes may think themselves deserving of and justified in accepting from their clients gifts over and above their legal fees for services rendered." We had supposed the profession to be particu larly modest in this respect. In fact, it has been our experience that the lawyer who succeeds in get ting even his legalfees is generally more than satis fied. However, if there are any dissatisfied ones who feel that they are deserving of more than their 132|The Green Bag.|}}

innate modesty allows them to charge, thev will find some well-timed words of caution in the article above referred to. The decision of the Supreme Court of Massa chusetts in the case of the Watuppa Reservoir Company v. City of Fall River, seems to have aroused an unusual interest in the subject of "great ponds " among the profession. Follow ing upon the heels of the able discussion of the subject in the December number of the Harvard Law Review, by Messrs. Brandeis and Warren, comes an article in the February number of that same periodical, by Hon. T. M. Stetson, of New Bedford, in which the writer takes issue with the dissenting opinion of a minority of the judges in the case, and consequently with Messrs. Brandeis and Warren. This subject of " great ponds " is a deep one, apparently inexhaustible and certainly not dry. The Jurist. — The March number of this inter esting periodical contains, besides its very readable Notes, a paper upon the " Law of Landlord and Tenant." " Mr. Barrable's Will," " Notes on Stephen's Commentaries," " Professor Dicey on the English Constitutions," are the other leading articles to be found in it. The Legal News (Montreal) is one of the brightest and most welcome of our exchanges. Every number has something in it well worth the reading, and its reports of cases are well selected and not too voluminous. "Contract and Consideration in Roman Law," by Ernst Freund, is the leading article in the Feb ruary number of the Columbia Law Times, in which the author considers the standing of the classical Roman law in reference to what we call consideration. Professor Dwight's "Junior Lec ture Notes " are continued, and contain much of real practical use to the profession. The Magazine of Poetry : a Quarterly Review. The first number of this new aspirant for public favor is exceedingly attractive in form and make up, and is profusely illustrated with portraits of many of our best-known American writers, includ ing Walt Whitman, John Boyle O'Reilly, and Anna Katherinc Green. The poems of the different au thors are well selected; and altogether the maga

zine is well worth the having, and will doubtless receive a cordial welcome from the lovers of poetry. BOOK NOTICES. Reports of State Trials, New Series. Vol. I. 1820 to 1823. Edited by John Macdonell, M. A. Eyre & Spottiswoode, London, 1888. os. It has long been a matter of surprise and regret that the reports of State Trials, which in Howell's well-known collection extend to the year 1820, have not been continued to the present day; and Mr. Macdonell is to be congratulated on his determination to carry on the good work. This first volume, although covering a period of only three years, contains nearly 1,450 pages. Among the trials reported, are those of Sir Francis Burdett, for publishing a seditious libel; Henry Hunt .et al., for conspiracy: John Knowles, for unlawfully making and selling arms; James Morris, for the same offence : George Dewhurst, et al.. for unlawfully assembling and causing people to go armed to a public meeting; Andrew Hardie. for high treason; George Edmonds et al.. for sedi tious conspiracy : Queen Caroline's claim to be crowned; Mary Ann Carlile, for blasphemous libel. The reports of the trials are very full, both as to evidence and arguments. The volume is attractive in form, and the price so reasonable as to bring it within reach of every member of the profession. General Digest of the United States. Vol. III. For year ending September, 1S88. The Law yers' Co-operative Publishing Co., Rochester, N. Y., 1888. $6.00. This series of annual Digests gives the decisions of the principal courts in the United States. The present volume embodies many improvements over the first two of the series, and certainly seems to leave nothing to be desired. It is arranged under well-tried classification, with ample cross-references, indexed even within paragraphs, so that any desired point can be found in an instant. It also contains a table of Cases criticised, distinguished, overruled, or reversed. It is a work no lawyer can afford to be without. A Treatise on the Law of Bills of Exchange. Promissory Notes and Checks (adapted from the English work of his Honor Judge Chalmers). By Wayland E. Benjamin, A.M. Second Ameri can Edition. Callahan & Co., Chicago, 1889. S3. 50 net. This is a most admirable work for students as well as for the practising lawyer. Fifty pages of new mat ter have been added to the text, and the latest cases

in all the States upon the subject will be found cited. The

Vol. I.

No. 4.




April, 1889.

SIDNEY BARTLETT. SINCE the days of Simon Bradstreet, who was Governor of Massachusetts in his ninetieth year, our State, and doubtless our nation, has seen no such example of a life prolonged far beyond the ordinary term of years allotted to man, and yet retaining its mental and physical activity to the last, as that of Sidney Bartlett. Scarcely two months have passed since his tall vigorous form was seen upon our streets, and in the ripeness of his intellectual vigor he stood in his place within the bar of the Supreme Judicial Court, and argued a case with a clearness of utterance and a profoundness of thought which might well be envied by any of his associates. And yet he was then ninety years old. Certainly in this respect he was unique in the legal profession, not only of this country but of the world. Sidney Bartlett was born Feb. 13, 1799. He was the son of Zaccheus Bartlett and of Hannah, his wife, and was a native of Plymouth, in this State. He was a lineal descendant of Robert Bartlett, who came to Plymouth only three years after the first settlers set foot upon the famous rock. In his character were readily discovered those sturdy traits which so distinguished the Puritan settlers of New England. At the early age of nineteen he was grad uated at Harvard College. Among his class mates were Rev. Samuel Barrett, D.D., Prof. G. R. Noyes, and J. H. Ashmun, who were known to the past generation of Bostonians. Hon. Francis Brinley, of Newport, Rev. Warren Goddard, and Rev. F. A. Farley of his classmates still survive. After graduation he studied law with Hon. 19

Lemuel Shaw, and in due time was admitted to the bar. He was at once taken into partnership with his instructor, and the two were associated together until the partner ship was necessarily dissolved by the appoint ment of Mr. Shaw to the exalted position of Chief-Justice of the Supreme Judicial Court. Mr. Bartlett early became one of the lead ers of the Suffolk Bar, and for many years was recognized by the Supreme Court of the United States as one of the ablest, if not the ablest, of the distinguished lawyers of the qountry who argued causes before that tribunal. He was thoroughly read in the literature of his profession, and, as a legal reasoner, grasping legal principles and apply ing them to the facts of the case in hand, he was without a superior in this country. His preparation of a cause was absolutely ex haustive of all that was germane to the questions involved. He seemed thoroughly to enjoy, as well as to master, the subtlest legal logic; but he rarely allowed his sound judgment to be obscured by any subtlety, however refined. He was terse, and seized upon the strong points in his case with an intuitive mental touch which enabled him to press them with immense power. He did not treat the minor considerations with neg lect, but he considered them subsidiary. He did not allow them, as is sometimes the case, to weaken the force of his argument. Judge E. Rockwood Hoar has said of him : "It has always been the habit of his mind to perceive with absolute clearness the principles upon which the decisive questions of a case must turn, and to confine his argument closely and 134|The Green Bag.|}}

master spirits put the mark so high that it is only just within their reach. But the day when he shone was when he came to argue the questions of law. His way of disregarding ramifications and cutting at the root alone was something never to be forgotten by those who heard him. Chief-Justice Shaw once said to Mr. Bart Allegiance to the law was the master pas lett, when he was arguing a case : " If you sion of his life. He loved the brotherhood, would state your line of reasoning a little and was foremost in all that tended to main more fully, Mr. Bartlett, we should like to tain its usefulness and uphold its character. have you. Your mental operations are so In all the high qualities essential to the rapid that others do not sometimes see thorough exposition and successful applica the connections between your premises and tion of legal principles, — clear perception, conclusions so readily as you do." Senator searching analysis, inexorable logic, scientific Hoar once said of him that " his processes precision of thought and statement, a con of reasoning bore about the same relation vincing and cogent style, and an unerring to those of ordinary lawyers that logarithms and imperturbable practical sagacity, — he bear to common arithmetical processes." Engrossed as he was in the law, he touched was without a superior, if not without a rival. These great gifts did not disdain, but were life at many other points. He enjoyed the always reinforced by, the most elaborate, pleasures of life to a great degree. In his exhaustive, and painstaking preparation. In early life he was extremely fond of fishing. deed, for such preparation he had a positive Before Martha's Vineyard became a fashion genius, and of many of his triumphs in the able resort, he used, for many years, to go forum it might be truly said that they had there with his close friend Judge Curtis, on been already won in his study. As an advi account of its attractions as a fishing place. ser and administrator in the most important He was eminently social, fond of young and intricate affairs, he was consummate; people, and of hearing of their doings and and his services in this respect were as in knowing of their ways. Simple in his tastes, valuable and successful as were his more he yet enjoyed the higher pleasures of the brilliant and conspicuous achievements at table, and wherever there was good conver sation he held up his end. His reading was the bar. One incident related of Mr. Bartlett was not confined to the law. He enjoyed history, of such a character that it ought to be biography, the sciences, and, above all, the impressed upon the minds not only of all novels of the day. He was kindly constituted, lawyers, but also of all literary men, of just, and fair-minded on all questions of poli artists, and, in fact, of every one who aspires tics, religion, and law, and on all questions of to do a superior piece of work in the world. the day; he was always ready to hear all "Once," said the friend of Mr. Bartlett who sides. He was capable of being convinced told the story, " I saw him, at the end of against his will, which all men are not. a long evening's labor, throw into the fire a Mr. Bartlett was a member of the Massa chusetts Legislature in 185 1. He was also bundle of manuscript, his brief in a very im portant and difficult suit, saying, ' There a member of the Constitutional Convention goes the third brief that I have made in this in 1853. Of the others who represented case.' " An ordinary man thinks when he Boston at that time, Hon. Francis Brinley, has made one conscientious effort that he ex-Mayor F. W. Lincoln, and Hon. Henry J. need require no more of himself, but the Gardner, afterward Governor of the State, strictly to these. Capable of great labor, never losing his equanimity and self-possession, never worrying, he has followed the course in life which he had chosen with a devotion, an ability, and a success so remarkable that his practising law to the age of ninety with scarcely abated vigor makes him one of the most conspicuous figures among his countrymen." Early Legislation against Fraudulent Conveyances.


are the only survivors. In 1858 Harvard * upon legal questions after he was seventy. The wonderful preservation of Mr. Glad conferred upon him the degree of LL.D. Most of his eminent professional contem stone's mental powers has often excited poraries have passed away. Chief-Justice comment, yet Mr. Bartlett, who retained his Shaw was one of them. Benjamin R. Cur mental vigor to the last, was his senior by tis, a brilliant lawyer with whom Mr. Bartlett ten years. often crossed swords and with whom he was The extraordinary length of Mr. Bartlett's socially intimate, and who died when he was career is forcibly brought home to the minds sixty-five, was another; and others were of the legal fraternity by the fact that while Franklin Dexter, who passed away at sixty- he was at the bar the membership both of four; Webster, who reached only his seventy- the Supreme Court of the United States first year; Jeremiah Mason and Chief-Justice and of the Supreme Court of Massachusetts Theophilus Parsons, who lived to the age was twice renewed. Moreover, only two of eighty and sixty-three, respectively. Had members of our present Supreme Court had Rufus Choate lived, he would have been even gone so far as to be born when Mr. about the same age as Mr. Bartlett. Horace Bartlett began to practise. Binney is probably the only distinguished On the 6th of March, 1889, this wonderful lawyer who survived to a greater age than life came to its close. The happiest of us that reached by Mr. Bartlett. He lived to be can hardly hope for a destiny so complete ninety-five, but retired from active general and fortunate as that which has just been practice when he was fifty-six. He argued fulfilled. We shall be fortunate enough if the famous Girard will case in the United we shall have learned to look into the face States Supreme Court when he was sixty-four, of fate and the unknown with a smile like but refrained from giving written opinions his.




TT 7E are permitted to give to our readers V V the following extract concerning preElizabethan legislation touching fraud, from the second volume of Mr. Melville M. Bigelow's work on Fraud, now in the press : — "The earliest statute worthy of particular notice, which deals directly with fraudulent conveyances, is of the year 1376-7; that is, about two cen turies before the more famous statutes of Eliza beth. In that statute, which is in Anglo-French, the Commons pray that, whereas divers persons, as well heirs of tenements as others, borrow money or goods of many people of the kingdom, and then give all their tenements and chattels to their friends, by collusion of having the profits thereof at their pleasure, and then betake themselves to Westmin ster, St. Martin, or other privileged places, and there live in great state ( ' contenance ' ) on other goods



in manner aforesaid, so that their creditors shall be greatly put to it to get a small part of their debts on releasing the rest, and then the debtors re turn to their houses and have back their tene ments, goods, and chattels at their pleasure by assent of their said friends; and by reason of such frauds and collusions many persons of the kingdom are very sorely grieved, and some en tirely destroyed; therefore the Commons pray remedy by a writ of debt against the occupiers of such tenements and chattels, or other suitable remedy. In answer the King wills that if it shall be found that such feoffments were made by col lusion, the creditors shall have execution on the said lands as before, as if no such feoffments had been made. "A statute of similar type, of the reign of Henry the Seventh, follows, after an interval of a century and more, by which time statutes had come to as |The Green Bag.|}}


sume a more familiar and formal style. This one * recites in English that, where (as) oftentimes deeds of gift of goods and chattels have been made to the intent to defraud creditors of their duties, and the person that maketh the said deeds goeth to sanc tuary or other places privileged, and occupieth and liveth with the said goods and chattels, their credi tors being unpaid, it is ordained that all deeds of gift of goods and chattels, made or to be made of trust, to the use of that person that made the same deed, be void and of none effect. "This second statute, it will be noticed, appears to supplement the first; that one, notwithstanding the prayer, relating only to conveyances of land. This second statute, too, brings into prominence what is but matter of inference before, to wit, that trusts were obnoxious as being fraudulent devices for avoiding ' duties,' as debts were called; and from this time on, until modern times, trusts are looked upon by the courts of law as a convenient cover for fraud. The fact is brought out again in the Statute of Uses, a. d. 1535. The statute re cites that while lands, tenements, and heredita ments ought not to be transferred but by solemn livery, yet divers imaginations, subtle inventions, and practices have been used, whereby heredita ments have been conveyed by fraudulent feoff ments, &c, to secret uses, intents, and trusts, by occasion of which heirs have been unjustly dis herited, and lords have lost their wards, marriages, &c, it was enacted that he who had the use in lands conveyed should henceforth stand and be seised thereof; an enactment which, it need hardly be said, was at once evaded by the technical trusts of modern times. "From this time on, the trusts that fall under the condemnation of the law — for the courts con tinued to reprobate trusts as much as ever — were the untechnical trusts, generally speaking, arising from the retention of possession, or the secret reser vation of benefits, by a vendor of property con veyed, to outward appearance, absolutely. ' Here was a trust between the parties,' it was said in the leading and most famous case on the subject; 1 ' for the donor possessed all and used the goods as his own, and fraud is always apparelled and clad with a trust, and a trust is a cover of fraud.' "All this, and more, by way of statute and statu tory intimation before the Elizabethan legislation. Hut the existence of the earlier laws began to fade 1 Twyne'a Case, 3 Coke, 80.

from memory in an age when letters were not greatly cultivated; the fact itself in course of time turned to a tradition; and the tradition soon for got its ground. So it seems; and this, in con nection perhaps with the old unwritten law of deceit, which, however, was a very different thing, is probably the foundation of the modern belief that the statutes of Elizabeth were only declara tory of the common law. Indeed, in this country, familiar English statutes, passed before the separa tion, are in some cases spoken of as part of our common law. "It is easy, then, to see how the earlier of the two statutes of Elizabeth (13 Eliz. c. 5), relating to creditors, might be considered as little if anything more than a stringent, though not exhaustive, declaration of the old law, as being common law, and also to see how belief should come to be acted upon as founded upon fact. In regard to the later of the two Elizabethan statutes (27 Eliz. c. 4), relating to purchasers, the case is different. There is indeed the suggestion of the Statute of Uses, — ' scantly any person can be certainly as sured of any lands by them purchased,' -— but the only remedy given is annexing the seisin to the use. But doubt is removed by a case decided only about ten years after the passage of the statute, — a case which fell without the statute.1 The Com mon Pleas adjudged in that case that if a man makes a lease for years by fraud, and afterwards makes another lease bona fide, but without fine or rent reserved, the second lease should not avoid the first lease; for it was agreed that by the com mon law an estate made by fraud should be avoided only by him who had a former right, title, debt, or demand. And to make the matter still plainer, the court add that even he who hath right, title, in terest, debt, or demand more puisne (later) shall not avoid a gift or estate precedent by fraud by the common law.2 "From this it appears that there was neither stat ute, to which the rule of liberal construction could be applied, nor common law, to reach the case of a purchaser having no precedent right; and what has been said shows also how far and in what sense it is true that the legislation of Elizabeth was declaratory of the common law. Were it not for the intimation of Lord Mansfield, or from the fact behind that intimation, the expansiveness of 1 Upton v. Basset, stated in 3 Coke, 83. 1 22 Ass. 72. Early Legislation against Fraudulent Conveyances.


the common law, the conclusion could scarcely be equity had existed prior to the statute, and had not doubtful, — the common law took care of the rights been taken away by it; the statute had only given of creditors; for purchasers it had no help. But a more clear and extended remedy.1 Again, it is held in some States that where a debtor, in fraud a hundred years ago Lord Mansfield, in some re spects a hundred years ahead of his time, thought of his creditors, pays for property and procures that the principles of the common law, as then the title to be made to another, the transaction is understood, were such towards fraud as to have not within the statute of 13th of Elizabeth,9 but enabled it to attain every end proposed by the two that equity will treat the transaction as invalid on statutes of Elizabeth; 1 and if that was a somewhat common-law grounds.3 sanguine statement, it was a very good prophecy, "Nor have the courts of law in like recent times assuming the later growth of the common law gen stopped with asserting the common-law jurisdic erally to be fair evidence of what would have tion; they too have acted upon the assertion both proved to be its expansiveness in dealing with the in England and in this country.4 In the case first kind of fraud under consideration. cited an information had been filed on behalf of "It is not necessary to take Lord Mansfield the Crown, praying the benefit of a judgment of narrowly. By the ' common law ' he probably did outlawry and that a certain deed by the outlaw not mean the law administered in the courts of might be set aside as fraudulent and void against law alone and unaided, though he was ever draw the Crown. This was a matter clearly without the ing equity that way. The common law as a whole, statutory law; but the jurisdiction was sustained as whether administered by courts of law or courts of being founded upon the common law. equity, would meet the requirements of society, — "Thus stands the case of fraudulent conveyances that was probably his lordship's meaning; if not, apart from the statutes of Elizabeth. It js believed the statement was too wide even as a prophecy. that upon this evidence one cannot go far wrong in Modern equity, in the technical sense, has certainly asserting that where statute, liberally interpreted, had its share in establishing a common-law doc fails, a remedy still exists by the common law ' as trine in regard to fraudulent conveyances, and that now understood ' (in the language of Lord Mans in cases beyond the reach of jurisdiction at law in field), whether by a suit at law or in equity, for every case of ' endeavor to alter rights by wrong any view. "One or two illustrations may be given. A man fully evading the law in a matter in which the per named Attwood executed a voluntary mortgage to son to be wronged is not a party.' 5 And that his sisters to secure a past debt, and was allowed may have some special significance for the newer to retain the title deeds to enable him to give a States of the Union, and for the Territories, and for first mortgage to a creditor who was pressing him yet newer and remoter lands in which the Englishwith suit. Attwood deposited the deeds with this speaking race is planting itself, where legislation creditor, but afterwards, without the creditor's con may be wanting or imperfect; for it is to be remem currence, obtained them again, and with them made bered that the ' expansiveness of the common law ' a mortgage to the plaintiff, without notice, for a sum means not only growth from a germ, but adapta larger than the amount due to the sisters. On a bility of the growing principle to new surroundings question of priority, it was held that the sisters and to new systems of government. America has must be postponed to the plaintiff. The case fell attested this on a scale large enough." without the statute of 27th Elizabeth, unless the 1 Hcrrick v. Attwood, 2 De G. & J. 21. theory of the ' equity of the statute' could be in 3 Edmonson v. Meacham, 50 Miss. 34; Crozier v. voked. This the court was inclined to apply; but Young, 3 T. B. Mon. 157; Gowing v. Rich, 1 Ircd. 553. Lord Cranworth declared that if the case did not

  • Edmonson r. Meacham, supra.

4 See e. g. Richards r. Attorney Gen., 1 2 Clark & F. fall within the statute at all, so that the sisters could not maintain ejectment for want of a legal title, 30; Iludnal v. Wilder, 4 McCord, 294. 5 The author's definition of Circumvention, a term that would not affect the case. The jurisdiction of including, inter alia, fraudulent conveyances, under 13 Eliz. c. 5. 1 Cadogan o. Kcnnett, 2 Cowp. 432, 434. 138|The Green Bag.|}}

LIVING IN THE ideal chamber life in London is, of course, to be found in the Temple or any other of the law inns. The kind of ex istence passed by the inhabitants of these hospitia is unique. The young freshman in stalling himself in college rooms feels a de licious sense of independence take possession of him as he surveys the tiny domicile in which for a year or two he will play the host and petty king according to his own free will. But his will is not really so free, after all. He comes to find, although these college days make the greenest memory in any man's life, that inside the precincts of a university a young fellow has to surrender a consider able portion of his liberty, and is, in some re spects, more under authority than if he were within the paternal mansion. The young student at Paris, flitting in and out of his mansarde in the Latin quarter, is indeed about as irresponsible a creature as the spar row nestling in the walls of the house; but next week his garret may be the abode of a market porter or a milliner. His quarters have not been reserved through centuries for the occupation of educated bachelors, and he may be turned out of them at any moment at the mere caprice of the landlord, who comes monthly for his rent. The Inns of Court and Chancery, however, are the great republic of bachelordom. Dat ing from the days when monkery flourished in our land, they have survived that monastic system, and in themselves preserve all the characteristics of what may be termed lay monasticism. Within the walls of these buildings, once you are admitted as a tenant, and provided you will pay the rather exorbi tant rent, you are free to live in whatever manner of single blessedness you may choose. You are a High Church-man; fit up one of your rooms as an oratory if you like, and your neighbor who practises an esoteric Buddhism will not quarrel with you, or even take the trouble to find out what you are

CHAMBERS. about. You are a somewhat sceptical Bohe mian; on Sunday morning throw open your window and enjoy your dressing-gown, cigar, and " Observer," while the " blessed mutter of the Mass " and the sweet choir strains from the adjoining church waft themselves to your ears. You are free, if such is your mind, to enjoy the music in this fashion, and read the theatrical news while the clergyman delivers his discourse. You may keep a servant or servants to wait upon you, or you may, like a good independent gentleman, require no more assistance than the laundress can render in half an hour daily. You black your own boots with Nubian blacking; you become an expert at omelettes, and even venture at times to cook cosey little suppers for two or three. Generally, however, your eating is all done outside, in the restaurants. There are six or seven very respectable places of the kind, so near that to step out to any one of them is hardly more trouble than to walk downstairs to one's ordinary private dining-room. No con ventionality governs your hours. Rise when you please; there is no household to consult. Dine when you please; there is no cook in your establishment to mutter about joints be ing burned, and sauces wasted, because the master has not returned in time. Stay out as late as you please; the night porter is paid for nothing else than welcoming you with a civil smile at four or five in the morn ing, and is not likely to give warning because you keep him out of bed so long. Your abode is twenty times safer by night than any West-End mansion, for it is well walled in, and no burglar can pass the sentinel at the gates. No rumble of traffic disturbs your sleep. Your rest is as secluded as that of a friar in his cell. Is not all this the very ideal of liberty and bachelor bliss? To-morrow you may wish to start away for Switzerland or the moors. Your bag is packed; you call a cab, and slam your double doors behind you, perfectly as sured that all your goods and chattels are Chambers. safe till you return. Diogenes, even, was not so unencumbered; for had he gone to Swit zerland he would have required to take his tub with him. The peculiarity of this Utopian bachelorland is that you can pass so readily across its frontier into the big world. In Oxford or Cambridge you cannot breathe any but scholastic air. Here you take but a couple of steps, and out of an atmosphere filled with the past, you turn into the exciting din of Fleet Street, alive with echoes of the mo ment from all quarters of the earth. In meditative mood you may pace about the Temple precincts in summer moonlight, — nunqnam minus solus quam cum solus, — and people its hoary courts with fitting figures of the many departed great, whose lives, so to speak, have been built into its walls. Then, by way of a rousing contrast, lounge round the corner, with slippered feet, into the office of some friendly editor, and listen to the click of the telegraph machines, and the gossip bandied among the leader writers waiting for subjects, and you will realize to the full the sense of delightful anachronism that gives lives in any of these ancient inns so piquant a flavor. The West-End man of fashion, living in a gorgeous suite of rooms near St. James's Street, might as well be the guest of a hotel. . The walls of his abode are not clothed with associations stretching back through generations. We write these lines at an open window, immediately outside which is a hall sur mounted with a quaint clock and bell. Be yond the hall is a quadrangle richly carpeted with mossy grass, and studded with a dozen leafy trees, sleepily rocking a few sharpvoiced sparrows on their branches. On the other side of this foliage the red-tiled roofs of a building as old as the Charleses shine with a mellow and cheerful softness in the warm sun; and immediately beyond these roofs, again, one can see against a blue sky the massive mullions and numerous turrets of a large ecclesiastical-looking building de signed in the Lombardo-Gothic style. Any


painter sitting in our seat could produce a picture that might be taken to represent an exquisite work in some old-world cathedral town. Yet the ecclesiastical-looking building is not a cathedral, but the London Record Office, — a fine structure hidden away from the sight of most people. Under the red-tiled roof dwelt George Dyer, and thither Charles Lamb wended his way many a time to enjoy chat with the worthy bibliophile. The same red roof covered the office of the clerks of the Marshalsea Prison; and it has been said that from the room occupied by these worthies emanated more misery than from any other room in the metropolis. It was of our own quarter of this beauti ful Inn of Chancery that the old gentleman at the Magpie and Stump, in " Pickwick," tells the strange ghost stories; and Charles Dickens loved the place well. This little inn, with a whole history of its own, is as modest as it is delightful. Standing at the back end of a passage leading from Fleet Street, it obtrudes itself so little on the passer-by that not one Londoner in a hun dred knows of its existence, and many a cab man will be found to confess that he does not know it by name. In such nooks it is that men grow into confirmed old bachelors. Like Elia, they "hang posterity," and love an tiquity more and more. We will not say that a long life altogether spent like this is well spent. Human sympathies are apt to become musty and wither if they are too long subjected to the test of such isolated exist ence. A few years of chamber life, for any thoughtful man in his youth or prime, will probably do him more good than harm. But too long experience of its loneliness tells on the character. Further, a man past his best is subject to actual calamities attendant on this loneliness. It is only recently that a distinguished baronet retired to his rooms in the Temple one evening, and next day was found in bed lifeless. He had passed away in the lonely darkness, with no human ear to hear his dying groan. And such cases are

far from uncommon. — Irish Law Times.


By Seymour D. Thompson.

Nothing strikes the intelligent layman with more astonishment than the way in which lawyers reason when they are called upon to decide a new question. They do not reason at all; but they begin to hunt back through the old musty books to find some analogy on which to decide it. They go back to year-book times, at least to the times of Coke and Bacon, to find if some judge has not decided some similar question, thereby making a rule for us to follow in the full blaze of the nineteenth century. If these lawyers would read history instead of law, it would perhaps make this habit less frequent.

England in the time of Coke and Bacon had probably less than three million inhabitants. Its roads were nearly impassable during most of the year, so that intercommunication was extremely difficult. The city next in size to London was Bristol, and London had more than twenty times the population of Bristol. Carriages mired in the mud in the principal streets of London. Pedestrians jostled each other and fought for the wall, so that to "give the wall" is still a figurative expression in our language. Where ducal palaces now stand, there were then open squares covered with ashes, dumpings of all kinds, offal thrown out from kitchens, dead dogs, dead cats, and the like. Even the nobility ate with their fingers, as the Turks do yet. Forks were first introduced from Italy in the reign of Queen Elizabeth. The island was in a state of constant political and social turmoil. The highways in the immediate vicinity of London were unsafe by reason of highwaymen. The northern border swarmed with bandits scarcely more human than our Apache Indians. The indifference to human life was something that we can scarcely understand now. The brutality of the judges absolutely justified the expression of Shakspeare, "Your hungry judge will hang the guiltless rather than eat his mutton cold." Torture was still practised; and the last prisoner was put to torture in the Tower of London in thevyear 1640, the year the celebrated Long Parliament met. Prisoners were still tortured in Scotland at a later day; and the Duke of York, when governing that portion of the island during the reign of his brother Charles the Second, was accustomed to gratify his ferocious and detestable nature by having prisoners tortured in his presence. Old women were tried on the charge of being witches and found guilty by the verdicts of juries and put to death, even in a court presided over by a judge as enlightened and humane as Sir Matthew Hale. A prisoner was not allowed counsel, because no barrister was allowed to speak against the King. Trial by battel was customary, on the fantastic theory that God would not suffer the wrong to prevail; and it has been but seventy-one years since this relic of barbarism was abolished. Blood flowed for political offences. Atrocious and cruel penalties were annexed to crimes of a minor character. The stealing of a chicken was a capital felony.

In fact, our ancestors of those days were barbarians, not as far advanced as the Bulgarians of our own time. When, therefore, we have a new question of law to study, why should we go back and try to find what the opinion of Lord Coke, whose infamous prosecution of Sir Walter Raleigh can never be forgotten, was on the question? Why should we try to find what Sir Francis Bacon, who bought and sold justice, thought about it? Why, in short, should we not stop rummaging the old books and do a little thinking for ourselves? Our ancestors in their day did their parts as well as they could, with the light they had and amid such surroundings as they had. But, as compared with us, they were barbarians compared with the civilized man. In intellectual stature they were children compared with the moderns.

Columbia College Law School.


COLUMBIA COLLEGE LAW SCHOOL, NEW YORK. By Prof. Theodore W. Dwight. rFvHIS institution came into existence I about thirty years ago (Nov. 1, 1858). It was considered at that time mainly as an experiment. No institution resembling a law school had ever existed in New York. Most of the leading lawyers had obtained their training in offices or by private reading, and were highly sceptical as to the possibility of securing competent legal knowledge by means of professional schools. Legal education was, however, at a very low ebb. The clerks in the law offices were left almost wholly to them selves. Frequently they were not even 20

acquainted with the lawyers with whom, by a convenient fiction, they were supposed to be studying. Examinations for admis sion to the bar were held by committees appointed by the courts, who, where they inquired at all, sought for the most part to ascertain the knowledge of the candidate of petty details of practice. In general, the examinations were purely perfunctory. A politician of influence was not readily turned away. Few studied law as a sci ence; many followed it as a trade or as a convenient ladder whereby to rise in a political career. 142|The Green Bag.|}}

There was, however, a considerable num ber of the profession, men perhaps who had been trained in law schools elsewhere, who strove to improve this condition of things. They had been, however, thwarted in a variety of ways. The tradition still lingered that a lawyer merely held an office, instead of being a member of a learned pro fession. All the early lawyers had been ad mitted to practice by the mere mandate of the governor, without any examination as to professional ability or training. More than a hundred of these appointments still exist in the records of the State, in the Sec retary of State's office at Albany, running through a period of seventy years just pre ceding the American Revolution. They are simply letters patent, appointing a specified person an attorney at law, with authority to appear and practise " in all his Majesty's courts of record," or perhaps only in some specified court. Though this method dis appeared at the organization of the State, the idea lying at the root of it prevailed long after the State government was formed. The mass of the public regarded the pro fession of the law as a legalized monopoly. Politicians determined to sweep this last feature out of existence; and accordingly in the State Constitution of 1846, a clause was inserted (Article Six, Section 8), that "any male citizen of the age of twenty-one years, of good moral character, and who pos sesses the requisite qualifications of learning and ability, shall be entitled to admission to practise in all the courts of the State." This clause required no special mode of training, no attendance in a law office, no period of time devoted to study. Any per son, no matter how ignorant of law or litera ture, could present himself for examination as to his moral character and as to his learning and ability. The examination was held by sporadic committees, appointed by any one of eight sections or divisions of the Supreme Court, each composed of a distinct set of judges, administering, as was said by a highly distinguished lawyer, " octagonal law." If

the examination was satisfactory to the com mittee, which was a law unto itself, the candidate was admitted to practise as an at torney and counsellor at law in all the courts of the State. The questions asked were for the most part trivial. Little knowledge of the great principles of law was called for or exhibited. Sometimes the examination re sembled a screaming farce, as when some pretentious negro, having a full vocabulary of words at command, but with the most scanty knowledge of their meaning, submit ted himself to the scrutiny, or more accu rately to the mercy, of the examiners. If the candidate were rejected summarily, he had only to wait for a time, perhaps change his residence to another judicial division where the examination was understood to be even more lax, and try the temper of a dif ferent set of examiners. He might thus go the round of the districts and commence anew. No regulation required, after his re jection, any additional period of study. Mat ters were not much better before the new Constitution. As the writer of this article came to the bar in 1845, he is able to state from personal experience that admission could be had even under the old regime from a committee of leading lawyers by a successful answer to a single and narrow inquiry. This was on what morning of a particular week in the term of the Supreme Court a specified motion should be made, the day being fixed by a rule of court. If .this was the outcome of a bar examination under a court of three judges, headed by Judge Nelson, afterwards of the Supreme Court of the United States, it may be. con ceived what it must have been under the eight-branched court of the Constitution of 1846, and its ever-changing committees of examiners. This system, or rather no system, prevailed when the Columbia Law School commenced its existence (Nov. 1, 1858). There had previously been some lectures delivered, under the auspices of the College, by the distinguished Chancellor James Kent, to Columbia College Law School. such students as chose to hear him. That great jurist was compelled, under the consti tution of the State as it then existed, to retire from the high judicial office upon which he shed such enduring lustre at the compara tively early age of sixty. He was then in the full maturity of his powers. It is unques tionable that the State, by rejecting his services at the time when they were most

valuable, sustained a most serious check to what may be fitly called the classical development of its jurisprudence; for Kent was truly manysided. He was a fine classical scholar, a great student, a most persuasive and lucid writer, accustomed to broad lines of thought, in character most ad mirable, and wholly unaffected and genu ine in manners, as befitted a man of emi nent ability. He held judicial office for more than twenty-five years (from 1797 to 1823). His fitness for the po sition of Professor of JAMES Law had long been observed by the Trus tees of the College; for they offered him the post in 1 793, while he was at the bar, and again thirty years later, in 1823, when he retired from the bench. His reasons for acceptance are well and somewhat pathetically given in the preface to the first volume of the first edi tion of his Commentaries. He says: "This renewed mark (in 1823) of the approbation of the Trustees of the College determined me to employ the entire leisure in which I found myself in further endeavors to discharge the debt which, according to Lord Bacon, every man owes to his profession. I was strongly


induced to accept the trust from want of occupation, being apprehensive that the sud den cessation of my habitual employment, and the contrast between the discussions of the forum and the solitude of retirement might be unpropitious to my health and spirits, and cast a premature shade over the happiness of declining years." Fortunate was he in the fact that the day of his retire ment from the bench was the commence ment of the brilliant career as a legal author for which he will be chiefly and most fa vorably remembered. The lectures of Chancellor Kent in the course of four years had developed into the first two vol umes of his Commen taries, the second vol ume being published November, 1827. Kent did not, how ever, succeed in estab lishing a law school or department in the College. He may not have made the effort'. His course of lectures was personal to him KENT self, and he left no successor. Some of his lectures have not been published, not from want of merit, but because they did not apparently form a part of a complete system. His Commentaries as they stand are imperfect as Commentaries on American Law, since they do not include torts, crimi nal law, administrative law, or procedure. There is evidence that his plan embraced at least some of these topics. As far as can be now ascertained, he simply read lec tures to his hearers. He held no examina tions, had no regular course of study, and held no moot courts. No degrees were con 1 44|The Green Bag.|}}

ferred by the Trustees on his students. He had no associates in instruction. There was, consequently, no Law Faculty. He was simply a professor reading a course of lec tures. He held his hearers to attendance by the excellence of his expositions and the corresponding interest aroused in themselves. They paid him the respect due to his talents and the reverence due to his virtues. The writer speaks positively upon these points, from the information supplied to him by one of his students, no longer living, a man of great ability and spotless character. After his retirement, the Trustees of the College filled their law professorship by the appointment of William Betts, Esq., a highly esteemed member of the New York Bar. It is not known that any courses of lectures were delivered by him. It is certain that none were when the existing Law School origi nated. His relations to legal instruction were then purely nominal. He was active and earnest in promoting the organization of the Law School as it now exists. In fact, in 1858, the City of New York was, so far as legal instruction is concerned, unbroken and virgin ground. The memory of Chancellor Kent, as a lecturer, had practi cally died away. He was without a succes sor anywhere, not merely in the College, but throughout the city. Even thinking men, who believed in schools of theology and in colleges of medicine, had little or no faith in schools of law. The law was deemed for the most part to be a collection of " modern in stances," to be found in the late reports, rather than a science to be mastered by the process of deduction from great and lead ing principles. Some praiseworthy attempts had been made to establish courses of lec tures; but all had failed, as they were founded on erroneous methods. It was not without misgiving, it may be not without trepida tion, that a new effort was made to cultivate ground apparently so unpromising. The beginning of the Law School as it exists at present is now reached. It is un fortunate that most of the members of the

Board of Trustees who were the most active in promoting the foundation of the Law School are not now living. The writer is alone cognizant of many of the leading facts. Some of them are very deeply imprinted upon his memory, as the result of contro versies, now extinct, in which he partici pated. Others are the memorials of the sacrifices and toils of a lifetime, — for it is not allotted to many to devote thirty years of unremitting and at times exhausting labor to a single institution, — labor of the kind which is the lot of pioneers, and yet is not without its recompenses. While he may appear in the course of this article to be open to the charge of egotism, still, by rea son of the special circumstances of the case, he begs the indulgence of his readers. The foundation of the Law School by the Trustees of the College, in 1858, was part of a more general scheme. Columbia College, having, by reason of an increase in value of its real estate, a large accession to its means, resolved to offer to the public a post-graduate course of instruction, with a view, if there ap peared to be a public desire for such a course, permanently to establish it. The whole plan was tentative or experimental. Four distinct courses of lectures of this class were then established : one on Philology, in charge of that distinguished scholar and statesman, the late George P. Marsh; a second by Dr. Francis Liebcr, a standard writer upon topics of Political Science and of Interna tional Law, then a professor in the College; a third course on Ethics, by Professor Nairne, also of the College; and a fourth on Muni cipal Law, by Theodore W. Dwight, then Professor of Law in Hamilton College, New York, in which institution there was at the time a flourishing Law School. These courses were all entered upon at the rooms of the Historical Society, at the corner of Eleventh Street and Second Avenue. The first three of these courses, though thoroughly well-manned, did not seem to meet a public want, and after languishing for some time were discontinued. Columbia College Law School.


As to the courses of lectures in law, the interest of the student must be aroused. outcome was different. An experience of a Young men come to the study of the law few weeks showed that there was a clear from a great variety of motives, and these public desire for instruction in law, and it are often mixed. Some choose it as an was resolved by the authorities that a two avenue to wealth; others to political prefer years' course should be established; and from ment; others because business is stagnant, that time to the present moment there has and because it is better to have some occu pation rather than to remain idle; others

been no lack of students. still, because their fathers recommend or The methods of instruction then estab direct it; and others, lished have continued, finally, because the in substance, down to ladies of their choice the present time, with insist upon it as a such enlargements condition precedent to and modifications as the relief for which experience has shown they sue. In more to be beneficial. than one instance the The central idea in writer has been made instruction has always aware of this last re been this : The stu quirement, stated in dent is assigned daily a certain portion of the imperative mood, an approved text-book with the further con for his reading prior dition that the final to listening to expo examination shall be sitions of the subject most creditable. He involved. To make is happy to add that the assignment effec the youths won the tive, he is asked ques prize in the contest tions upon the topic, nobler than the Olym mainly to make it cer pian games. Few pur tain that he has stud sue the study of the ied the subject and law in the jubilant has in a measure com spirit of Lord Coke, HAMILTON KISH. prehended it, and is and simply follow " the thus in a position to gladsome light of jur listen with advantage to expositions. 'This isprudence; " for, let it shine as it may, there is a prime element in legal as well as other are too many brambles and thickets about it instruction, since experience shows that the to make the distant and obscured light at first mere reading of lectures to students upon attractive. Even when the better students ap an unfamiliar subject is of but little value, proach the study of the law, they are frequently and that the impressions made are eva in a condition of benighted perplexity. They nescent. The expositions are for the most are confronted by an uncouth and unknown part oral and in familiar language. Perti language, yet in the highest degree precise nent illustrations are resorted to, and every in its meaning. They are apt to transfer the available means adopted to awaken attention popular meaning of words to those used in and arouse interest, as a stimulus to future the technical sense. In every direction they research or inquiry. Nothing is more cer need an earnest and determined leader who tain than that, in order to make progress, the will not merely inform, but also encourage and 146|The Green Bag.|}}

stimulate them. If this be true of the better students, it is far more so with those of the inferior grades. There is regularly a class of inefficient young men hanging about the skirts of every large institution, who desire the credit of being members, yet are not willing to do the work which the rules of the institution require. Others who are well meaning and faithful in attendance are men tally slow or even sluggish, and need a spe cial treatment. An institution which does not take due care of all these classes and see that they attend faithfully to their duties, only partially fulfils its mission. For these various purposes, it is of prime importance that regular attendance should be secured, and that the professors should know, by rollcall or otherwise, whether the students at tend or not. Many who in the outset are remiss in this respect become constant when they become interested. It is extremely difficult to arouse interest unless attendance in the beginning is compulsory; after a time they will begin to relish that which at first they treated with indifference or even with dislike. There is no doubt an opposing theory in education, which holds that attend ance in the so-called University courses of study in the higher institutions should be voluntary. This method may suffice for a certain class of students. They are the few, the picked men. These need no care, no watching. But the larger number will be occasionally absent or inattentive, yielding to slight indisposition or other plausible but insufficient causes. But as the topics in law are continuous, not one unnecessary absence should occur during the entire course. To borrow a phrase from James Harrington, students " should be driven like wedges," with a regular and unceasing pressure. Some remarks recently made by Sii Fred erick Pollock (the distinguished author of the work on Contracts), who has had great experience in legal education, are well worth quoting. He says : " Education is a difficult art; not the least of the difficulties is to make boys and young men do things which

they would not do of themselves, and of which they cannot at the time understand the value " (Nineteenth Century, February, 1889, p. 289). This thought must not be merely apprehended; it must be firmly grasped and made effective in legal as well as other educational training. It is particularly essential in the New York Law Schools to insist upon actual and regular attendance, since by a rule of court, an attendance in a law school not exceeding a fixed period can serve as a substitute for a corresponding time of clerkship in a law office. The attendance is to be shown by the certificate of the Dean or Warden of the Law School; and this, of course, cannot be conscientiously given without authentic evi dence at his command establishing the fact to be certified. The writer is well aware that other sys tems of legal instruction are warmly advo cated by law instructors of great ability and experience, and pursued with much success. One of these is well described in an article in the first number of this magazine. Much can properly be said in favor of it, particu larly in reference to the superior class of students. But it is not to be forgotten that there exists and always will exist in the pro fession of the law a great and important class of men of average ability, who fill most re spectably and usefully the humbler avenues of professional life. These men must be trained as well as those of superior powers. During the course of their educational train ing they thrive best with daily leadership and constant suggestion and stimulation. While it is not conceded that the alternative method is better for any students, it seems clear that it is inferior to true teaching in its effects upon those of average powers. Again, it is worthy of remark that the methods pursued in the Columbia Law School closely connect themselves with col legiate training. Graduates of the Colleges find substantially the same methods of edu cation in use here to which they have been already accustomed. They traverse the field H7 of law, and obtain an outline of its principles. It is the business of their later lives to fill up this outline with detailed knowledge, partly worked out by the exercise of their reason ing powers, which have been constantly called into requisition, and partly by the examina tion of adjudged cases. They are in a posi tion in which they can profit by such studies and trace the line of adjudication from its

original sources. It seems to be a wise and natural method in the study of other sciences to obtain an accurateoutline before crowding the mind with details. Why not in law? It is not out of place in this connection to refer to the chosen methods of acquiring the Roman law, both as sanctioned by great jurists and by impe rial authority, after an experience continuing through centuries. It cannot be denied that the system of rules worked out by the jurists of the Empire was far more scientific SAMUEL B. than those which pre vail in the common law, so far as these are not borrowed from those very jurists. The Roman jurists had "cases " to deal with, precisely as we do. They were not mere legal philosophers, but disposed of practical and " burning " ques tions of their time. They were, however, in the habit of referring back to a legal principle in disposing of a concrete case, and believed that great principles could be so stated as to win the attention of stu dents and give them a solid basis for future detailed acquisitions. Hence it happens that posterity, by the aid of the great historian

Niebuhr, has the advantage of studying the Institutes of Gaius, though in a fragmentary state, — a work compact in form, scientific in treatment, clear and accurate in its method, and persuasive in its reasoning. Assume that Gaius completed this work about the close of the life -of the Emperor Marcus Aurelius (say A. u. 178), it continued to be used for the instruction of students for three and a half centuries, down to the time of Justinian, who in the course of his reign is sued another book of Institutes based on Gaius, avowedly for the use of students. 11 is significant that this later work was largely composed in the very words of Gaius. It is reasonable to sup pose that this hap pened not from mere servility of expression, but because Gaius, like Blackstone or Kent, was a hand book in constant use for legal teaching, and so it was inexpedient to change its phrase ology, unless where it RUOGLES. became necessary to do so by reason of changes in the law, made by Justinian, prin cipally under the influence of a later public opinion. The justness of these statements is borne out by a sentence or two in the forefront of Justinian's own Institutes, Hook I., Title I. His words, no doubt composed by the law yers who made this later adaptation of the Institutes of Gaius, will bear quotation. The accurate translation of J. B. Moyle (Claren don Press, Oxford, 1883), is followed : " Our object being the exposition of the law of the Roman people, we think that the most ad vantageous plan will be to commence with [48|The Green Bag.|}}

an easy and simple path, and then to pro ceed to details with a most careful and scru pulous exactness of interpretation. Other wise, if we begin by burdening the student's memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen, — we shall either cause him wholly to desert the study of law, or else we shall bring him at last, after great labor, and often too distrustful of his own powers (the commonest cause among the young of ill-success), to a point which he might have reached earlier, without such labor and confident in himself, had he been led along a smoother path." These words seem wise and suited to the subject. Jus tinian's plan was that students should thoroughly master the Institutes; and this the name of his book imports. Though easily brought within a couple of hundred of printed pages, the Institutes have gained a legal immortality, and have been, and are still, the source of knowledge for students of the Roman law, as well as for lawyers in England and in the United States, few of whom resort to the great collection of cases in the Pandects, while such as do, en ter that wilderness through the gate of the Institutes. This work, as is well known, com prises the first elements of the science of law, arranged in four books. This arrange ment is apparently borrowed by Blackstone in his Commentaries, who first succeeded in treating the materials of the common law in an orderly manner, and who first relieved the student from fathoming the " laws of disor der " in Lord Coke's comments upon Little ton. So it happens that the methods and many of the rules of Justinian not only serve for education in the Roman law, but for dis cipline and thought in our own. Only one remark more needs to be made in justification of the course of study pur sued in the Columbia Law School. It lends itself readily to the purposes of a review. The great value of a review is not to be lost sight of. This statement will be sustained by all educators in collegiate courses. It is equally

applicable to legal study. It is highly impor tant that a student should go over a subject more than once. It is in this manner that early difficulties disappear. The materials for thought become permanently lodged in the mind. The pernicious habit of cram ming is avoided. The student's interest in his subject increases. The law may still be a labyrinth, but he has a clew which enables him to work himself through its mazes. More than all, the student gains that con fidence in his attainments which Justinian so justly declares, in the passage already quoted, to be a prime condition of success in legal pursuits. The methods of study outlined in this paper appear to have been adopted in England in the early period before law instruction fell into decay. There were no suitable treatises then at hand. The lecturers, then termed " read ers," discussed before an audience of stu dents a legal topic from a systematic point of view. The lectures of this kind that have come down to us are very satisfactory. Ref erence may be made to Lord Bacon's read ing on the Statute of Uses, or Sir Francis Moore's reading on the Statute of Charitable Uses. A number of a valuable character are still in existence, but unpublished, await ing exhumation by the Selden Society. This system, it is true, after a time failed. That failure was not due to any defect in method, but to more general causes. The lectures were but occasional; there were no regular instructors. Large sums of money were expected to be laid out by the lecturers in the way of entertainment of the students who had honored them with an invitation to "read." Such an assessment, for it was practically that, after a time became bur densome, and lawyers invited to lecture de clined the invitation. Add to this that the Inns of Court werej particularly during the period of the Stuarts, places for the cultiva tion of jollity and merriment. They were houses where the fun was "fast and furious," and where the sobriety of the law came to be out of place. Instruction in the principles Columbia College Law School.


of law altogether ceased there. Whatever mendation for a degree, to meet at their own legal instruction there was, was relegated to request the professors who during their course the law offices. This was in general little had the principal charge of them, to obtain enough; for we have the testimony of the a farewell greeting with words of affection poet Cowper, who at one time entered a law and expressions of desire for kindly remem office as a student, that the students of his brance in their future career. Such influ day for the most part spent their time in ences reacted upon their conduct, making discipline wholly unnecessary. Not an in "giggling and in making others giggle, in stead of studying law." From this double stance of it occurred for the first twenty

years of the life of the failure of the Inns of institution. Court and the law Another remark offices came the perni cious idea, long prev may be made shedding alent but now passing light on the value of away, that systematic this method. During instruction had no true a period of thirty years place in legal educa not a single instance tion. has transpired of any To sum up this former student's ex branch of the subject, pressing dissatisfac the Columbia method tion with it. On the is true teaching, and other hand, hundreds presupposes for its of instances have oc highest success the curred of indications teaching faculty in the of very high satisfac professors. This is tion. Several leading sometimes not pos lawyers have sent to sessed by men of the the school four or five very highest ability. It sons in succession. A is of the greatest im large number of the portance that it should students attend upon be cultivated. the recommendation of An important result the Alumni, who now GEORGE T. STRONG. of this method is, that commence to show where the number of their estimation of the students is not too large, the relation be value of the method by sending their own tween them and their professors is quite a sons. The classes are abundantly filled with personal one, and leads to mutual interest out special effort to obtain students. and it may be to mutual affection. The To sum up the whole matter, is not this, private intercourse between them under in substance, the " Socratic method" of such circumstances is free and unrestrained. teaching? A few words may be quoted Counsel and advice are eagerly sought and from Mr. Grote : " In the Phcedrus of Plato faithfully given. The relation becomes prac the Platonic Socrates delivers the opinion tically fraternal. For example, until the num that writing is unavailing as a means of im ber of students became very large, it was the parting philosophy; that the only way in regular course of things at Columbia for which philosophy can be imparted is through members of the graduating class, after they oral colloquy adapted by the teacher to the had been examined and received a recom- mental necessities and varying stages of pro 21 |The Green Bag.|}}

gress of each individual learner; and that attached to this country, and possessing a writing can only serve after such oral in constant and unwearied interest in the pro struction has been imparted to revive it, if motion of legal education. It is due to forgotten in the memory both of the teacher these gentlemen to say that though most of and hearer who has been orally taught." 1 them were heavily burdened with profes Methods such as these were adopted, after sional avocations, they were unwearied in mature deliberation and some experience, their attention to this department. Several when the institution was organized. Valu of them were the more active members of able suggestions had been obtained from the a committee of the Trustees on the Law experience of Hon. Samuel J. Hitchcock, for School, and for many years personally at many years Law Professor in the Yale Law tended the final examinations of the mem School, a most accurate thinker and an ad bers of the graduating class. The attendance mirable Law Professor. Many men of legal of Mr. Ruggles was very remarkable. He eminence still living profited greatly by his was then far advanced in life, but full of the teachings. No student under his instruction I spirit and earnestness of youth. Nothing admired him more or looked more to his | could dampen his ardor; more than once, methods for suggestions than the first Pro while sick in bed and under the constant fessor in Columbia College Law School. attendance of a nurse, he sent for the writer Columbia College, at the time of the foun to make some suggestions which he thought dation of the Law School, was very fortunate of use to the Law School. On one occasion in its Trustees. There were several of them his physician interfered and forbade the visit, who took a keen and enlightened interest in but found that the prohibition increased his the Law School, and who did much to insure patient's restlessness to such an extent that its growth and prosperity by their wise and he permitted an interview, with the grav prudent counsels and by their zealous efforts est forebodings as to the result, though his in its behalf. Prominent among them were apprehensions were still graver if the inter the Hon. Hamilton Fish, afterwards the dis view was forbidden. After an hour's dis tinguished Secretary of State of the United cussion, in which Mr. Ruggles explained and States during the administration of General enforced his views and patiently listened to Grant; the Hon. Samuel B. Ruggles, a dis opposing considerations, he became tran tinguished citizen of the city of New York; quil, and soon beginning to mend, rapidly George T. Strong, Esq., a fine lawyer and a recovered. He was one of the few men that make real the vivid but slightly altered de man of high culture and varied accomplish ments. Mr. Justice Blatchford, now of the scription of Dryden : — Supreme Court of the United States, was from "A fiery soul, that, working out its way, the beginning and has been ever since a Trus Fretted the feeble body to decay, tee and a constant friend of the institution, And o'er-informed the tenement of clay." though his judicial duties have prevented Mr. Ruggles was a far-seeing man, of states him from taking the active part in its man agement attributable to the other gentlemen manlike views and of prophetic vision. His who have been named. Mr. Gouverneur M. eloquent and glowing predictions while in Ogden, long the Treasurer of the College, the State legislature at an early age of the gave much time and attention to this subject. future of the West, and of its great highway It would not be just to omit in this survey to the East, the Erie Canal, though at the the name of Marshal! S. Bidwell, a lawyer of time deemed visionary, were more than justi most extensive and varied legal training, fied in the event. The Law School owes educated by English methods, but extremely much to his untiring zeal, wise suggestions, and surpassing interest in its prosperity. 1 Grote's Plato, 1S3. Columbia College Law School. Firm friendship for his juniors in years was in him but another name for a truly paternal affection. It was, further, a fortunate thing that in the outset a number of the most prominent judges and lawyers in New York, while not members of the Board of Trustees, aided the institution by their support and by the de livery of occasional lectures. One of these still survives in a green old age, still practis ing at the bar, though for a long period on the bench where he remained until disquali fied by age to serve, — a man interested in every direction in the advancement of science and education. Reference is made to Hon. C. P. Daly, long Chief-Justice of the Court of Common Pleas, and also for many years the venerable President of the American Geographical Society, an office which he still fills and adorns. The first lecture in the Law School was delivered on Monday, Nov. i, 1858, by Mr. D wight, at the rooms of the Historical Soci ety. It was an introductory lecture, after wards printed. The audience consisted mainly of lawyers. It was plain that many of them could be counted upon as friends of a system of legal education. The result was an immediate attendance of thirty-five students, who showed their intention of pur suing a regular course of study by at once paying a tuition fee for instruction through out the year. Such assurances were given of a future increase of numbers that it was de termined to divide each class at the begin ning of the coming year into two sections, for their convenience. The next year, the number of students was sixty-two. In the third year there were one hundred and three. Many of these early students were members of the bar. In one year the lawyers in at tendance numbered seventy-five. What better commentary could be supplied of the inefficiency of instruction obtainable in the law offices? It will be convenient in this connection to show the number of students in the succeed ing years, exhibiting the fact that the growth

of the institution has been quite steady in stead of being sudden or spasmodic. Year. 1858-S9 1859-60 1860-61 1861-62 1862-63 1863-64 1864-65 1865-66 1866-67 1867-68 1868-69 1869- 70 1870-7 i 1871- 72 1872-73 »873-74 1874- 75 1875-76 1876- 77 1877- 78 1878-79 1879-80 1880-81 1881-82 1882-83 1883-84 1884-85 1885-86 1886-87 1887-88 188S-89

No. of Students. 35 62 103 117 •5° 171 170 178 168 184 204 230 243 291 371 438 522 573 526 462 436 45 1 43i 47' 400 365 365 345 399 461 491

Some remarks should be made as to these figures. The numbers in 1875-76 were swollen by the fact that the requirement of a preliminary examination went into effect in the succeeding year, and some students entered then to escape it. The number was reduced in 1883 to 1885, owing to a consider able increase both in the tuition fee and the diploma fee. It will be seen that since 1885 there has been a regular increase. These numbers embrace two classes, — a senior and a junior class. In October, 1890, there will be a third year's class formed, which will pre sumably swell the attendance to a still larger number than at present. |The Green Bag.|}}

The theory of the course has regularly the Law Committee, all of whom were highly been to give the classes an outline of the | reputable lawyers, some of them having whole domain of municipal law. Of course, I a national reputation. Among them were Hamilton Fish, Mr. Justice Blatchford, Alex in two years only a mere outline was possi ble. In the early history of the institution, ander W. Bradford, formerly Surrogate and it was quite difficult to hold the students for a distinguished lawyer, George T. Strong, that time, since by the rules of court, as and at a later date, Stephen P. Nash. Legislation of this kind was not new, but already stated, no time whatever was re quired. Here were two parallel methods then existed in favor of several Law Schools offered to each aspirant for legal honors. in the State; among others, one at Albany, One was offered in this manner: attend the still in operation. The Law Committee for Law School, remain two years, and then a number of years acted under this law, per upon an examination be admitted to the bar. sonally attending public examinations at a great personal sacrifice, and passing upon The friends of the other method remon strated : why attend any lectures? go up to the fitness of the applicant for admission to your examination when you please, trust to the bar, as well as for the bestowment upon your good fortune and the leniency of the them by the Trustees of the degree of examiners; you will readily attain your Bachelor of Laws. The " pass " examination to which candidates for graduation were re end. It was determined at an early day that it quired to submit covered the whole range of was wise to confine the attention of the stu their studies. This method was adopted to dents mainly to the principles of the law, secure greater familiarity with the subjects paying comparatively little attention to the in which they had been instructed, every details of local practice. There was, how effort being made to avoid cramming. This ever, a formidable obstacle in the way of this system is still continued. It has resulted in course. The examiners appointed by the great thoroughness of study and close ac court practically paid no attention to legal quaintance with the subject. The better principles, although there was but one ex students have their resources at immediate amination for admission for both attorneys command. Ground that has been so thor and counsellors. Besides, as new examiners oughly traversed does not need to be were appointed four times a year, there was traversed again. These "pass " examinations no established or prevailing method of pro have been mainly oral. If the candidate is unsuccessful, another trial is conceded upon ceeding in that respect. If one Board fa vored theoretical study, the next adopted a written papers. It is by such a variety of different view, and confined all their inquiries modes that the knowledge or want of knowl to trivial and useless details. Taking all edge of every student, both day by day and things together, the outlook for the success finally, can be ascertained. Mr. Pollock has of a regular and systematic course of study recently given expression to the principle : was unpromising and discouraging. "Viva voce questioning and discussion . . . This state of things led to an application and whatever may bring the order of exami to the legislature to allow the graduates to nation into contact with real life and make be admitted to the bar on a certificate from it less of a routine apart, should, so far as pos the College that they had attended the sible, be introduced and encouraged" (Nine lectures for two years, and had passed a teenth Century, February, 1889, p. 300). satisfactory examination before its Law The first class graduated in the year i860. Committee. This Committee consisted of the A motion was made to that branch of the Professors in the Law School and the mem Supreme Court holding its terms in the City bers of the Board of Trustees belonging to of New York for the admission of the grad 153 uates on the certificate provided by the Legis time was, that the Supreme Court, though lature in the law above described. The court intrusted with the power of admitting at held the law to be unconstitutional and void, torneys and counsellors to practice, had on a theory that the power to admit attorneys, conspicuously failed in establishing any satis etc., was inherent in the court, and that the factory method. The Law Schools needed legislature had no authority to provide for temporarily a different mode of proceeding. admission in any other way. This prepos After their modes had had a fair trial before terous decision, unexpectedly adverse to the the public, legislation was no longer neces graduates, since no such question had been sary, since the later judges have more thor

raised in other judicial oughly realized their districts as to the other responsibility to the profession, and the Law Schools, led to an appeal to the Court of court examinations Appeals, in which two are more reasonable, though, be it said with points altogether new respect, there is still in our jurisprudence in some quarters room were presented. One was, whether an ap for improvement. In the same year peal could be taken from an order denying (i860), in order to stimulate excellence the petition or motion of an applicant for in attainments of the admission to the bar; students, a series of an and the other, on the nual prizes was estab merits of the case, as lished, commencing to the power of the leg with $250, and dimin islature over the whole ishing regularly by subject of the practi 550, until the sum of tioners in the courtS100 was reached. This second question These were adjudica branched out into an ted by leading mem historical as well as bers of the bar upon legal inquiry, in which the combined merits THEODORE W. DWIGHT. ail the English leg of written answers to islation and practice printed questions, and were considered, from the earliest period of essays upon topics selected by the in down to the time of the argument. The structors. None could compete for the argument was published in full in a separate prizes except those who had fully completed pamphlet. A mere outline of it is presented the two years' course. The questions cov in the report of the case, in 22 New York ered the range of studies for the whole R. 67, under the name of the matter of Cooper. course. Stringent rules were adopted in The Court of Appeals held that the order reference to the answers, so as to secure was appealable as involving a substantial the absolute fidelity of the candidates in right, and thereupon reversed the decision their work. The first committee of award of the Supreme Court. The graduates were consisted of Judges D. P. Ingraham of the accordingly admitted under the statute, and Supreme Court, Lewis B. Woodruff of the continued to be for a number of years. The Superior Court, and Chief -Justice Daly of great justification for this legislation at this the Common Pleas; all jurists of great emi 154|The Green Bag.|}}

nence, and having the confidence of the pub is considerable advantage in this practice, as lic. They declared the " result as evinced in they are acquainted with the methods in use, the essays and answers as creditable in the and above all as they take a very deep in highest degree both to the students and to terest in the work, in many instances putthe institution." It is believed that this ing off cases and surrendering gratuitously method of ascertaining excellence in attain weeks of valuable professional time to the ments was adopted for the first time in this service, the number of papers being fre country by this Law School. Did space ad quently large. There is a fine and healthy mit of it, this first list of questions, answered feeling among them that they owe a kind of in writing in the presence of a professor in debt to the profession in promoting the edu five hours by the candidates, would be in cation of its members. serted in this article. At that time no In the same year (1860), Francis Lieber, miserable printed question-books, with their LL.D., then a Professor in the School of numerous asinine answers, were in existence Arts in Columbia College, became >a pro to mislead unwary students. The prizes, fessor in the Law School, as an instructor with the same general methods of ascertain in Political Science. After a time he be ing excellence, have continued down to the came attached solely to the Law School, present day. The questions were intended surrendering his work with the undergradu to be fair and at the same time searching. ates. Great interest was felt in his instruc A number of the question papers have in tion, as he was the author of many valuable recent years been resorted to by the Su works, and a high authority upon questions preme Court examiners in the regular bar of public law. He was of great service to examinations. The combination of the two the Government, during the Civil War, in tests has proved highly useful, in the man the preparation and preservation of valuable ner about to be detailed. The student, when public papers of permanent value. Dr. Lieber he submits his essay to the examiners, must at an early day attracted the highly favorable make a solemn declaration that he has had regard, among others, of Mr. Justice Story, no direct aid in the preparation of his essay. who complimented him in the warmest terms Still, the prize is considerable in amount, and on the excellence of his great work on Politi the credit of obtaining it is not without its cal Ethics, referring to its " sound principles, value. Accordingly, he may yield to temp I striking and original views, and varied learntation and violate his pledge, obtaining assist j ing." He adds that " he recommends it ance from others; still, if he be in fact a constantly to all his friends, and especially student but of moderate excellence, his tell to young men, as leading them in the right tale answers will disclose the falsity of his track" (Life and Letters of Joseph Story, declaration, and forfeit his chances for a vol. ii. pp. 278, 329). He speaks with al prize. Great care has been taken to exclude most equal praise of his more strictly legal the participation of the Law School Faculty work on Interpretation and Construction of in any form whatever in the award. It is a Written Language (Hermeneutics), character fixed rule that none of them shall read or izing it as " full of excellent hints and princi examine the papers until after the award is ples and guiding rules, written in a clear and made, and not even then, unless they appear compact style, with great force of illustration in print, as they sometimes do. In this way and accuracy of statement, and in a spirit of all heart-burning, so common with defeated candor and without partisanship" (Life and candidates, is wholly avoided, at least so far Letters, p. 283). This work survives to our as the Law School authorities are concerned. own day, under the excellent editorship and In later years it has been possible to select valuable contributions of Prof. W. G. Ham Law School Alumni as the judges. There mond. It is much to the credit of Dr. Lieber, Columbia College Law School that, though born and educated in Germany, he thoroughly understood American political institutions, and treated them with an intel ligent insight and skill rare even among American students. He was a true friend of a well-regulated political liberty, which on all suitable occasions he was wont to ex pound and to extol.

No one could be more proud of the title " jurist " than Dr. Lieber. He great ly preferred it to that of Professor. When called by the latter title, he was wont play fully to correct the speaker, if well ac quainted with him, saying, " Doctor, if you please." He was fond of legal maxims and sententious phrases carrying with them sound or far-reaching principles. He would sometimes print these in large type, and sur round them with gilt frames and present them to friends, to be hung up for constant FRANCIS recognition in offices and libraries. One to which he was particularly attached concerned the relation between duties and rights, in Latin dress : "Nullumjus sine officio; nullum officium sinejure!' Such phrases as these ap peared, as it were, to be engraved on his heart. His whole instruction had an elevated tone. The title of his work, " Political Ethics," well expresses the general current of his thoughts. In his view a political structure without ethical principles was built upon the sand. His lectures were highly useful and sugges tive to those students who constantly listened to him. If he failed in any respect, it was in the lack of that regular system so dear to


the American student's heart, his mind was so deep in thought, so rich in suggestion, so affluent in illustration, that to an ordinary student there might seem to be a break in the continuity of treatment of his subject, when there were in fact only elegant acces sories and delightful excursions, from which he would in due time return to the main track of his discourse. The writer desires to acknowledge his great indebtedness to Dr. Lieber for most valu able suggestions made in conversation and in correspondence, and his profound respect for his thorough com prehension of the prin ciples of a true political science. His death in 1872 was sudden, and caused a great loss to the cause of education and the interests of the country at large. The vacancy thus created in the depart ment of Political Sci ence was filled in 1876 by the election of Prof. John W. Burgess of I.IEBER Amherst College to that chair. The title of this professorship has been so changed in later years as to extend it to Constitutional and International History and Law. In the year 1878 the organization of the Law School was modified. The office of Warden (created in 1864) was continued, and five professorships were established: (1) of the Law of Contracts, Maritime and Admi ralty Law; (2) of Real Estate and Equity Jurisprudence; (3) of Criminal Law, Torts, and Procedure; (4) of Constitutional His tory and International Law; (5) of Medical Jurisprudence. Theodore W. Dwight was continued in the 156|The Green Bag.|}}

office of Warden, and appointed to the first of the professorships the Hon. John F. Dillon, Circuit Judge of the United States for the Eighth Judicial Circuit, was appointed to the second; George Chase, a graduate of the Law School, was appointed to the third; John VV. Burgess, to the fourth; and the Hon. John Ordronaux, M.D., LL.D., to the fifth. Dr. Ordronaux was the author of valuable works on the subject of Medical Jurisprudence. Judge Dillon, having resigned his judge ship and having become a citizen of New York, entered upon the duties of his depart ment with great zeal and interest. He was fond of instruction, and would have been pleased to devote his life to legal study and the preparation of legal works for the use of students and the profession. His great judi cial experience and eminence soon made such demands upon his time as a practitioner as to induce him to devote himself wholly to litigated business. He accordingly retired from the professorship in 1882. Some time later, the professorship was filled by the ap pointment of Benjamin F. Lee, a graduate of the Law School, residing in the city of New York. Mr. Lec was then in large prac tice, particularly in that branch of the law to which his professorship relates. The legislature in 1876 committed the whole subject of admission to the bar to the charge of the Court of Appeals. The matter was to be regulated by rules of court. Rules were accordingly established by the court affecting students in law schools as well as in lawyers' offices. The Statutes permit the court in framing its rules to dispense with the whole or any part of the period of clerk ship required from clerks in offices in favor of students in the law schools. (Code of Civil Procedure, §§ 57, 58.) The rules made under these provisions in substance require a three years' course of study for admission at one and the same time to the degree of Attorney and Counsellor in all the courts of the State. There may, however, be received in lieu of one year's study a degree of grad uation in a literary college and one year's

study in a law school. Where there is no degree in a literary college, two years' study in a law school is allowed. But in every case there must be at least one year's clerk ship with a practising lawyer in the State. Law-school students now have no privileges whatever in .connection with admission to the bar. They must pass an examination before the court in the same manner as oth er students. The court examinations have much improved of later years, at least in some of the judicial districts. The term of the examiners has been much lengthened, and there is a much greater disposition on their part to ascertain the knowledge of candidates for admission upon points of sub stantive law than there was formerly. The candidates in the Law School for the degree of Bachelor of Laws must sustain an addi tional examination at the close of their course, covering the entire period of study. Not long after the establishment of these rules, the members of the Court of Appeals assented, at the request of the Warden of the Law School, to a personal interchange of views on the subject of admission to the bar. Among other matters, a preliminary exami nation was strongly recommended by the Warden. Such an examination had been al ready established in the Law School, and was then in full operation. The court ac ceded to this view, though not concurring in the recommendation that some knowledge of Latin should be required. In lieu of that a preliminary examination in English branches of study, established by the Board of Re gents of the University (and popularly called "Regents' Examination "), is now required to be passed by all candidates for admission (unless they are college graduates), whether they be students in law schools or not. This regulation is made perfectly effective by the rule that no course of study shall legally commence until the examination is duly passed, though, when passed, the time will relate back for a period not exceeding three months in favor of those who have already commenced their clerkship or sub Columbia College Law School. stituted course of study. There is, however, still open an opportunity for evading the preliminary examination, since the rule is not applied to those who have been admitted in other States and who come to New York to practise. It would have a great influence in promoting the cause of legal education, if such regulations could be made uniform, at least in substance, throughout the country.

How can the practi tioners in law be called a learned profession, when one who is pro foundly ignorant of arithmetic, orthogra phy, or English or American history, not to say Latin, and every modern language, can be made a lawyer with out any demur, as he can be in some of our States, through the good will of examining Boards? The New York method is un questionably the cor rect one, as it commits to an independent body of men the duty of inquiring into a student's general at tainments in other CHARLES branches of study be sides the law. The only ground for criticism is that the prelimi nary examination does not embrace as many subjects as are desirable, though this defect may perhaps erelong be supplied. There are thus, at present, two parallel modes of going to the bar in the State of New York : one is partly through the law schools and partly through the law offices; the other, exclusively through clerkship in an office. The former is expensive; the latter is without expense, and in some in stances slightly remunerative. In each J method the court directs the examination 22



for admission to practice. It is creditable to the young men studying the law, that they still crowd the law schools, notwith standing that they have no exclusive privi leges. This many of them do with much labor and self-sacrifice to procure the neces sary means. Their motive is to obtain systematic knowledge. It should be added, as to the tuition fees in Columbia, that they are considerably re duced in favor of such students as are shown I by proper evidence to be in want of sufficient pecuniary means and are at the same time faithful to their stud ies. Their fidelity is tested every half-year by a certificate of the Warden of their satis factory attendance as shown by the college books, and of their proficiency as ascer tained by conference with their instructors. In recent years, owingamongothcr things to the great increase in the number of stu dents, it has been de termined to augment P. DALY. the tests of attendance and proficiency. To this end a series of prize tutorships was es tablished, three in number. These tutors are selected from the leading students in their classes, hold office for three years, and are so classified that one goes out of office each year. An exercise under the charge of these 'tutors, known by the students as a "quiz," meets with great favor and is largely attended, particularly in the case of those tutors who develop an aptitude for the successful performance of their duties. The attendance is voluntary and without charge. 158|The Green Bag.|}}

It is a very pleasant feature of the Law School work, that strong friendships spring up among the students, following them in later life. Their intercourse leads to con stant discussion of legal questions, developing . frequently differences of legal opinion which are finally referred to the professor in charge of their work. It is noteworthy that this was, of old, the method of the barristers who met in or near Westminster Hall and put questions to one another.1 Moreover, partnerships in business grow out of this friendship, as well as other important legal connections. There is a fine spirit of mental activity prevailing, sometimes leading to excess of intellectual labor and requiring suitable checks from older friends. If a professor's life and work are under any circumstances agreeable and self-satisfying, it is under those which prevail at Columbia, where with most of the stu dents no stimulus is needed, where the spirit of inquiry is eager and satisfied only with replies resting upon reason, and where the courtesy and forbearance of students are sincere and admirable. A majority of them are college graduates. Many of them were marked men in their undergraduate courses. These set a high standard of work for their fellows who have not had equal literary ad vantages. Upwards of fifty literary colleges are represented, with varying types of under graduate education. The opportunities offered at Columbia for training in the principles of political science and of International and Constitutional Law 1 Reference is here made to a passage from the opinion of June, J., found in the Year Book of 7 Henry VI. pi. 20. He says : " One day, while passing between Westminster and Charing Cross, I put a case to the late Justice Hankford (whom may God assoilzie), and before he would answer, he put a question back to me, whether, if he should convey to me provided that he should have forever the profits of the land, he or I would in law have the profits, and I replied that I would have them, for the deed should be construed more to the advantage of the grantee than of the grantor; in other words, the conveyance would be good and the proviso void. Whereupon Hankford said that my inquiry resembled that case, and that his opinion was the same as mine." This little glimpse of these bar risters, both afterwards judges, " talking law " between Westminster and Charing Cross, is certainly instructive.

should now be stated. In the year 1876 Prof. John W. Burgess became Professor of this class of subjects, both in the School of Arts and in the Law School. The Trustees of the College displayed an enlightened in terest in this branch of education, until it was raised to the rank of a department by itself. It was proper that this should be the case, since a quite considerable number of students desired to confine their attention to the ordinary branches of municipal law, — "the bread and butter studies." Arrange ments were thus readily made for them, while those who desired a wider range of study had full opportunity accorded to them. Moreover, there was a class of students who desired only to study political science and other hranches closely associated with it. At the present time any law student may, at his option, study any one or more of the topics assigned to that department without further tuition fee, and may matriculate as a candidate for a degree therein on payment of the nominal fee of $5. The professors in this department were trained in the best European universities. Several of them are graduates of this Law School. The regular' course of education in the Law School has hitherto occupied two years. In the spring of 1888 the Trustees decided to have a three years' course. Actual at tendance (except in the case of those who were students when this statute was passed) will be compulsory for this whole period, as a prerequisite to a candidacy for the degree of Bachelor of Laws. The first class to which this rule will be applicable entered on the first Monday of October, 1888. The third year's course will, accordingly, not go into actual operation until the fall of 1890. The specific topics to be assigned to the third year are not yet determined upon, though un der discussion. So much as this has been de cided, that there will be in the third year two Elective Courses, — one in topics of private law, and the other in branches of public law, including Constitutional and International Law. The result is that a student can then Columbia College Law School. obtain the degree of Bachelor of Laws by a two years' course in private law, with the addition of a third year either in private or public law, on passing the requisite final examination. For quite a number of years the Law School labored under the disadvantage of inadequate accommodations. This fact was partly due to an unexpected number of stu dents, and partly to a desire on the part of the Trustees to make temporary provisions until a suitable building could be erected. Such a building was constructed at great cost, on the block bounded by 49th and 50th Streets and Madison and Park Avenues. This block is entirely devoted to the uses of the College. The building is understood to be fireproof. The upper part of it is used for the College Library, while the lower rooms are assigned to the Law School. There are two large lecture-rooms, each hav ing a sufficient capacity to accommodate two hundred and fifty students, and suitable rooms for offices, etc. The library is open to all students every secular day in the year (with the exception of one or two days) from eight o'clock in the morning until ten o'clock at night. The law students in large numbers make use of the books, not merely in law, but in history and political science. The corps of instructors in the Law School at present (March, 1889) is as follows : Theo dore W. Dwight, Warden and Professor of the Law of Contracts, etc.; Benjamin Frank lin Lee, Professor of Real Estate and Equity Jurisprudence; George Chase, Professor of Criminal Law, Torts, Evidence, and Pro cedure; John W. Burgess, Professor of Constitutional History, International and Constitutional Law and Political Science; John Ordronaux, Professor of Medical Juris prudence; Robert D. Petty, Instructor in Municipal Law; Paul D. Cravath, Alfred Gandy Reeves, and Philo Perry Safford, Prize Tutors. Of this number, Professors Dwight and Chase make their professional work, as lawyers-, subordinate to attendance to Law School duties throughout the scho


lastic year. A course of lectures on the Private Law of Corporations is in course of delivery by Victor Morawetz, Esq., of the New York Bar. The professorships in the third year's course have not as yet been definitely es tablished. It is, however, presumed that in the Elective Course in Constitutional and International Law instruction will be given by some of the professors in the existing de partment of Political Science; namely, Prof. John W. Burgess, Prof. Edmund Monroe Smith, lecturer on Roman Law and Com parative Jurisprudence, and Frank J. Goodnow, Professor of Administrative Law. Owing to the recent introduction of the third year's course, and the possible re arrangement and redistribution of studies to take place within a few weeks, it is not deemed expedient in this article to state the existing courses of study. It is altogether certain that the new courses will embrace all that has been heretofore taught in Con tracts, Real Estate, Equity Jurisprudence, Torts, Evidence, and Procedure, and as much more as can reasonably be brought within the increased time allotted to legal study. This extension of the course is largely due to the persistent and enlight ened efforts of Stephen P. Nash, Esq., an eminent practitioner at the New York Bar, to whom the Law School owes a permanent debt of gratitude. The success of the work of the Law School for the last thirty years must nat urally be shown by the character and work of its students and graduates. It must be remembered, however, that the oldest of them have but just reached middle life, while there are but few surviving who have passed the age of forty-five. The results of the work done here have certainly been highly satisfactory. The three Circuit Judges of the first and second judicial cir cuits, Judges Colt, Wallace, and Lacombe, were trained under the system prevailing here. A very large number of the younger men of promise and ability at the New York 160|The Green Bag.|}}

Bar are graduates or were students. A number of them hold or have held high judi cial positions in the State and Territorial courts, several of them reaching the rank of Chief-Justices and Chancellors. The men who have been active in political reform in New York have been trained here, includ ing Seth Low and Theodore Roosevelt. The same remark may be made of the better element in New York political life. The prominent offices are held by these students, including such positions as that of the Mayor, Corporation Counsel, City Chamberlain, etc. As prosecuting officers they have been highly efficient and successful. In the City Councils they have been unflinchingly op posed to corruption, sometimes standing almost alone in their efforts to prevent it. Some of them have exhibited remarkable talents in the management of great public enterprises. Diplomacy has had through them fit expression. They have borne their part well in high executive and legislative positions, frequently having in the latter that commanding influence which springs from knowledge, ability, and purity of pur pose. Their arguments before courts ex hibit in numerous instances thoroughness, breadth of research, and strength of reason ing, deserving and receiving high compli ments from judges who know what good argumentation is. A single fact shows their general spirit in connection with membership of the Bar Association of the City of New York. There is perhaps no institution of this kind in this country which is more meritorious and suc cessful. It originated with the leading mem bers of the bar. None can join it except such as pass the ordeal of a careful inquiry by a thoroughly well-selected committee on admissions, — an inquiry into the training, ability, and character of the candidates. An

admirable library containing upwards of thirty thousand volumes, many of them rare and of great value, bespeaks the energy and intelligence of the Society. Of this asso ciation of picked men, having on its rolls nine hundred and fifty members, a majority (477) consists of graduates or former stu dents of this Law School. This is a preg nant fact, showing their earnestness in broad and comprehensive study. With many of them, membership is won with the first scanty savings made in the outset of their professional life. So much and more has been achieved by these young men in the face of an active and relentless competition from lawyers crowding into this city from all parts of the United States. Nor is the success of the graduates confined to the city of New York. Similar results might be cited from various parts of the country. The managers of the Law School have reason to think that they have not spent their strength in vain. They look forward with some solicitude to their new departure. Will the three years' course be sustained by the community? It is believed that it will be." The time seems ripe for it. The signs of success are flattering, particularly in the fact that the number of students re mains constant, notwithstanding the an nouncement of a longer curriculum of study. Such institutions have no governmental support here to uphold them, as on the con tinent of Europe. Attendance is in the face of easier methods tolerated by the State. If the proposed course be successful, it will be another instance of the willingness of the American people to submit to sacrifices and to practise self-denial in the hope of attaining a higher education. It casts a serious responsibility upon the Board of Instruction here to see that the hope turns out to be well grounded. Frost v. Knight.

FROST v. KNIGHT. (L. R. 7 Ex. in.

Temp. 1872.)

By John Popplestonk. I. "T TE loves me, — nay, he loves me not! " A * She tore the petals two by two From off the stem, and idly threw Them from her, 'plaining of her lot.

She stood by the untrodden ways Where they in other times had met; With cheek and eyelash all unwet She mused of love and other days.

She watched the fading autumn leaf, The sky was gray, the wind a-cold; Her heart grew with the season old, And nursed an angry, tearless grief.

"My love," she said, " is turned to hate, — My love, that should have crowned his life. He lightly wooed me for his wife, And now be seeks a richer mate." '

11. Stands not the woman higher than The dog that follows at his heel? Shall she before her tyrant kneel Whom Nature equalled with the man?

"He took my love, nor recked the cost; My heart was warm to him, my Knight. He took away the warmth and light, And left me an unchanging Frost.

161 The Green Bag, "I know him now. I never knew Till now how false his suit could be. He says he ne'er will wed with me, And shall I not for vengeance sue? "But when? 'T was when his father died He vowed that he with me would wed; I would his father now were dead, But still he treads the hither side. "And must I wait the uncertain day He passes from our moaning shore? Or may I sue the son before? Counsel's opinion is, I may. "Already he derides me : ' Lo! Thy path and mine shall never meet' He makes my bitter wrong complete. The writ is ready : let it go!

in. "We rate too highly, says the sage Who knew our little nature's strife, The power of love, whereto our life Is less beholden than the stage. "Perchance our spirits, from the flaw, The taint of earthy mould made free, Shall know how great our love may be; For great is Love, yet greater Law. "Love did the wrong the law redressed, I take the gold the jury gave; No more the love he vowed I crave, The gold I have, methinks, is best. "This truth the student shall recall, Who reads of Angelina Frost : ' 'T is better to have loved and lost Than never to have loved at all.' "

Lays of a Limb of the Law.





IN 1780 there lived in the parish of Berville, in Lower Normandy, a poor farmer by the name of Jacques Verdure. His wife was dead, and he was left with six children, two of whom were of tender years, — a boy of five, and a little girl only six weeks old. The oldest daughter, Rose, beautiful and a per fect picture of health, had for a long time taken the charge of the affairs of the house, and at her mother's death filled her place as far as possible, in the care of the two young children. She was twenty-one years old. This girl, so necessary to the poor family of Verdure, was suddenly taken from them by a terrible crime.

On the night of the 14th of October, 1780, the father, uneasy at not seeing Rose return, went out to seek for her in the neighborhood. A few steps from the house he found her lying dead near a ditch. Two balls had struck her in the heart, and she must have died instantly.

This event, which deprived the family of one of its two supports, was not merely for Verdure a source of grief. We shall see that this misfortune was only the prelude of irrep arable disasters.

On learning of the murder, the chief magis trate of Berville repaired to the place, accom panied by the procureur fiscal, the greffier.and a surgeon. They examined the two wounds, which were about two inches apart, and in one of them they found a rough, jagged ball. Who could have committed this murder?

Rose was discreet as well as industrious; it was not known that she had any enemies. What reason was there to suspect any of her family? What possible motive could there be to urge the father or her elder brother to commit this deed? Her death was an irrep arable loss to them.

The witnesses at the investigation, neigh bors, and idle gossips, were lost in conjec tures, when a word, uttered in a whisper, and then repeated in louder tones, directed suspicions toward the father, Verdure. One of those who had been present when the body was examined had noticed upon the neck of the victim a dark mark of extravasated blood. From this it was imprudently concluded that Rose had not been killed in the place where the body was found. Ab surd as was this conclusion, it found parti sans. This Verdure must have assassinated his daughter in the house, and then undoubt edly carried the body to the spot where it svas found.

But why had he committed this crime? They did not consider that question. The removing the body, the murder committed in the house of Verdure, must have left some traces; they sought vainly for them. No matter; Verdure had committed the deed. It was probable; it was certain. But Ver dure had no gun, and at his house they found neither lead nor balls. The investiga tion was temporarily suspended, but an im pression had been made upon the minds of the magistrates, and later it had been revived and strengthened.

The matter was referred to the parliament of Rouen.

Before this jurisdiction the fatal rumor made its way. The new magistrates, who had taken no part in the first investigation, seized upon this vague suspicion, emanating from the imbecile populace. They must have a guilty one; the popular prejudice furnished him.

The 19th of November an order was issued for the arrest of Verdure, and his two daugh ters and his oldest son were summoned as 164|The Green Bag.|}}

witnesses. Verdure was arrested at his house by officers of the Marshalsea. A thunderbolt from heaven striking the house could not have more surely destroyed this family than this monstrous act, accom plished in the name of pretended justice. The three young children, deprived of their only remaining support, objects of the sense less indignation of the neighbors, fled terri fied from the scene of their unhappiness. The boy, only six years old, begged through the streets of Berville, and the youngest born soon died for want of proper care. The unwarranted investigation of the parliament of Rouen lasted five years. Yes, five years! and nothing was developed by it. At the expiration of this time the judges decided in favor of a more ample examina tion for three months. But these absurd and cruel delays seemed to some to be altogether too favorable to the accused. The procureur-general protested against the leniency which was being shown in the affair, and an order was issued for the arrest of the three children who had previ ously been summoned as witnesses. The little boy, who was only six years old at the time of the murder, was not excepted from their barbarous and utterly unjustifiable order of arrest. All this poor family languished in the prisons of Rouen, threatened with an end less accusation, and without any hope save in the merciful forgetfulness of their judges, when Providence raised up a defender for them. When legal justice is false to its duties and unfaithful to its divine mission, the spirit of individual justice is deeply wounded, and takes upon itself the omitted duties and the neglected mission. There was in the parliament of Rouen-, in 1787, an advocate named Vieillard de Boismartin; he was still a young man, not yet forty years of age. The son of a doctor at the head of the medical faculty of Paris, he possessed a noble and sympathetic nature, and was ever ready to espouse the cause of

the unfortunate. This honest man learned that in a prison in Rouen an unfortunate family was suffering, tortured in the name of the law. He gave his whole soul to the ungrateful if not dangerous task of saving them. His first care was to examine carefully into the investigation whose fatal errors had plunged the Verdures into this abyss of misery. He perceived at once the glaring errors with which it abounded. The in terest which might have armed the hand of the father or the brother against the daugh ter and the sister was entirely wanting; the contrary interest appeared plainly throughout the whole case. There were no evidences of any dissensions in this united family, of which Rose was the indispensable member. The character of the young girl was spotless; at least, it was believed to be so. She had no suspicious acquaintances, and no other role could be attributed to her than that of a mother to the family, — a position which had been forced upon her by the death of a beloved parent. The public rumor, so ridiculously absurd, had not the slightest foundation. It was, however, this senseless rumor which had influenced the examination, per verted the good sense of the magistracy, and subjected these innocents to the arbitrary rigor of the law. M. Vieillard determined to trace to their source these popular reports. He found that the first author of them was a young miller of the parish by the name of Jacques Lefret, a married man, who was a great friend of Rose. This young man, learning of the death of the girl, rushed to the house of Verdure, and presently came out in a state of great excitement. Questioned by a neighbor, he replied wildly, " No, it can be no other than Father Verdure who has killed her." This was the germ of all this evil. It was this imprudent statement which was the spark that was so soon fanned into a flame. Was it merely a wild utterance of grief, or Causes Celebres. was it a true statement of fact? In either case, the magistrates knew where to look for an explanation. As was natural, they had summoned Lefret, and before them he did not dare to reassert his accusation. However, the germ had fructified; the flames had spread. And this statement of Lefret was of greater weight than any evi dence, and the prejudice born from it estab lished itself firmly in the minds of all. What would a cool, unprejudiced judge have done? He would have endeavored to ascertain what secret motive had prompted Lefret to make this statement, so quickly abandoned by him; he would have demanded of this man an explanation of an accusation which per haps had for its end the putting of justice upon a false track. The magistrates did nothing of the kind. If they had they would have learned that on the very night of the crime several neigh bors saw at the house of Lefret two guns, one of which was known to belong to him. They would have learned that a short time before Lefret had bought some lead, for the purpose, as he said, of making weights for his clock. The ball found in the body of the victim bore the marks of numerous blows of a hammer; it had been modelled cold, and very roughly. At the house of Verdure, on the contrary, no one had ever seen any firearms, and no one could say that Verdure had ever bought powder or lead. On the evening before the murder Verdure went to the mill to have three bushels of wheat ground; he was in great spirits; he played upon Lefret's violin, and remained there until late at night. Le fret himself related some of his (Verdure's) innocent jokes. If they had taken the further trouble to ascertain, they would have learned that Le fret himself, on that same evening, was pen sive, silent, and dejected; while the father, upon the point, as they said, of killing his daughter, was gay and jovial. Lefret, seated upon the bed, his head resting upon his hands, his eyes fixed, and his whole appear23

ance distracted, seemed like a man com pletely engrossed by some absorbing thought. That was not all. Immediately after tes tifying, Lefret disappeared. That ordinarily would be an indication of crime. Lefret abandoned a wife and two children who were dependent upon him for support. Verdure, on the contrary, refused four times to share the privileges of his companions in captivity, who were allowed almost absolute freedom. He remained alone in his cell, the door of which was open, chained there only by a sense of his innocence. Assured by this extraordinary conduct of a prisoner accused of such a crime, the concierge placed no other guard over Verdure save his own honor; and he carried his confidence in him to such an extent that when business called him away, he installed Verdure in his place. What a difference between this calm, dig nified attitude and the flight of Lefret! One objection was, however, always op posed to the partisans qf the innocence of Verdure and his family. Rose had been assassinated before the very door of their house. How was it that neither the father nor any of the children had heard the two reports of the gun? Was it not more rea sonable to suppose that they had shot the victim in the house and then carried the body outside to avoid suspicion? That was the only indication of the guilt of the Verdures. A fragile foundation for so grave an accusation! If they had desired to seek for the truth carefully and calmly, the truth would have made itself apparent. A neighbor, a simple and irreproachable man, would have informed the judges that on the night of the crime, about eleven o'clock, as he was going out of his house, he heard the report of a gun which was fired, apparently, near the ditch in front of Ver dure's house. Immediately after the report he heard a plaintive voice, — that, no doubt, of the person who had been shot. Further, if the crime had been committed in the house of Verdure, the shot must have been fired in close proximity to the victim, 1 66|The Green Bag.|}}

and marks of the powder would have been found upon the body of the victim, or at least her garments would have been burned. Three witnesses had furnished all the evidence admissible against the Verdures. In the first place there was the testimony of a woman named Bouillon, a former neigh bor of these unfortunates. She was a person of violent temper, and noted in the parish for her evil doings and venomous language; and Verdure, after bearing with her pa tiently for four years, had ended by forbid ding her to enter his house. For lack of proofs against Verdure this woman had recourse at first to vile insinuations. Then she drew upon her imagination, and swore that the father maltreated Rose, — that she had often heard the cries of the unfortunate girl. She said that Verdure had frequently threatened her (Bouillon), and that he and his children had more than once profited by the absence of her husband to break the windows and doors of her house. Not one of these assertions could be proved, and not one of the dwellers in the neighborhood had eVer heard of these pre tended violences of Verdure. The next evidence upon which they relied was that furnished by the son of Verdure, that child of six years, reduced to begging by the arrest of his father. Wandering from door to door, interrogated by those who assisted him as to the circumstances of a crime at which they took it for granted he was present, his mind filled with the contradictory recitals which he heard, the poor little one retold, for a piece of bread or an apple, some one of these ridiculous stories. The magistrates had with great care collected all these statements in order to choose from these versions, which flatly contradicted one another, some one which might be fatal to Verdure. The third witness was one Gentil. He swore that at a certain date, in a certain place, and under certain circumstances, Ver dure had announced to him his intention of killing his daughter.

Confronted with this Gentil, Verdure de clared that he did not even know him. He offered to prove that he could not have been in the place in question on the day desig nated. Gentil, put to the proof of his as sertions, retracted them entirely. Of these three pieces of evidence, that of the woman Bouillon had not the slightest bearing upon the case. It was evidently the product of personal malevolence. That of the son was contradicted by his own statements. A single witness had offered against Verdure not a proof, but an indica tion, and when shown that his statement was false, had at once retracted. The strange conduct of the magistrates in this affair can no longer be characterized as an error; it was a crime. All these facts and glaring iniquities M. Vieillard urged before the proper tribunals. Finally, after seven long years, the Parlia ment of Rouen issued a decree dated Jan. 31, 1787, declaring Lefret contumacious, and guilty of having participated in the assassination of Rose Verdure, and condemn ing him to be broken alive, after having been put to the torture to force him to dis close his accomplices. One would suppose that after this further proceedings against Verdure would have been abandoned. Nothing in the investiga tion, not a single fact, not a particle of evidence, except perhaps the contradictory stories of the young Verdure, showed the possibility of any complicity between Ver dure and Lefret. But justice at that time, like the greedy Acheron, did not willingly relinquish its prey. The same decree which condemned Lefret deferred doing justice to Verdure and his children, until after the dying statement of the condemned absent man. The conditional liberation of all but the father and the oldest son was ordered. The deferring action until after the dying statement of a man of whom the authorities had lost all trace was in effect condemning to an indefinite imprisonment an accused Causes Cefcbres. against whom they acknowledged they had no sufficient evidence. M. Vieillard entered upon a new struggle with this absurd and iniquitous decree. This was a bold act on his part, for already the authorities were annoyed by his efforts and seemed to consider them as a personal insult on his part. A decree was issued enjoining the procureur-general to forbid any further petitions being presented in favor of the accused. What infinite pains to repress the truth! M. Vieillard, however, was not discour aged. He appealed to the Council of State. Two years more passed by before success crowned these new efforts. The Revolution had commenced, and disorder reigned su preme. It was not until the 14th of Novem ber, 1789, that the Council of State set aside the decree of the Parliament of Rouen, and ordered the case to be brought before the Council for final disposition. A hearing took place on the 3d of Janu ary, 1790. The procureur-general, M. Blanc de Vermeil, showed that the Parliament of Rouen had wilfully violated the laws protect ing innocence; that there was not a shadow of a proof against the accused; that their in nocence was completely demonstrated; that Lefret was convicted by four witnesses of having wickedly and calumniously imputed to Verdure the assassination of his daughter; that this same Lefret was the only one upon whom suspicion of the crime could justly rest. Therefore he asked for the honorable dis charge of the Verdures, and that Lefret, as a punishment for his atrocious calumny, should be condemned to the galleys for life. On the 7th of January M. Vieillard ad dressed the Council. He divided his argu ment into three parts : the first establishing the legal innocence of his clients; the sec ond their actual innocence; the third dem onstrating the spirit of persecution which had distinguished the proceedings. The following passage gives a good idea of the terrible disadvantage under which the defence labored in those times : —


"Have you," said he, addressing the judges, — "have you out of the ninety-eight wit nesses, heard at the former investigation, found a single one who swears to anything concerning Verdure, from which you might infer that he was a man without character or guilty of any action which might render him suspicious? No; these ninety-eight witnesses are all favorable. That is not all; I offered a list of a hundred and forty-seven witnesses. Well, what did these honorable magistrates do? They shut their eyes to the ninety-eight witnesses who had been heard; they shut their eyes to my list, and asked the father how it happened that he had such a bad reputation in his parish. A question which resulted from a wicked prej udice, a prejudice which has been the cause of all the misfortunes of these unhappy ones. It was this same prejudice which dictated this proposition which was pre sented to Verdure. They said that if he could not tell who assassinated his daugh ter, it must be that he himself committed the crime; a proposition which leads to the most serious reflections. Hereafter, when a child is murdered, of all the indi viduals who compose society, they upon whom the strongest suspicions must fall will be the father and the mother. Yes, I repeat, it is this prejudice which is respon sible for all." The procureur-general then made a con cluding argument, paying a great tribute to the counsel for the defence, for his noble firmness and indefatigable and disinterested zeal. After this last act in a procedure which had lasted more than nine years, the accused finally had the satisfaction of having their innocence proclaimed. On Feb. 1, 1790, the family were pre sented to the National Assembly. M. le President Target addressed them as follows : — "Your long sufferings have deeply moved the Assembly. Such painful experiences have for an end the correcting of errors which have made so many victims. Forget, |The Green Bag.|}}

if it is possible, the cruel wrongs you have suffered, and rejoice at least in the thought that the epoch in which your innocence is recognized is that of a new order of things, which will in future prevent such sad mistakes."

This celebrity did not. profit the family of Verdure. Two of the children died miser ably; Verdure himself died shortly after, while he was filling the humble position of concierge in a factory in the Faubourg Poissonniere.

GERMAN CUSTOMS — A SOURCE OF COMMON LAW. through Gaul and Britain, and therefore THE English law, like the English lan guage, is mixed and compounded of records what he himself had either seen or many elements. To understand it in a heard among the natives. But Tacitus wrote thorough and scholarlike manner, we must at home. The precision and accuracy with trace the sources from which it springs. which he has pencilled the manners of the These sources are many, and drawn, too, Germans may well excite wonder; for Ger from a sufficient distance. Although we are many was at that time a distant, unknown, indebted to the civil law for many principles and barbarous province, and he himself had never wandered among its wild forests and of our own (especially in equity and com mercial jurisprudence), yet it is from our still wilder warriors. His little treatise, how sturdy and roving ancestors of the north, ever, sheds a flood of light upon the early that we have derived the broad and bold antiquities of the law. Of all the features of the common law, the outlines of that happy system under which we live, and whose very end and aim is boldest and broadest are its love of liberty, its devotion to good morals, and its abhor liberty. i Strange as it may seem, it is nevertheless rence of fraud. In this system fraud vitiates true, that those hordes of Goths and Vandals everything which it touches, and no obligation that swarmed from the northern hive, and is enforced which is founded on a breach of whose name has become a reproach and a sound public morals. It declares that the by-word for all that is barbarous, are the consent of the governed is the only true very people that spread law, language, and source of all law. Here it stands in bright liberty over our western world. If, there contrast with the law of imperial Rome, and fore, it is to be regretted that they overturned clearly shows its origin and descent. Of all an empire which would soon have fallen of uncivilized nations of which we have any itself, and destroyed monuments of art which record, the Germans were the freest, most time in its course must necessarily have moral, and most trustworthy. In such sacred swept away, should we not rejoice that they regard did they hold their word, that after brought with them customs as free as they they had lost their property at play, they would wager their persons and their liberty. themselves were wild, and planted institu tions which have grown in wisdom, as they If the die was cast against them, they suf fered themselves to be bound and sold as ripened with time? Fortunate indeed is it for the lawyer no slaves; and what to others would seem obsti less than the scholar, that those customs nacy, they dignified with the name of faith. have been sketched by the graceful pen of Nothing could surpass the esteem in which Caesar and painted by the masterly hand of they held the fairer sex. None but noble Tacitus. Caesar, indeed, fought and travelled men had more than a single wife. Adultery German Customs — A Source of Common Law. was rare, and punished in the most severe and public manner. A second wedlock was forbidden. The wife looked upon her hus band as upon herself, without the desire or expectation of another marriage. And thus by good morals were sown the seeds of good laws. From this institution of marriage among the Germans, so pure and excellent for so barbarous a people, is plainly derived that union of husband and wife at common law, upon which depend almost all the legal rights, duties, and disabilities which either of them acquire by marriage. In the civil law, husband and wife were separate persons; at the common law, they are one and the same. The difficulty of procuring a divorce, the tenderness of the parental power, the severe punishment of adultery and other crimes against the married state (in which points the English law differs from the Roman), may readily be traced to the same source. Again, different as these two systems are in their regulations relating to landed property, in none are they more so than in those re lating to dower. In the civil law, dower sig nified the marriage portion which the wife brought to the husband; in the common law, the estate to which the wife is entitled on the death of the husband, out of such lands and tenements as he was seized of at any time during the coverture, and of which any of her children might by possibility have been heirs. Some have ascribed the intro duction of dower as it stands with us to the Normans; but Blackstone thinks that it is a Danish custom, being introduced into Den mark by Swein, the father of Canute the Great, out of gratitude td the Danish ladies, who ransomed him with their jewels when taken prisoner by the Vandals. We think, however, that its source can be traced still higher up in point of time. For with the Germans, the husband brought dower to the wife, not the wife to the husband. At firstit consisted of oxen, horses, helmets, and other articles of personal property in chief esteem and use among them. The manner


of endowing was very similar to those two species still known in the English law, ad ostium ecclesia and ex assensu patris. Among wild and roving tribes personal property is always the subject of ownership before real; but as the country peoples, the lands are parcelled out and occupied, and thus very naturally dower, which was at first confined to the one, was afterwards extended to the other. No point in the antiquities of the law has been so learnedly searched or warmly dis puted, as the original constitution of par liament. As usual, parties have arrayed themselves against each other on the subject. It is, however, sufficiently agreed on all hands, that the English parliament sprung from the Saxon wittenagemote. But whence was the wittenagemote itself derived? Evi dently from German assemblies. The con stitution, the powers, and the methods of the two are so nearly identical as to leave no reasonable doubt upon the subject. It is well known that King Alfred, when he revised and remodelled the Saxon laws, divided England into counties, hundreds, and tithings. The division into tithings, Alfred may be said to have invented, but that into hundreds, and which naturally sug gested the other, he doubtless borrowed from Germany. The German States were divided into cantons and hundreds, and the only difference between the German and the English hundred is that the one was a mili tary and the other a civil establishment. Anciently, and even until after the time of Blackstone, wager of battle was a species of trial at common law. The origin of this mode of trial has been ascribed to the combat between David and Goliath. But we think we need not go back so far; for it is plainly de rived from a custom which prevailed among the Germans and other northern nations, and which sprang from their military spirit and ambitious turn of mind. The Germans were particular in their observance of auspices and lots, the flight of birds, and the neighing of horses. When they were at war with any |The Green Bag.|}}

people, they seized the first captive they could, and compelled him to fight in single combat with one of their own champions. Each was armed with the weapons of his own country, and the victory of either was looked upon as prophetic of the event of the war. Before the Norman conquest, and for a long time after, the law of England was noted for the fewness, as it afterwards was for the number, of crimes punishable with death. Whenever an enormous offence was committed, a fine called weregild was paid by the malefactor to the friends and relatives of the person injured or killed. This pecuniary satisfaction owes its origin to the Germans, among whom homicide itself was expiated by the gift of a certain number of herds and flocks; and with this gift the whole family must be satisfied, in order to stifle their ani mosity and thirst for revenge. A fine was always paid by offenders to the State, and to the person injured or his relatives. These customs are the original of the law of appeal, which is an accusation by one subject against another for some heinous crime, demanding satisfaction for the particular injury suffered, rather than for the offence to the public; and of the law of forfeiture, whereby a man loses his lands and they go as a recompense for the wrong which he has done to an individual or the public. The essence or principle, both of the German custom and the English law, is the same; to punish the party who commits the offence and compensate the party in jured, and thus at the same time to suppress both crime and a desire to revenge it in individuals. It is undoubtedly true that a vast portion of the law, and especially of real property, hangs upon the feudal system; it is equally true that this system itself, although finally and firmly planted in England by William the Norman and his mail-covered barons, was not unknown to the Saxons, and was brought over by them from Germany. To the German law of descent may also be traced gavelkind, borough-English and many other customs. Nor must we forget the

trial by jury, that boast of the English law and bulwark of English liberty. For that we are indebted for its introduction, neither to classic Greece nor imperial Rome, but to a people who, equalling either in chivalry and arms, surpassed them both in the un fettered freedom of their lot. These are a few of the leading and living principles of the English law, which may clearly be traced to the forests and marshes of Germany. They are simple, and were naturally brought into life by the wants of a wandering uncivilized people. We know that the idea of deriving from such a source the vast and intricate machinery of the Eng lish government, is treated by many writers of learning and fame as fond and fanciful. We know that the sketch of Tacitus has often been looked upon rather as a lively portrait of the manners of a free and gener ous people, drawn in a great degree from his own imagination, and intended to rebuke and reform the morals of Rome, rather than to describe those which really prevailed in Germany. Upon what ground this opinion is based we are at a loss to know, unless it be in the vanity of those who advance it. Tacitus was a historian and not a novelist, and his treatise on Germany is no mere piece of fancy. It is undoubtedly difficult to say, that this custom was derived from the Germans, and that from the Britons; that one law was in troduced from Rome, and another from Ger many. But can it be denied that the Saxons brought their laws as well as their language into Britain, when they subdued it? Is it likely they would have left behind the cus toms in which they were bred, and tamely yielded or slavishly adopted those of the country which they had so lately conquered? Is it not more likely that they would have blended their usages together, and thus made a system more perfect than either? The customs of the Germans are plainly one of the streams which, uniting their waters, form the broad and deep and clear river of the law. — American Jurist. Published Monthly, at I3.00 per annum.

Single numbers, 35 cents.

Communications in regard to the contents of the Magazine should be addressed to the Editor. Horace W. Fuller, 15^ Beacon Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities or curiosities, facetia, anecdotes, etc. THE GREEN BAG. 'T'HE "Law Journal" (London) disputes the correctness of the statement made in our January number, as to the antiquity of the green bag as the badge of a lawyer. It says : " The passage from VVycherley's ' Plain Dealer,' cited by the editor of the ' Green Bag,' does not go far enough to show, as he supposes, that barristers carried green bags or that they were the badge of a lawyer. Widow Blackacre, the lady litigant in person of the days of Charles II., carried a green bag, and Jerry Blackacre, a raw squire under age, bred to the law, was laden with green bags, following her; but neither of them was a lawyer. When the widow roundly rated the counsel en gaged on the other side, and called him ' greenbag carrier,' she meant to give him the name of the humblest attendant in the courts." We must confess that we were at first rather taken aback by this statement of our esteemed contemporary; but upon further examination into the subject, we feel that there is certainly very good authority to sup port our statement as to the antiquity of the green bag as the badge of a 'lawyer. In his " Book on Lawyers " Mr. Jeaffreson says : " On the stages of the Caroline theatres the lawyer is found with a green bag in his hand; the same is the case in the literature of Queen Anne's reign; and until a comparatively recent date [the italics are ours] green bags were generally carried in Westminster Hall and in provincial courts by the great body of legal practitioners. Again he says : " So also in the time of Queen Anne, to say that a man intended to carry a green bag was the same as saying that he meant to adopt the law as a profession. ... It must, however, be borne in mind that in Queen Anne's time green bags, like white bands, were as generally adopted by

solicitors and attorneys as by members of the bar. . . Some years have elapsed since green bags, altogether disappeared from our courts of law. Evidence sets aside the suggestion that the color of the lawyer's bag was changed from green to red because the proceedings at Queen Caroline's trial rendered green bags odious to the public and even dangerous to their bearers." The foregoing statements certainly seem to con firm our position in this matter. Hoes the " Law Journal" pretend to have more information upon the subject than Mr. Jeaffreson? One of the two must be wrong. Which is it?

While the " Green Bag " has received a most cordial greeting from its legal contemporaries in this country, it is pleasant to find that on the other side of " the great pond " it has been welcomed with kindly and appreciative words. " Pump Court " says : " This admirable magazine [The Green Bag] is replete with matter of interest to the profession; and, as we have always maintained, what interests lawyers must interest everybody. We say ' interest ' advisedly, and we mean what we say. The day for ponderous journals copiously larded with clippings from the ' Gazette ' is gone hopelessly, if indeed they ever had any day really; cheap law reports have killed what little life they ever had. The contents of the first number are sufficiently varied to suit all tastes of the profession." The " Law Times " (London) also thus signifies its approval : " Legal journalism is manifestly in progress of development, more particularly m the United States. We have received from Boston, Mass., the first number of an exceedingly wellprinted and well-edited publication under the title of ' The Green Bag.' It contains some admirable engravings, and both prose and verse," etc. The verdict of the " Scottish Law Review " is as follows : " A magazine for lawyers with no law in it is something of a novelty, yet such the ' Green Bag ' professes to be. Its publisher states : ' Its 172|The Green Bag.|}}

scope excludes reported cases, digests, discussions of "points of law," and other "practical" matter, but includes everything else likely to interest the legal profession.' In strict accordance with this idea we have in the new publication no dull reports of cases or dry disquisitions on legal points, but in their place sparkling rhymes, humorous anecdotes with a stronger or weaker court flavor about them, and interesting bits of gossip on legal matters. The result is a readable collection of matter inter esting particularly to lawyers, but which will no doubt find favor also with a wider circle. The ' Green Bag,' however, is by no means limited, as its title would seem to imply, to the task of making legal jokes. In the article on ' The Harvard Law School ' we have an admirable description of an institution which, so far as we are aware, is with out a parallel on this side of the water. The teaching of the law is there conducted in a way which should afford some grounds for reflection to our own University reformers. The portraits of some of the more celebrated teachers in the .School, including Judge Story, Judge Parker, Professor Parsons, and others, are beautifully done, as is also the portrait of Chief-Justice Fuller, which stands at the begirihing of the number." Modesty and lack of space compel us to omit many other pleasant allusions.

LEGAL ANTIQUITIES. The Old Court of Exchequer. — The his tory of the Court of Exchequer and its judges is highly interesting to the archaeologist. " The Ex chequer," says Lord Chief- Baron Gilbert, "was the ancient and sovereign court in Normandy, to which they appealed from all inferior courts and jurisdictions, it being the Grand Court of the Duke." The derivation of the word " Exchequer " has been the subject of some doubt; Basuage thinking that it came from the German skccken (to send), because the court was composed de Missis Dominis, or of such great lords as were particularly sent for to hold court with the Senes chal, or Steward, on any occasion. But the more common derivation of the word is from a cheq uered board, or chess board. " They call the board at which they play chess a chequer," re marks Gilbert, " because in that game they give cheque; and this court was so called because

they laid a cloth of that kind upon the table upon which the accomptants told out the king's money and set forth their account." The Court of Ex chequer in Normandy, as in England, consisted of two divisions, — the Receipt of the Exchequer for the management of the royal revenue, and the Court (or Judicial) part of it; and though Gilbert appears to hesitate in his opinion, it seems suffi ciently clear a priori that the idea of this tribunal was imported from France. But whether it was established in England by the Conqueror or not, it is certain that it formed part of the old Curia Regis. It was commonly called Curia Regis ad Scaccarium, and it sat " at a four-cornered board about ten feet long and five feet broad, fitted in manner of a table to sit about, on every side whereof is a standing ledge, or border, four fingers broad. Upon this board is laid a cloth bought in Easter Term, which is of black color, rowed with streaks distant about a foot or span, like a chess board," upon which counters were ranged for the purpose of checking the computations. Origi nally the only business of the court was to adjust the king's revenue, which in early times was paid partly in kind and partly in money, — the differ ent farms supplying necessaries for the daily use of the royal household, and the cities and towns furnishing money for the soldiers and other pur poses of the State. Pleas between private indi viduals were afterwards heard here, and fines levied and recorded, though no instances occur previous to the reign of Henry II. At first all the judges of the Exchequer were actual barons of the realm, having seats in the Curia Regis, and until the reign of Henry III. they were indiscriminately styled Justiciarii et Barones. On the division of the courts in that reign — the real barons having in the mean time seceded from the employment — special persons were assigned to sit in the Exchequer tanquam Barones, thus retaining the style of " Baron; " and, in order to distinguish their business from that of the two other courts, from which they were now separated, their duty was expressly limited pro negotiis nostris quce ad idem Scaccarium pertinent. All these barons were, till the reign of James I., of a much lower degree than the other judges, and indeed were not considered men of the law at all, nor ever employed to go on the circuits. But upon the general increase of litigation oc casioned by the extension of commerce, and the Editorial Department. gradual combination of civil and revenue cases requiring the aid of learned lawyers for their de cision, it was determined to place the barons on precisely the same footing as the other judges; and consequently those who were appointed after the twenty-first year of Queen Elizabeth were selected from the serjeants-at-law, and were dis tinguished from their predecessors by the term "Barons of the Coif." It had always been com mon to take the Chief-Baron (first appointed in the reign of Edward II.) from the rank of the legal profession. From the time of the Stuarts the status of the barons may be said to have been considered equal to that of the other judges. They had an equitable as well as a legal jurisdic tion, which, however, was taken away from them in 1 8 14. In 1880 the Exchequer and Common Pleas were merged in the Queen's Bench Division of the High Court of Justice.

FACETIAE. "May it please your Honor, I desire to apply for a writ of supersedeas" said a lank, cadaverouslooking member of the bar. "A very appropriate thing for him to ask for," remarked a bystander, " for he certainly is the very picture of a super-seedy-ass."

"What do you understand by the term socage 1 " asked an examiner of a youthful aspirant for the bar. "Well," replied the aspirant, hesitatingly, " I should say it meant an age of from one to three years, although older people sometimes wear them." An irate attorney who had made motion after motion to the court, all of which had been suc cessively overruled, unable longer to restrain his wrath, indignantly exclaimed : " Well, your Honor, grant me a writ of error, then, as that seems to be the only thing this court is capable of issuing."

GoiNu down the Chesapeake Bay on an excur sion when the wind was fresh and the white caps were tumultuous, Judge Hall, of North Carolina, became terribly seasick. 24


"My dear Hall," said Chief-Justice Waite, who was one of the party, and who was as comfortable as an old sea-dog, "can I do anything for you? Just suggest what you wish." "I wish." groaned the seasick jurist. " that your Honor would overrule this motion." — Splinters.

When the late Chief-Justice Chase chose to unbend himself he could be witty as well as wise. At a social gathering at his house during the war, the subject of taxation having been mooted, a dis tinguished naval officer present said he had paid all his taxes except the income tax. "I have a little property," said he, " which brings me in a yearly rental, but the tax-gatherers have not spot ted it. I do not know whether I ought to let the thing go that way or not. What would you do if you were in my place, Mr. Chase?" There was a merry twinkle in the eyes of Secretary Chase as he answered archly, " I think it the duty of every man to live unspotted as long as he can." — Splinters.

"And so you have received a divorce from that vagabond husband of yours, Mrs. Smith?" "Yes, I am glad to say that I have." "Did n't you feel quite overpowered when you heard the decision of the judge? " "Not exactly. I felt sort of unmanned, so to speak." — New York Sun.

A lawyer's clerk wants to know if a crossexamination can be a good-natured one?

Great criminal lawyers are born, not made. They draw their inspiration not from musty tomes of black-letter lore, but from the fountains of their own native genius. As an example of this class we may refer to a story told of Mac Anderson, Esq., of San Antonio, Texas. On one occasion he was arguing an important felony case before the court, when the judge in quired if he had any authority to support his posi tion. " Not at hand, your Honor," said Mac, "but I can send and get one. Mr. Bailiff, will you step over to my office and bring me the book?" The bailiff immediately started, but re 174|The Green Bag.|}}

turned in a moment, and said, " Colonel Ander son " (in Texas when a lawyer successfully de fends a murder case they call him Colonel), "you forgot to tell me what book it was." " Oh, go along, you blockhead! there is only one book there," said Mac; and aside to his colleague, "And that is a copy of the Republican Campaign Text-book." A distinguished Federal judge, who is said to be somewhat too caustic in his wit, at a compli mentary dinner recently given him in a Southern city, wishing to produce a laugh at the expense of a prominent lawyer, cut off the ears of a roasted pig and directed a waiter to take them to the law yer with his compliments. The lawyer, who had long considered himself, as the company well knew, unfortunate with his cases in the judge's court, received the ears gracefully, and directed the servant to say to the judge that he felt espe cially thankful for the gift, as he had vainly sought for a long time before to get the ear of the court. — Virginia Law yournal.

A good story is told of the late Chief-Justice Mellen, of Maine. A very deaf old man was the defendant in a suit in which the judge, then at the bar, argued the cause of the plaintiff. As Mr. Mellen was proceeding with his argument with much earnestness, the defendant became greatly excited, and making many ineffectual attempts to hear what Mr. Mellen was saying to the jury, he at last exclaimed : " I don't know what you are saying, 'Squire Mellen, but I can swear it's a d d lie." A lawyer of Temple Court was looking over some papers his German client had brought, and every signature had a menace in it, as it stood, — "A Schwindler." "Mr. Schwindler, why don't you write your name some other way, — write out your first name, or something? I don't want people to think you are a swindler." "Veil, my Got, sir, how much better you dink dat looks? " and he wrote, — "A dam Schwindler." —The Hotel Man s Guide.

"I don't know about that, I don't know about that," exclaimed a New York judge, interrupting

a counsellor whose pungency was equal to his learning and ability. "I perceive that your Honor does not know, but I do," was the reply. First Female Juror (some years hence). That fool of a woman who wants a divorce admits that her husband hung up a lot of pictures, and put up ten curtains and six lengths of stovepipe without saying one bad word or even losing his temper. Second Female Juror. Yes; the man must be an angel. Let 's give her the divorce, and maybe one of us can get him. — Philadelphia Record. An action was recently brought before Mr. Justice Hawkins in England, to recover the value of two casks of herrings furnished many years before. "Why such long delay? " asked the judge. "Why." said the plaintiff, " I again and again, whenever I could find him, asked for payment, until at last he told me to go to the devil, upon which I thought it was high time for me to come to your lordship." The strong point of a member of the bar in a neighboring State is his faculty for getting the truth out of witnesses. The following is a sample of his system of cross-examination : — "Are you a married man?" "No, sir, I am a bachelor." "Will you please tell this court and jury how long you have been a bachelor, and what were the circumstances that induced you to become one?"

"Well," said an Irish attorney, " if it piaze tne court, if I am wrong in this I have another point that is equally conclusive."

"Have you," asked the judge of a recently convicted man, " anything to offer the court be fore sentence is passed?" "No, your Honor " replied the prisoner; " my lawyer took my last cent."

"I shall give you ten days or ten dollars," said Judge Walsh to a trembling wretch. "All right, Judge," answered the trembling wretch; "I'll take the ten dollars." — 7udgc. Ed1torial Department.


seen. Such marking shall be due notice of the dis coverer's rights and shall be respected as such, and shall establish the ownership in said discoverer of the bees, honey, comb, and contents. Sec. 2. If such tree be cut or such bees be caught or honey be taken or unnecessarily damaged or the sting of such bee be removed or disturbed to the detriment of the discoverer, unless such sting be lodged in discoverer, the depredator shall on con viction be held guilty of a " beeacide," and shall be punished by any court having jurisdiction of horse stealing by a fine of 5500, and the discoverer may authorize his bees to sting the depredator. Sec. 3. This act shall not be construed as giving NOTES. permission to commit a trespass or as relieving a trespasser from obligation for damages or prosecu If some of our State Legislatures keep on in the j tion therefor, but the discoverer of such tree, bees mirthful vein manifested by them in various bills or bee stings, or honey may, after having given to which have been introduced of late, the Statute ' the owner or occupant of the premises upon which they were found reasonable written notice of such books will presently become as entertaining read ing as the works of Mark Twain or Josh Billings. discovery and its locality, with a sample bee duly Here is the text of the first section of a bill lately marked and stamped and honey, accompanied by an offer to pay the damages done to the premises con passed by the Nebraska Legislature : — sequent thereon, (and in case of consent he shall pay "It shall be unlawful for any person to fire off or the same at the time of removal,) may, in a civil discharge any pistol, revolver, shotgun, rifle, or any action, recover of such owner or occupant £7 for firearms whatsoever on any public road or highway damages therefor. in any county of the State of Nebraska, or within sixty yards of such public road or highway, except According to a bill under the consideration of to destroy some wild, ferocious, and dangerous beast, the Delaware Legislature, the Judges of the Supe or an officer in the discharge of his duty." rior Court of the counties of the State shall appoint However, as officers are rarely seen on or near a person of known moral character and of proper the public highways, especially when wanted, they clerical ability to take the names, ages, occupa may not, perhaps, run any special risk under this tions, and residence of all applicants for marriage, act. and shall publish them in some daily newspaper eight days or post a printed copy of the same in On January 10 Assemblyman Cottrell, a backsome public place for eight days. Objections to country member, introduced a bill into the New the marriage of any one advertised shall be in York Legislature to protect the rights of persons writing by the complainant, with his or her name discovering " bee trees." It was read twice and and residence, and directed to the appointee of referred, and has just been reported favorably from said county, who shall notify all the parties of the the committee with amendments. How much of time and place for the hearing before the Judges the original bill remains it is hard to say. The of said county, whose decision shall be final. The first three sections are as follows : — fees to be paid in advance by the complainant. Ah act to establish the rights of persons, male or Any clerk of the peace, deputy clerk of the peace, female, discovering bee trees or other natural recep or any persons issuing any marriage licenses in tacles containing bees or honey. violation of the provisions of this act to any person, Section i. It shall be lawful for any person, male or female, in any county of this State, shall, Indian or Chinaman, first discovering or finding a upon conviction before the Superior Court, be bee tree, or tree or other natural receptacle contain ing bees or honey, to mark the bee upon his business - fined in a sum of S500, and shall stand committed end with a rubber stamp or indicate the locality and | without bail until the fine is paid. This is extending the jurisdiction of the court discovery thereof with the initials of his or her name distinctly and openly marked and so placed upon with a vengeance, and the unfortunate judges will such bee as above indicated so that it maybe readily probably have but little time to devote to anything

An amusing incident transpired the other day in the Civil Court in New Orleans. The suit was one in damages resulting from a collision between a buggy and a milk-cart. The counsel for the defendant argued for fully half an hour to show that the buggy had struck the cart several minutes before the cart had touched the buggy. The judge, the audience, and the members of the bar laughed, and the counsel thought it strange! 176|The Green Bag.|}}

except the hearing of complaints from disappointed suitors and vindictive spinsters who will willingly pay the fee demanded in advance for the sake of showing up their faithless sweethearts.

The bill, recently introduced in the Massachu setts Legislature, allowing towns the same rights and privileges in " great ponds " which is accorded to the larger cities, is said to be the work of the prohibitionists in anticipation of the passage of the proposed prohibitory Constitutional Amendment.

Wager of Battle still seems to be in vogue in some of our Southern courts, if the following re port clipped from the " Boston Transcript " is to be relied upon : — "During the argument of a petit larceny case be fore Justice of the Peace Nixon, at Hoxie, Kansas, J. L. Patterson and William Langley, both muscular law yers, became involved in a dispute as to their relative fighting powers. The two exchanged words and taunts for some time : then each bared his muscular arm and called on the justice to decide the dispute. Justice Nixon, who is a lover of the manly art, de cided that the only way in which the affair could be settled was with bare knuckles, and declared his wil lingness to adjourn the case for a time to allow the attorneys to settle the dispute. The two accepted the proposition and adjourned to a large hall. About all the men in the place gathered to see the fight. Patterson and Langley stripped to their undershirts, and, with the justice as referee, squared off at each other in regular pugilistic style. Suddenly Patter son's right shot out, and a moment later Langley was sprawling on the floor. This unnerved the doughty lawyer, and picking up his things he left the hall. Langley arose a moment later, but was not bent on fighting; and the battle was declared a draw."

Complaint is often made that jurors usurp the prerogative of judges and undertake to pass upon the law as well as the facts. But has it ever oc curred to those who make this complaint, that judges sometimes undertake to instruct the jury upon the facts as well as the law? If the bench forgets its duty in this respect, there is less reason for surprise that juries do likewise.

"Selected Pleas of the Crown." — The Selden Society are republishing, under this title, cer

tain manorial court rolls, — those of the thirteenth and fourteenth centuries. This will give our Amer ican lawyers and judges of super-conservative ten dencies material to draw from when an absolutely new question of law comes up for decision. They may find in these mouldy archives what some judge said in a foreign language on some more or less analogous subject, at a time when roast beef was a rarity on the tables of the aristocracy of England, and when England itself contained but a million of inhabitants. What do our readers think of this verdict, which, according to a contemporary, was delivered at the present Oxford Assizes, Coleridge (C-J. ) presiding, on the trial of the case of Cornish v. The Accident Insurance Company? We are of opinion that in consequence of his lordship's summing up, we are compelled to find that the plaintiff lost his life by incurring obvious risk, but we are of opin ion that he met his death by ordinary misadven ture. — Pump Court. The variation of age in judges of the United King dom is considerable. The oldest judge in England is Mr. Justice Manisty, of the Queen's Bench Di vision, aged eighty-one; the youngest, Mr. Justice Charles, of the Court of Appeal, aged fifty. In Scotland the oldest of the Lords of Session is Lord Glencorse, Lord Justice-General, aged seventynine; the youngest, Lord Wellwood, aged fifty. In Ireland the Hon. J. Eitz Henry Townsend, of the Court of Admiralty, aged seventy-eight, is the oldest judge; and Mr. Justice Gibson, of the Queen's Bench Division, aged forty-four, is the youngest. — The Legal News (Montreal). s The devil is a land-owner by legal right in Fin land. A man of evil repute died, and bequeathed all his property to the devil. ( The lawyers are in great anxiety about the matter. — Boston Budget.

Speaking of the pleasantries o(* the reports and text-books, a contemporary remarks that the met aphors which are to be found therein are at once amusing and beautiful. One such,', for example, occurs in Bright v. Legerton, 2 D. F. & J. 607, where it is remarked with respect to the emblem of Time, who is depicted as carrying' a scythe and Editorial Department. an hour-glass, that while with the one he cuts down the evidence which might protect innocence, with the other he metes out the period when innocence can no longer be assailed. And perhaps the ob servation of the Michigan judge in Farmers and Mechanics' Bank v. Kingley, 2 Doug. (Mich.) 379, is worthy to rank with these, where he says : "It would be as difficult for me to conceive of a surety's liability continuing after the principal's ob ligation was discharged, as of a shadow remaining after the substance was removed." Of all textwriters, Mr. Joshua Williams is, perhaps, pre-emi nent in his liking for the use of metaphors. There is one which is especially amusing, and which, as perhaps a little too pointed, he omits altogether in subsequent editions of the work in which it occurs. In a former edition of his work on Real Property he remarked, with reference to the act to render the assignment of satisfied terms unnecessary, that it was like saying that every one should leave his umbrella at home, except that such umbrella, which shall be so left at home as aforesaid, shall afford to every person, if it should come on to rain, the same protection as it would have afforded to him if he had it with him. And, again (Real. Prop., ed. 11, p. 460), he speaks of the present fashion of tinkering the laws of real property, preserving un touched the ancient rules, but " annually plucking off, by parliamentary enactments, the fruits which such rules must, until eradicated, necessarily pro duce." In the Court of Appeal, at Lincoln's Inn, in the course of a case involving the doctrine of a wife's equity to a settlement. Lord Justice Bramwell said: "There's no such thing as an equity since the Judicature Acts came into operation, — is there?" Counsel ventured to suggest that it was rather law than equity which had been abol ished. " It 's like shot silk," observed Lord Jus tice James; " both colors are there, and it depends upon the light in which you look at it which color you see." — Central Law Journal. A meeting of attorneys was held recently at Fargo to organize a Cass County Bar Association. Thirty-six attorneys were present. Judge Hudson was elected temporary chairman, and Walter Smith, secretary. A committee of five was appointed to draft a constitution and by-laws, and report at an adjourned meeting. In view of the near approach of statehood similar associations will soon be formed in all the organized counties of North Dakota.


fietent totaifyft. Stanley Matthews, Associate Justice of the Supreme Court of the United States, died at Wash ington, March 22. Judge Matthews was born in Cincinnati in 1824. He was a man of unusual ability, and before his elevation to the bench was one of the foremost advocates of the West. In our May number we shall publish an admira ble portrait of the late Justice, with a sketch of his life.

Cyrus Woodman, of Cambridge, died suddenly on March 30. Mr. Woodman was born in Buxton, Me., in 1814. In 1836 he was graduated from Bowdoin College, and afterward studied law. He entered the Harvard Law School in 1838, and was admitted to the bar in the following year. Shortly afterward he went West as agent for the Boston and Western Land Company, and re mained with this concern till 1843. He formed a partnership with Gov. C. C. Washburn, of Mineral Point, Wis., and they continued together for eleven years. He remained in the West till 1863, when he removed to Cambridge, where he had since resided. The deceased was for many years one of the Overseers of Bowdoin College, and was a prominent member of the New England HistoricGenealogical Society. He leaves a widow and four children.

William J. Morris, one of the oldest members of the Merrimack County Bar, died at his home in Danbury, N. H., on March 30, aged sixty-eight. Mr. Morris was leading counsel for the respondent at the several trials of Joseph La Page for the mur der of Josie A. Langmaid at Pembroke.

Sir William Foster Stawell, K. CM. G., who for nearly forty years has occupied various posi tions of the highest eminence in the colony of Victoria, is dead. He was born in 18 15. From 1 85 1 to 1857 he held the post of Attorney General in Victoria, and was also a member of the Execu tive Council. In 1857 he was promoted to be Chief-Justice of Victoria, and this high office he held for nearly twenty years. i78.

|The Green Bag.|}}

Senor Jose Eugene E. Bernal, the well-known Cuban lawyer, and one of the founders of the automonist party, is dead.

Written Prescriptive Constitutions," published in the March number of the Harvard Law' Review, are, to say the least, significant. Speaking of interstate commerce, he says : —

Alexander McCue, Assistant Treasurer of the United States, died at Brooklyn, N. Y., on April 2. He was born at Metamora, Mexico, in 1826, and graduated from Columbia College in 1845. Three years later he was admitted to the bar, and began his practice in Brooklyn. In 1861, 1862, 1867, and 1868 he was corporation counsel for that city, and from 1870 until 1885 was one of the judges of the City Court. The latter position he resigned when President Cleveland tendered him the appointment of Solicitor of the United States Treasury at Washington. On the death of Professor Baird, in 1887, the President gave to Judge McCue the vacant position of United States Commissioner of Fish and Fisheries.

'• It may be that by and by the federal legislature, surveying the field of interstate commerce, and taking note how State commerce encroaches upon and in termingles with it, crowding it in the same vehicles on the same roads, sharing with it in the same ex penses, the rates which are imposed on the one neces sarily affecting the rates that can be accepted on the other, and being handled at the same time by the same hands, under the same official control, will come to the conclusion that a separate regulation of State commerce must necessarily be to some extent at least, and may be to a large extent, incon sistent with complete federal regulation of the com merce that is interstate. Should that conclusion be reached, the federal legislature is not unlikely to take to itself complete regulation of the whole." What will our railroad corporations say to this?

REVIEWS. The Chicago Law Times for April contains an Johns Hopkins University Studies, seventh admirable portrait of William Blackstone accom series, IV. — This last number of this interesting panied by a sketch of his life. "The Woman series is a sketch of the Municipal History of Lawyer," by Dr. Louis Frank, is continued; the New Orleans," by William W. Howe. Beginning " Blair Amendment to the Federal Constitution " with the foundation of the city, in 17 18, the writer is discussed by Charles B. Waite. and there is an follows its history through the French and Spanish interesting paper on " The Death of Young Harry regimes until 1803, when Louisiana was ceded to Vane," by Judge Elliott Anthony. The Law the United States, and from that date up to the Times is certainly one of the most readable of our present time. A curious experiment in city af -exchanges, and is always heartily welcomed. fairs was attempted in 1836, when the territory of New Orleans was divided into three separate municipalities, each having a distinct government We have received an able and exhaustive paper with many independent powers, yet with a Mayor on Legislative Control over Private Corpora and General Council, with a certain superior au dons," by T. Gold Frost, LL.B., of the Minne thority. It was the idea of local self-government apolis Bar. The same paper is published in the pushed to an extreme. It existed for sixteen years, March number of the Columbia Law Times. and during its existence many important public improvements were made. The charter of 1870, vesting the control of the To the March number of the Chicago Law city's affairs in the Mayor and seven Administra tors, is one worthy of study by the advocates of Journal Dr. H. N. Moyer contributes an interest reform in municipal government. The plan seems ing paper on the " .Relation of Insanity to Crime," in which he advances the two propositions : first, to have worked admirably in New Orleans, satisfy "that habitual criminals are moral imbeciles; sec ing every one but the politicians. ond, that the scale of punishments now in vogue is not the best plan of dealing with crime." "The moral imbecile," he says, " cannot refrain The following remarks of Hon. Thomas M. Cooley in a paper on the " Comparative Merits of from crime, and is therefore not deterred by pun Editorial Department. ishment. ... If anything has been conclusively shown, it is that the miserable and cruel spectacle of excessive punishments does 'not lessen crime, but, on the contrary, only hardens and renders the criminal classes more indifferent to their fate. If all the criminals now confined in our peniten tiaries were taken out and hanged to-morrow, it is doubtful if it would lessen, to an appreciable extent, the number of crimes committed next month." It has been stated that statistics show that in France a public execution is almost invariably fol lowed by an increase in capital crime, a fact which would seem to confirm the position taken by Dr. Moyer.

BOOK NOTICES. Lawyers' Reports, Annotated. Book I. Law yers' Co-operative Publishing Co., Rochester, N. Y., 1888. $5.00. There are but few members of the profession who have not found the voluminous reporter system irksome in the extreme. To be obliged to wade through a mass of useless stuff before reaching a really useful or practical point, involves the expen diture not only of a vast deal of patience but also of much valuable time. This new departure in the sys tem of reports is one which must recommend itself to every lawyer. The cases reported in this series are only those which give judicial form to a new prin ciple of jurisprudence, apply an old principle to a development of new circumstances, or include a valu able discussion of a generally important point. The reports embrace the decisions of every State and the Federal Courts. The annotations are by Robert Desty. whose emi nent fitness for the work guarantees its thorough, accurate, and exhaustive character. It is proposed to issue four books each year, de livered either in semi-monthly parts or in bound book every three months. We wish this new undertaking every success. The Powers and Duties of Police-Officers and Coroners. By R. H. Vickers of the Chi cago Bar. T. H. Flood & Co., Chicago, 1889. Sheep. 52.50 net. This compact little work will be especially service able to those officers whose duties and powers the author has set forth with great clearness and concise ness. It is at the same time of much real value to the profession, and in fact to every citizen. There is much conflict in the minds of the community as


to the lengths to which the police on the one side and the people at large on the other may legally and properly go. As the author says : " When those duties are better defined and more generally known by all persons, there will be less difficulty in the path of the police." A Treatise on the Law of Benefit Societies. By Frederick H. Bacon of the St. Louis Bar F. H. Thomas Publishing Co., St. Louis, 1889. 55.50 net. This is, we believe, the first work of any import ance which has been published upon this subject, and, in view of the vast amount of litigation to which Benefit Societies have given rise within the past few years, it should meet with a hearty welcome from every lawyer. In addition to an able exposition of the law governing Benefit Societies, the entire law of Life Insurance is covered in this work, giving the latest decisions as to Suicide, Intemperance, and Effect of Misrepresentation. A Dictionary of Law. By William C. Ander son. T. H. Flood & Co., Chicago, 1889. $7.50. This new Dictionary of Law seeks to define and otherwise explain law terms and expressions, to show the application of legal principles, and to present the judicial interpretation of common words and phrases. Mr. Anderson appears to have done his work thoroughly, and the result is a comprehensive, prac tical, and thorough Law Dictionary. All words and phrases of legal significance are given, and some twenty-three thousand cases besides Standard Text books and Law Periodicals are cited. It is an indis pensable work to all members of the legal profession. Our Republic- By Prof. M. B. C. True and Hon. John W. Dickinson. Leach, Shewell, & Sanborn, Publishers, Boston and New York. This little work, which is a text-book upon the civil government of the United States, is designed by the authors to promote a systematic study of civil government in our common schools. The subject is treated under the following heads : The State; Civil Polity; Division of Powers; Relations of the States. To these are added the Declaration of Rights, Articles of Confederation, Declaration of Independence, and the Constitution. The different chapters are subdivided into short sections, each with an appropriate heading. The work seems to be so admirably adapted for its purpose, and the inportance of the subject of which it treats is such, that its usefulness as a text-book in our schools cannot be doubted. 180|The Green Bag.|}}

The Conflict of Judicial Decisions. By Wil liam H. Bailey, LL.U. M. Curlander, LawPublisher, Baltimore, 1888. $5.50 net. This work is peculiar in one respect. There is, so far as we know, nothing like it in our legal litera ture. It is not, as might be supposed, a treatise on the conflict of laws, but the author's design is to show how the various courts have differed in their judgment of certain important subjects. The great usefulness of the work cannot fail to be appreciated

by any lawyer who will carefully examine it. Here, by a rapid glance, he may see at once the posi tion of the various -courts of last resort with refer ence to the many topics included in its pages. The text covers four hundred pages; the table of cases cited, seventy-six pages. Great care and much labor have evidently been expended by the author in the gathering and arranging the cases pro and con, upon the different judicial questions. The work is certainly one of great practical value to

the profession. The

Vol. I.

No. 5.




May, 1889.

JUSTICE STANLEY MATTHEWS. STANLEY MATTHEWS, Associate Jus^ tice of the Supreme Court of the United States, died in Washington, March 22, 1889. In his death the country mourns the loss of a great advocate, and a judge of remarkable ability. Stanley Matthews was born in Cincin nati July 21, 1824, and sixteen years later was graduated at Kenyon College. After studying law he was admitted to the bar of Maury County, Tennessee, but returning to Cincinnati shortly afterwards, he soon became recognized as one of the most promising young lawyers of Qhio. With the early op ponents of slavery he joined hands cordially, and in 1846-1849 was an assistant editor of the Cincinnati " Herald," which was the first anti-slavery paper published in that city. Two years later he was elevated from the bar to the bench, becoming judge of the Court of Common Pleas of Hanover County, Ohio. In 1855 he was elected a member of the State Senate, and in 1 858-1 861 was United States Attorney for the Southern District of Ohio. His interest in the abolition of slavery carried him into the war as lieutenant-colo nel of the Twenty-third Ohio Regiment. His command was first located in West Vir ginia, participating in the battles of Rich Mountain and Carnifex Ferry. In October, 1 86 1, he became colonel of the Fifty-seventh Ohio Regiment, and in that capacity com manded a brigade in the Army of the Cum berland, and was engaged at Dobb's Ferry, Murfreesborough, Chickamauga, and Look out Mountain. He resigned from the army in 1863 to ac25

cept a seat on the bench of the Superior Court of Cincinnati. This seat Judge Mat thews held only one year, however, as he felt it incumbent on him to return to the more profitable practice of his profession. In the years following, he was also able to take a more active part in public affairs. In 1864 he was a presidential elector on the Lincoln and Johnson ticket; and in the same year he was a delegate from the Presbytery of Cin cinnati to the General Assembly of the Pres byterian Church in Newark, N. J., and as one of the Committee on Bills and Overtures reported the resolutions that were adopted by the Assembly on the subject of slavery. Four years later he was a presidential elector on the Grant and Colfax ticket, and in 1876 he was defeated for Congress on the Repub lican ticket. His name was among those con sidered for a place in the Supreme Court of the United States when the late Chief-Jus tice Waite was appointed. It was in 1877 that Mr. Matthews first attracted national attention, when he, as one of the counsel before the Electoral Commis sion, opened the argument in behalf of the Republican electors in the Florida case, and also made the principal argument in the Oregon matter. In March of the same year he was chosen by the Ohio Legislature to the seat in the United States Senate made vacant by John Sherman's confirmation as Secretary of the Treasury. Senator Mat thews remained in office until March, 1879, and during that period introduced in the Senate the resolutions that were passed in favor of the restoration of the silver dollar to rank as lawful money. His general course 182|The Green Bag.|}}

in the Senate, however, was such as to arouse strong opposition when, in 1 88 1, his name was sent to that body to be Associate Justice of the Supreme Court. Admitting his abilities as a lawyer, it was argued that he had displayed such a lack of knowledge and judgment upon many impor tant public questions as to make his elevation to the court of last resort highly injudicious and, many claimed, even dangerous. It was also. felt in many quarters that his nomina tion by President Hayes for so high a judicial office was very unbecoming in view of Mr. Matthews's active participation in removing the objections to Mr. Hayes's inauguration. These objections, backed by the strong oppo sition of Senator Conkling, prevented a con firmation of the nomination. It was renewed by President Garfield soon after his acces sion. It was held under consideration by the Senate Judiciary Committee for weeks, and on May 9 was reported adversely. Curi ously enough, the only vote for a favorable report by the committee was said to have been cast by Mr. Lamar. Against confir mation were arrayed, it is said, Messrs. Edmunds, Logan, Ingalls, McMillan, Davis of Illinois, and Bayard. But when the report came up before the Senate in executive session, on May 1 2, the nomination was con firmed by a vote of yeas, 22; nays, 21. The affirmative and negative totals were about equally divided between the two political parties. After his elevation to the bench, Mr. Mat thews showed himself to be eminently pos sessed of all those qualities which go to make up the honest, conscientious, and impartial judge. Those who had most strongly op posed his appointment were forced in the end to acknowledge that there had been no mis take made. The tributes paid to his memory show the estimation in which he was held by those who were intimately associated with him. Senator Evarts says; — "Stanley Matthews was a noble figure in all the affairs of public and common interest to the coun try. He was a noble figure in the dignity of his

person and the grace of his demeanor. He was a noble figure in our great profession, upon whose power, upon whose intrepidity, such vast interests of society, of government, and of the administra tion of justice depend. He was a noble figure, although for so brief a period, in the soldiery of the people, a volunteer to fight his share in a great contest on which hung the fate of his country. He was a noble figure on the bench, to the profession and the lawyers of the country, and in every respect in which a lawyer is to be regarded. He was a noble figure in all the great interests and duties which permeate, enlighten, and purify our society, without which our numbers and our wealth will not continue our permanency among the nations of the earth. And in that greatest of all spheres, char acter, there was in him neither variableness nor shadow of turning." Chief-Justice Fuller, in response to the resolutions presented to the Supreme Court by the Bar Association, thus sums up his estimation of his late associate : — "Before he came to grace a seat upon this bench Mr. Justice Matthews had in high public place — political, professional, and judicial — ac quired eminent distinction, and displayed the qual ities which invite attention and command admiration and respect; while as a member of the bar his conspicuous ability, faithfulness, and integrity had given him a rank second to none, and the felicity was also his of having rendered his country gallant service as a soldier. He brought here the gar nered wisdom of years of varied experience, and constantly added to it the fruit of cultivation in this exalted field of exertion, whose margin faded before him as he moved, growing in strength with exigencies requiring the putting forth of all his powers. In intercourse with counsel cordial but dignified; conscientious in investigation; honest and impartial in judgment; full of resource in supporting given conclusions by accurate and dis criminate reasoning; ample in learning and com prehensive in scholarship; luminous in exposition and apt in illustration, — he demonstrated such fit ness for this sphere of action that his removal in the midst of his usefulness cannot but be regarded as a severe loss to the bar, the judiciary, and the country. "To the associates of years, of personal com panionship in the administration of justice, that loss A Peculiar Charity. is quite unspeakable. The ties between those thus thrown into close intimacy are extremely strong; and when one is taken away upon whose painstak ing scrutiny, clearness in explanation, and fulness of knowledge reliance has been justly reposed by his brethren, and whose amenity of temper and kindness of heart have naturally inspired affection, a keen sense of personal bereavement mingles with common sorrow.

"In view of a life like this, crowned with the success that waits upon absolute devotion to duty, how false the desponding exclamation of the preach er, ' That that which now is, in the days to come shall all be forgotten.' "The remembrance of the just and wise is with the generations always, and the works of this faith ful public servant will follow him ' in the days to come,' now that he rests from his labors."

A PECULIAR CHARITY. Bv George F. Tucker. ON the 10th of August, 1878, a little old man died in a cottage in the outskirts of Boston. So quietly had he lived, and so disinclined had he been to seek associates or to make friends, that it was some time after his decease before that event was known to those who resided in the immedi ate neighborhood. To the people he had been known as a mechanic who, no longer able to work, was eking out his last days upon a pittance saved from his former wages. And yet this uninteresting man of bent form and sober countenance left an estate valued at nearly one hundred thou sand dollars, which he disposed of by will in a way highly creditable to his intentions and instincts, but which disclosed a unique and unexampled method of conferring a public benefit. His extraction was humble; he was born in the State of Maine, and came to Boston, a penniless and friendless boy, in the early days of the century. He obtained employ ment, and in the course of time became an average mechanic. He never earned more than ordinary wages; but as he was un married and had no one dependent upon him for support, he was enabled, through diligence and frugality, to lay aside each year a small sum of money. These savings were safely invested, and every few years, after they had attained to respectable pro

portions, were exchanged for productive real estate. Thus the savings of a lifetime, in creased by the accumulations of interest and rents and the continual enhancement of the investments in real estate, amounted at his death to ninety-seven thousand dollars. While the man's endowments were meagre, his education limited, and many of hLs views narrow, he was by no means a fool. He cul tivated a taste for reading, and the entire absence of domestic engagements and re sponsibilities afforded considerable time for this kind of enjoyment. He took a lively interest in public affairs, and entertained strong preferences and dislikes. He was generally reticent, and rarely expressed his views except by the briefest approval or disapproval of the subject under discussion. His only adviser was a lawyer of ability and good standing, who, as will be seen, faithfully carried out the peculiar instructions of his client. Intimations of age and infirmity suggested the necessity of making a will. The old me chanic had long entertained the idea of be stowing his wealth upon the public, but his personal knowledge of the mismanagement of several estates bequeathed for charitable purposes inspired him with the determina tion to provide for the disposal of his own property in the fairest and most economical manner Upon consultation with the lawyer |The Green Bag.|}}

a will and letter of instructions were drawn and executed; and not many months after, the old man was carried to the grave. The will was as follows : — Know All Men by These Presents. That I, S H , of Boston, Massachusetts, do make this my last will and testament. After the payment of my just debts and funeral expenses, I give, devise, and bequeath all the es tate, both real and personal, of which I shall die seized and possessed and to which I may be en titled at the time of my decease to R E of said Boston and to his heirs and assigns forever. I constitute and appoint the said R E the executor of this will, and exempt him from giving a surety or sureties on his official bond. In Witness whereof I have hereunto set my hand and seal this 5th day of April, a. d. 1878. S H . Attestation clause with I SeAl three witnesses. ' Simultaneously the testator signed the letter of instructions referred to above. It was carefully drawn by the attorney con formably to notes furnished him by the tes tator, and was as follows : — Koston, April 5, 1878. To R E of Boston, Massachusetts. I have this day executed my last will, in which you are named executor and sole legatee. While by the terms of that instrument you are given the unrestricted use of my entire estate, yet I feel confident that you will comply with the in structions herein given, although they may have no legal force and effect. My purpose in making no reference in the will to my real intentions is to avoid publicity, and also the expenses and em barrassments of possible litigation. However, I have no fear of any attempts to disturb the provi sions of the will on the grounds of insanity or un due influence, as I have no near relatives, and am also generally believed to have meagre pecuniary resources. It has long been my purpose to confer some benefit on the people. It is my impression that many bequests of benevolent testators are faith fully carried out; but I have heard of the misap

propriation in some cases of funds given for chari table purposes, and I am aware that the course of events often interferes with original plans, and thus thwarts the cherished intentions of testators. In these latter cases recourse is had to the courts, — a proceeding probably never contemplated by the founders of trusts. To avoid a result of this kind, I request you to dispose of the property given you by the will in the manner indicated below. You may use your judgment as to the manage ment of my estate for two years succeeding the day of the probate of my will. At the expiration of said two years (my debts, which will be found to be few and small in amount, having been first paid), I request you to convert my entire estate into money. From the proceeds I desire you to retain five thousand dollars, which you will receive both as a mark of personal esteem and as compen sation for your services in the settlement of my affairs. You will also retain six hundred dollars, which you will equally divide among the witnesses hereinafter referred to. The remainder of my es tate you are directed to turn into Legal Tender Notes, which you will then destroy in the following way. I request you to call in three reputable witnesses (the witnesses to my will preferred), upon whom strict secrecy shall be enjoined. You will make an accurate statement in writing of the numbers and denominations of the bills, and this statement you and the witnesses will sign after the bills have been burned in the presence of you all. You will thereupon send the statement to the Secretary of the United States Treasury at Wash ington, so that he may be informed of the descrip tion and number of bills thus forever withdrawn from circulation, with the instruction that the whole transaction is to remain a secret for the period of eight years. It is a matter of indiffer ence to me whether the transaction shall even then be made known to the world. Perhaps it will be better for the people to remain in ignorance of the slight benefit conferred upon them. I believe that I have always been called a pecu liar man, but I do not regard my purpose, just outlined, as in any sense extraordinary. These notes were originally issued as a war measure, and it is a reproach to our Government that they were not long ago redeemed. I propose to contribute my all towards their redemption, and thus, by bene fiting the Government, to benefit the people. As the bills of small value are the more likely to be Toombs. found in the possession of the people at large; and as, in my opinion, their fingers ought not to be soiled by irredeemable paper money, I request you, if possible, to destroy bills of the denomina tion of one, two, and five dollars. Exactly two years from the day upon which the will was proved, which was Sept. 29, 1878, the executor and the witnesses met agreeably to the testator's request. Bills had been provided, and their destruction, after a careful verification, proved a long and tedious undertaking. At last it was suc

cessfully accomplished, and a true statement signed and sworn to was sent to the Secre tary of the Treasury at Washington. On Sept. 29, 1888, the ten years had elapsed; but neither the authorities at Washington nor the executor and witnesses, all of whom were living, manifested any desire to publish the transaction. The will and letter of instruc tions were recently brought to the notice of the writer, and he takes this occasion to make public the curious and perhaps credi table generosity of a peculiar man.

TOOMBS. By Hon. L. E. Bleckley. A LION harmless to the weakest lamb, Though fiercely scorning like a lamb to be: His ruling passion to be wild and free As winds and waves, with no compulsive calm Save God's. To God alone he tuned the psalm, Or bowed the head, or uttered prayer or plea; To none but God he ever bent the knee, Or incense burned, or offered bull or ram. His mind was Space and Time in Spirit swung; His brain was Reason's self encased in bone; His speech the Summer Storm with human tongue, — A storm of logic thundered from a throne. O'er all our hearts his sceptre might have hung, Had he but learned to tame and rule his own. April, 1889.

Green Bag Vol. 1 p. 71 tailpiece.jpg

|The Green Bag.|}}

THE CRIMINAL CODE OF THE ANGLO-SAXONS. r yHE criminal code of the Anglo-Saxons A will be found, by the general reader, more interesting than any other branch of the laws of that remarkable people. The grand principle remarkable in their criminal laws, and in those of German nations generally, is pecuniary punishment. The Saxons made many distinctions in homicides; but the lives of all men were, not of equal value in the estimation of the law. Every man was valued, according to his rank, at a certain sum, which was called his " were; " and whoever took another's life was punished by having to pay this " were " to the family or relatives of the deceased, as a compensation for the loss of his life. The "were," whose amount was thus regulated by a regard to the different ranks in society, became, nevertheless, augmented from time to time; greater pecuniary value being as signed to human life as order and civilization appear to have increased. If the person slain was an esne, a slave, the " were " seems to have become the prop erty of the lord. On the murder of a for eigner, two thirds of the " were " went to the king, and one third only to his son or rela tives; if the deceased had no relatives, the king had one half, and the " gild-scipe," or fraternity with which he was associated, re ceived the other. The laws of Edward and Guthrun required the punctual payment of the " were " (which was to be made, it would seem, within forty days of the death;, to be secured by the responsibility of eight pater nal and four maternal relations. The killing of a thief was at one time exempted from the payment of the " were; " but this exemption was afterward made subject to the qualification under oath, that the thief was killed "sinning," — in the act of stealing, or in the act of fleeing on account of the theft. Our Saxon ancestors, however, were not so ignorant of the true principles of criminal

jurisprudence as to fail in recognizing in homicide the public crime, and in awarding to the community accordingly a recompense for the wrong inflicted on society. Hence, beside the redress assigned to the family of the deceased, another pecuniary fine was imposed on the man-slayer; this fine was called the " wite." It was paid generally to the magistrate in whose jurisdiction the of fence was committed; and its amount appears to have been regulated by reference as well to the dignity of the magistrate as to the rank of the deceased, and the circumstances under which the act was committed. The "wite " in a king's town was fifty shillings; in an eorl's, twelve. If the deceased was a freeman, the " wite " was fifty shillings to the king as lord of the land; if an eorl, six shillings was the " wite." So as to the place, — if the act was done at an open grave, the sum of twenty shillings was sometimes the "wite." If a laec killed the noblest guest, the " wite " was eighty shillings; if the next in rank, sixty; if the third, forty shilings. If the criminal fled from justice, his relations or the guild to which he belonged were made responsible for the payment of the "wite." Even in the case of what we term justifia ble homicide, the slayer was by no means free from responsibility; he was bound to make recompense to the family of the de ceased by payment of the " were," though he was not, under these circumstances, liable to the penalty of the " wite." The following extracts from the Laws of Alfred on the subject of injuries to the per son will be found remarkably curious. It can scarcely fail to occur to the reader that the principle on which the valuations were fixed was applied in many cases very capriciously. "If a man strike off another's nose, let him make 'hot ' [/. e. pay a fine], with ix. shillings. "If a man strike out another's tooth in the front Peter Bennett s Case.


of his head, let him make ' hot ' for it with viii. was threefold, and to the king the forfeiture shillings; if it l>e the canine tooth, let iv. shillings of all the offender's goods. The punishment be paid as ' bot.' A man's grinder is worth xv. bore some proportion, however, to the station ■ shillings. in life of the offender; for if not a freeman, "If a man's windpipe be pierced, let ' bot ' be he was subject to a twofold retribution only. made with xii. shillings.

By a subsequent law, a freeman taken with

"If a man strike out another's eye, or his hand or his foot off, there goeth like ' bot ' to all; vi. the thing stolen in his hand was completely pennies and vi. shillings and ix. shillings, and the 1 at the mercy of the king, who might kill "him, sell him, or receive his "were." (It third part of a penny. "If a man's tongue be done out of his head by may be assumed, therefore, that if the man another man's deeds, that shall be like as eye- was ivorl/t much, his Majesty's royal clem ency was usually extended to the sparing of ' bot.' "If a man be wounded on the shoulder so that the wretch's life.) the joint oil flow out, let ' bot ' be made with xxx. The amputation of the hand and foot of shillings. the thief was afterward added to his other "If the arm be broken above the elbow, there punishments, - a considerable drawback, no shall be xv. shillings as ' hot.' doubt, on the facilities and pleasures of "If the arm shanks be both broken, the ' bot' hand-craft and foot-pad occupations. is xxx. shillings. If the standard of morality existing among "If a man break another man's rib within the our Saxon forefathers is to be fixed by refer whole skin, let x. shillings be paid as ' hot; ' if the skin l>e broken, and bone be taken out, let xv. ence to nothing more than their legislative zeal on this subject, it must be admitted that shillings be paid as ' bot.' a comparison between the moral state of "If the thumb be struck off, for that shall be themselves and their successors would tend xxx. shillings as ' bot.' " but little to the credit of the latter. In Almost every conceivable injury to a man's awarding punishment for offences involving person is provided for in this curious set of immorality, the Anglo-Saxons did not depart laws, with valuations fixed as in the instances from their grand principle of pecuniary retri above cited. bution, — in fixing which they regarded, as a Theft and robbery appear to have been matter of course, the station of the female, esteemed by our Saxon forefathers as the or, to speak more correctly, the rank of her most enormous of crimes; theft was accord lord, husband, or father. The penalty in ingly rendered a highly expensive pursuit. some offences of this nature was as high as By one of the earliest of the Anglo-Saxon that for killing a freeman, and in some cases laws, the compensation to the injured party even more.

PETER BENNETT'S CASE. COME years ago, a doctor named Royston, ] and as there was nothing wherewith to rebut ^ down in Georgia, had sued Peter Ben- or offset the claim, the only thing left to do nett for his bill, long overdue, for attending was to pay it. the wife of the latter. Alex. H. Stephens "No," said Peter; " I hired you to speak wason the Bennett side, and Robert Toombs, to my case, and now speak." then Senator of the United States, was for Mr. Stephens told him there was nothing Dr. Royston. Mr. Stephens told his client 1 to say; he had looked on to see that it was that the physician had made out his case, i made out, and it was. 1 88|The Green Bag.|}}

Peter was obstinate; and at last Mr. Stephens told him to make a speech himself, if he thought one could be made. "I will," said Peter Bennett, "if Bobby Toombs won't be too hard on me." Senator Toombs promised, and Peter began : — "Gentlemen of the jury, — You and I is plain farmers, and if we don't stick together these 'ere lawyers and doctors will get the advantage of us. I ain't no lawyer nor doc tor, and I ain't no objections to them in their proper place; but they ain't farmers, gentle men of the jury. "Now, this man Royston was a new doctor, and I went for him for to come an' to doctor my wife's sore leg. And he come an' put some salve truck onto it, and some rags, but never done it one bit of good, gentlemen of the jury. I don't believe he is no doctor, no way. Thar is doctors as is doctors, sure enough; but this man don't earn his money, and if you send for him, as Mrs. Sarah At kinson did for a negro boy as worth g>t,ooo, he just kills him and wants pay for it." "I don't," thundered the doctor. "Did you cure him? " asked Peter, with the slow accents of a judge with the black cap on. The doctor was silent, and Peter proceeded : "As I was a sayin', gentlemen of the jury, we farmers, when we sell our cotton, has got to give valley for the money we ask, and doctors ain't none too good to be put to the same rule. And I don't believe this Sam Royston is no doctor, nohow." The physician again put in his oar with, "Look at my diploma, if you think I am no doctor." "His diploma! " exclaimed the new-fledged orator, with great contempt, — " his diploma! Gentlemen, that is a big word for printed sheepskin, and it did n't make no doctor of the sheep as first wore it, nor does it of the man as now carries it. A good newspaper has more in it, and I pint out to you that he ain't no doctor at all." The man of medicine was now in a fury,

and screamed out : " Ask my patients if I am not a doctor! " "I asked my wife," retorted Peter, " an' she said as how she thought you was n't." "Ask my other patients," said Dr. Royston. This seemed to be the straw that broke the camel's back; for Peter replied, with look and tone of unutterable sadness, — "That is a hard sayin', gentlemen of the jury, and one as requires me to die or to have power as I 've hearn tell ceased to be exercised since the Apostles. Does he ex pect me to bring the angel Gabriel down to toot his horn before his time, and cry aloud, ' Awake, ye dead, and tell this court and jury your opinion of Royston's practice'? Am I to go to the lonely churchyard and rap on the silent tomb, and say to um as is at last at rest from physic and doctor bills, ' Git up here, you, and state if you died a nateral death, or was hurried up by some doctors'? He says, ask his patients; and, gentlemen of the jury, they are all dead! Where is Mrs. Beazley's man Sam? Go ask the worms in the graveyard where he lies. Mr. Peake's woman Sarah was attended by him, and her funeral was appinted and he had the corpse ready. Where is that likely Bill as belonged to Mr. Mitchell? Now in glory, a' expressin' his opinion of Royston's doctrin'. Where is that baby gal of Harry Stephen's? She are where doctors cease from troublin' and the infants are at rest. "Gentlemen of the jury, he has et chicken enough at my house to pay for his salve, and I furnished the rags, and I don't suppose -he charges for makin' of her worse, and even he don't pretend to charge for curin' of her, and I am humbly thankful that he never give her nothin' for her inwards, as he did his other patients, for somethin' made um all die mighty sudden — " Here the applause made the speaker sit down in great confusion; and in spite of a logical restatement of the case by Senator Toombs, the doctor lost and Peter Bennett won. — Kentucky Law Journal. Michigan University Law School.


LAW SCHOOL BUILDING. LAW SCHOOL OF THE UNIVERSITY OF MICHIGAN. By Henry Wade Rogers, Dean of the Department of Law of the University of Michigan. ' I HE University of Michigan is one of the two largest universities in the United States, and this position it has at tained within a comparatively few years. In June, 1887, it celebrated its semi-centennial; and the University Calendar this year issued shows a Faculty roll of one hundred and eight professors, instructors, and assistants, as well as the names of eighteen hundred and eighty-two students. Harvard Univer sity, founded in 1636, and the oldest institu tion of learning in the country, celebrating its two hundred and fiftieth anniversary in November, 1886, leads it in numbers by only seventeen students. In 1871 the Hon. James B. Angell, LL.D., became President of the University of Michigan, and from that time to the present has con tinued to act in that capacity, with the ex26

ception of the period in which he served the country as Minister to China, and more re cently while he was acting as a member of the Fishery Commission intrusted with the delicate duty of attempting an adjustment of the difficulties existing between the United States and Great Britain. He has the satis faction of knowing that during his admin istration the University of Michigan has grown from an institution with eleven hun dred and ten students and a Faculty roll of thirty-six, to its present proportions. The founders of the State of Michigan and their descendants have kept in sacred remembrance that memorable article in the Ordinance of 1787, which proclaims that; "religion, morality, and knowledge being necessary to good government and the hap piness of mankind, schools and the means ig0|The Green Bag.|}}

of education shall forever be encouraged;" . and the authorities of the University have inscribed those words in glowing letters on their University Hall. This was fitting, for the sentiment is the corner-stone on which the whole University has been reared. It . was founded by the State and is maintained by the State, but its students come from every quarter of the globe. During the present year its students are drawn from thirty-five of the thirty-eight States and from five of the Territories, as well as from England, Germany, Russia, Japan, Turkey, Italy, Hungary, New Zealand, Porto Rico, Nova Scotia, Hawaiian Islands, Manitoba, Province of Quebec, Province of Ontario, and Mexico. The University of Michigan is composed of a College of Liberal Arts, termed the Department of Literature, Science, and the Arts; a School of Law; two Schools of Medicine, — the Department of Medicine and Surgery or " regular " school, and the Ho moeopathic Medical College; a School of Pharmacy; and a College of Dental Surgery. The Department of Literature, Science, and the Arts was first established, but its devel opment was slow. Even in 1850 the Board of Visitors in an official report declared that there were only fifty students at that time in actual attendance in that Department. In 1850 the Department of Medicine and Sur gery was established, and in 1859 tne De partment of Law. The opening of these Departments, although so late in accomplish ment, was in accordance with the original plan drafted by the first Superintendent of Public Instruction in Michigan. It is a sig nificant fact, which has been commented on more than once, that the establishment of the Schools of Law and of Medicine con tributed much to a rapid increase in the number of students in the Department of Literature, Science, and the Arts. If we keep in mind the ideas which have prevailed until recently in reference to legal education, we shall be impressed by the wise foresight and liberal views of the men who

shaped the educational policy of the State of Michigan, in that they consented thirty years ago to establish a School of Law in their State University. Not that it is matter for astonishment that the State should consent to tax itself for the education of physicians and lawyers. If the State is justified in tax ing the people for public education, if it can tax them to teach the scholar to read the languages of other peoples, to analyze the structure of the flowers, to read the story of the earth as written upon the rocks, no one should question its right to teach the physi cian to heal the sick, and the lawyer to ad vise the citizen for the protection of his rights to life, liberty, and property. The State is a means to an end. It is charged with the protection of the public health, and it exists to protect the rights of its citizens and to secure the administration of justice. But the administration of justice is only pos sible when there exists a body of men trained in a knowledge of the laws, and made com petent to administer them as judges on the bench, and as lawyers at the bar to ad vise the court and counsel the oppressed. • If the State can teach anything more than the elementary branches at public expense, it certainly should be able to teach a knowl edge of the law. But the wisdom of the people of Michigan in establishing a law school is seen when we reflect that they dis carded the old notion that the place to learn law is in a lawyer's office, rather than in a University. A law school was established because it was thought that there the law could best be learned. Professor Bryce, in his " American Com monwealth," comments on " the extraordinary excellence of many of the law schools " of the United States, and adds : " I do not know if there is anything in which America has advanced more beyond the mother country than in the provision she makes for legal education." The compliment is not unde served; for every one knows, who knows anything about the history of legal educa tion, that England has been behind almost Michigan University Law School, every civilized country of the world in awak ening to a realization of the fact of the ne cessity and advantages of schools of law. Even Japan has a law school in which a thousand students are to-day engaged in studying the English system of jurispru dence. Upon the continent of Europe the law school has always been deemed indis pensable. Bologna, now the most ancient


was represented there. The fact is, and has been for centuries, that in most of the coun tries of Europe men enter the profession of the law through the Universities. But as recently as 1 850, when Professor Amos came to the chair of English Law in the famous old University of Cambridge, the class of Eng lish Law in that institution could be counted on the fingers of one hand. It consisted of

THOMAS M. COOLEY. University in existence, was originally purely a law university, and law so predominated there that students of arts and of medicine were admitted only by enrolment in the law university, and on swearing obedience to its officers. Padua was likewise originally a law university, as were all the other Italian Universities with the possible exception of Salerno and perhaps Perugia. In France, Orleans, Bourges, and Poitiers are said to have been distinctively law universities; while Paris was distinctively a philosophi cal and theological university, although law

one A.M., one A.B., and two undergraduates. Of course the Inns of Court constituted a species of law school, and date back to an early period in English history, — that of Lin coln's Inn to the time of Edward II., and that of Gray's Inn to the time of Edward I [I. They were moreover well attended, as we learn from Chancellor Fortescue. But they were a poor apology for the modern law school as we know it in the United States or as it is known in Germany. In the Inns of Court young men " dined " themselves into the profession. Within the last ten 192|The Green Bag.|}}

years there .has been a marked change of sentiment in England in the matter of legal education, and law has now gained a proper recognition in the English Universities. If the United States are distinguished from England in the excellence of their law schools, it is nevertheless true that the American law school is comparatively a late development. The American lawyer, trained under the English system of juris prudence and familiar with the English ideas as to legal education, for a long time thought that law could best be learned in a law office. The result was that medical and divinity schools both won their place before law schools were able to gain recognition. The medical profession were the first to establish professional schools in the United States, a school of medicine having been opened in Philadelphia in 1765, five others being estab lished before 1800. While the first divinity school was not opened until 1804, by 1812 the leading denominations had established their distinctive theological seminaries. Al though a law school was founded at Litch field, Conn., in 1784, it existed as the solitary institution of its kind in the United States until 1 8 1 7, when the Harvard Law School was established. And in 1859, when the Law Department of the University of Michi gan was opened, there were few law schools in the United States, although to-day there are fifty such schools, located in different parts of the country. Under all the circum stances, therefore, the people of Michigan, in establishing thirty years ago a Law School as a State institution, are entitled to com mendation. As a matter of fact, however, the Michigan Law School has not been a burden to the tax-payers of the State. It has not only paid its own way, but has actu ally made money for the State. And in this respect, at least, it has a record which no de partment connected with the University can approach. The Faculty of the Law School, as origi nally constituted, and as it remained for many years, consisted of Thomas M. Cooley, James

V. Campbell, and Charles I. Walker. Judge Cooley lived at Ann Arbor; the other gentle men resided in Detroit, coming to Ann Ar bor from time to time to deliver their lectures. The Faculty organized on Monday, Oct. 3, 1859, by electing Judge Campbell dean, and Mr. Cooley — for he had not at that time been advanced to the bench of the Supreme Court — Secretary of the Faculty. On the afternoon of that day Judge Campbell de livered the opening address in the Presby terian Church, before the law class and the public generally, taking for his theme " The Study of the Law." At that time the Law School had no building of its own, and the regular lectures of the school were delivered in a room on the lower floor of what is now known as the north wing of University Hall. The first lecture to the law students as a body was delivered by Professor Walker on Tues day, October 4, and his subject was " The Advantages to be expected from the Law School, and the Mode of Conducting it." This was followed on the next day by a lecture from him on the "Law of Personal Property;" and the work was fairly under way. Professor Cooley's first lecture was delivered on October 6, the subject being "The Origin of Title to Real Estate in America; " and Professor Campbell's on October 10, " The History of the Com mon Law as connected with the Equitable Jurisdiction." The first moot-court case was heard on October 13, Professor Cooley sitting as judge. From the time the work of the school be gan (in 1859) to 1886, instruction was given to both classes in common, the Calendar of the University stating that "the course of in struction for the two terms has been carefully arranged with a view to enable students to enter profitably at any stage of their studies, and it is not important which course of lec tures is first taken." And this, at the time it was adopted, was the course usually pur sued in the law schools of the United States. But in 1886 the Faculty favored the adoption of a graded system of instruction; and as Michigan University Law School. their recommendation to that effect was ap proved by the Board of Regents, the change was made. President Angell, in his Report to the Board made in October, 1886, thus refers to the matter : — "The demands upon the students in the Law Department have been made, during the past year, more exacting and rigorous than ever before, and the Faculty have decided to introduce the most important change which has been made in the method of the school since its establishment. They have graded the course, and instruction will in the main be given separately to the two classes. The training will, we believe, be more thorough and systematic and effective than it has ever before been." And in. his Report for the year following, he again recurs to the subject as follows : — "In the Law Department the experiment of grading the course has been successful in a gratify ing degree. Both teachers and students heartily approve of it. More thorough, systematic, and efficient work is secured by it. The instruction is to be enriched during the coming year by brief courses of lectures on various subjects by distin guished specialists. We may well believe, there fore, that the reputation of the Law School, which had so prosperous a life from its foundation, will be deservedly enhanced during the coming year." As reference is made in the above excerpts to the greater thoroughness and efficiency of the work of the school, the writer ventures again to quote from the President's last Re port, made to the Board in October, 1888, when he said : — "The work of the Law Department has been carried on in a very satisfactory manner. . . The standard of work required of the students has been materially raised during the last two or three years, and the examinations for graduation are more stringent than they ever were before." There are three systems of instruction in law, each of which has its merits and its de merits. The mode of teaching law by lec tures is the mode which has been pursued in the German universities, as well as in Kng-


land, and generally in the United States. Some of the law schools in this country have declined to adopt it as a method of instruc tion, preferring to make use of text-books for that purpose; and notably in one school both these modes have been practically rejected in favor of learning the law through a study of leading cases. Blackstone and Kent taught the law by lectures, and so did Story and Greenleaf. For many years the exclu sive method of instruction pursued in the Michigan Law School was by means of lec tures, the students being required to take full notes of what was said, with citations of cases. On each day at the close of the lec ture, or before it commenced, the class was "quizzed " by the professor as to the contents of the lecture previously delivered by him. The method of instruction by lectures is still pursued, but no longer to the exclusion of the other modes of instruction. The professor quizzes on his preceding lecture for half an hour, and then lectures for an hour and a quarter. When both classes listened to the same lecture, it was not thought practicable, in the time that could be devoted to the pur pose, to quiz any but members of the senior class, and the junior class were silent specta tors of what was going on about them. They listened to the lectures, but were asked no questions until their senior year, when they were examined on the lectures of both years. The best results could not be attained in this way, and those who could attend but one year, and as members of the junior class, did not reap the benefit they might have obtained had a different course been practicable. But since the separation of the classes and the adoption of the graded system, both classes are quizzed impartially, and the junior year is thereby made much more important than it was before the change was effected. But while the lecture system continues to find the most favor, the fact is conceded that on some subjects text-book instruction may be employed with advantage. Blackstone's Commentaries, which are simply Hlackstone's printed lectures, are put into the hands of 1 94|The Green Bag.|}}

the junior class, and they are required to of such a system. Years ago Mr. Justice Bailey of the King's Bench deprecated even master thoroughly certain prescribed por the use of text-books of any kind for a student tions. The introduction of this text-book of law, and declared that he would have him work was made about 1879. Within the " read the cases for himself, and attend to last few years the amount of that work has the application of them in practice." It has been materially increased, and extended to always seemed to the writer that life was too the senior class. In addition to Blackstone's short and the time that a student could spend Commentaries, the juniors are required to in a law school was altogether too limited make a thorough study of Anson on Con to permit one's acquirtracts, and Stephen on inga knowledge of law Pleading. Members simply through of the senior class from of cases, and that while the Code States are such a system might required to attend re citations in Bliss on be advantageously used with students Code Pleading. One whose intellectual objection to an exten powers had been thor sive use of text-books oughly developed and in law schools has whose mental grip was been due to the fact strong, it was quite unthat the most of our suited to the average text-books on law have been written for the student. While the use of practitioners, system has not been and have been unsuit adopted in its entirety able for the use of stu in the Michigan Law dents commencingthe School, a study of the study of law, who wish leading cases has not to become familiar been neglected, but with principles, and has been insisted on not to be burdened to such an extent as with details. More in the judgment of the Faculty was deemed over, it must be con


advisable. ceded that spoken words are more im The purpose of the pressive than words that are read. So that, school is to give instruction that shall fit while the Faculty have recognized the fact students for practice in any part of the that certain advantages may be derived from country; and the course of lectures now de a judicious use of text-books, it has not been livered is as follows : — thought best in the Michigan Law School To the Junior Class. to adopt that method of instruction to the exclusion of the lecture system. The en The Law of the Domestic Relations. Professor deavor has been to make a wise use of both Rogers. methods. Torts. Professor Rogers. The idea that law should be learned Pleading and Practice. Professor Griffin. through a study of leading cases is not a Personal Property and Title thereto, by Gift, new one, although the Harvard School has Sale, Mortgage, and Assignment. Professor Griffin. been the first to make any extensive use Michigan University Law School.


man or Italian universities, but the American law school adopts the Italian idea that at tendance on the lectures should be compul sory. In the Michigan Law School a student who neglected attendance upon the lectures would not even be admitted to examination. He would find himself either summarily "dropped" or required to take the work over again the next year. The fact is recognized that it is desirable to combine theory and practice in the regu To the Senior Class. lar work of the school, and such a course is Criminal Law, and Medical Questions bearing on pursued in so far as it has appeared practi it. Professor Rogers. cable. With this end in view, moot courts Wills : their Execution, Revocation, and Construc are held, in which students not only discuss tion. Professor Rogers. cases previously assigned them for that pur The Administration and Distribution of Estates pose by the Faculty, but are required to of Deceased Persons. Professor Rogers. draft appropriate pleadings and prepare a Jurisprudence of the United States. Professor brief in which the rules of law applicable Griffin. to the given case are stated under ap Evidence. Professor Griffin. propriate divisions and sustained by the au Constitutional Law. Professor Wells. Hills and Notes, and Commercial Law Generally. thorities. These courts are presided over by the professor lecturing for the day, who Professor Wells. The Law of Municipal Corporations. Professor at the conclusion of the argument reviews WELLS. the case and gives his decision upon the The Law of Real Property. Professor Thompson points involved. The effort to make not Equity Jurisprudence, and Equity Pleading and merely theoretical but practical lawyers may Procedure. Professor Thompson. be illustrated by a reference to the course Mining Law. Professor Thompson. pursued in the teaching of equity pleading Law of Carriers. Assistant Professor Knowlton. and procedure. Insurance Law. Dr. Bigelow. The class is divided into sections of four Admiralty Law. Judge Brown. each

and each section is required to conduct

History of the Common Law. Dr. Hammond. two cases in equity through all their stages, Special Heads of Medical Jurisprudence. from the filing of the original bills to the enrolment of the final decrees, two of the Toxicology in its Legal Relations. Dr. Vaughan. section acting as solicitors for the complai Legal Microscopy. Dr. Stowell. nant in one case, and as solicitors for the In the great schools of law in Germany defendant in the other. For these suits attendance on lectures is not generally com statements of fact are prepared which, in pulsory, and although the course is most com the aggregate, involve questions in every prehensive, familiarity with a few selected branch of equity jurisdiction, and necessitate subjects appears to be all that is necessary the use of every form of equity pleading. for graduation; while in Italy, as we are These statements of fact involve not only informed, the law students reach graduation questions of pleading and procedure but also only " after due attendance with diligenza at questions of law, so that the glamour of a lectures on a great variety of subjects." The legal doubt is thrown over each case, and curriculum of an American law school is success is made to depend upon skill in not as comprehensive as in either the Ger pleading combined with knowledge of equity Contracts. Professor Wells. Agency. Professor Weli.s. Private Corporations. Professor Wells. Partnership. Professor Wells. History of Real Property Law. Professor Thomp son. Fixtures Professor Thompson. Easements. Professor Thompson. Landlord and Tenant. Professor Thompson. Bailments. Assistant Professor Knovvlton. Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/211 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/212 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/213 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/214 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/215 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/216 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/217 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/218 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/219 Duplicate of Page:The Green Bag (1889–1914), Volume 01.pdf/220 law. The moot court is presided over by Professor Thompson, to whom the subject of equity belongs. In causes where students from the State of Michigan appear as solicitors the proceedings are governed by the rules in chancery of the circuit courts of that State; in those cases where the solicitors are students from other States, the proceedings are governed by the rules in chancery of the United States Circuit Courts. There is a Register in Chancery, and the records of the court are carefully and systematically kept, and all the proceedings made to conform strictly to like proceedings and causes in a United States circuit court, or a circuit court in Michigan sitting in Chancery.

This plan involves the hearing of from seventy-five to one hundred distinct causes in Chancery; and it is believed, since each student is personally interested in at least two of the cases, and necessarily hears arguments upon a great variety of motions and other interlocutory proceedings, as well as arguments upon demurrers, pleas, and bills and answers, that he acquires a more comprehensive, critical, and practical knowledge of equity pleading, procedure, and jurisdiction than he could obtain during the same time in any law office.

Provision is also made in the Law School for instruction in elocution and oratory, under the direction of Thomas C. Trueblood, A.M. It is thought to be a mistake to suppose that excellency in speaking is simply a gift of nature, and not the result of patient and persistent labor and study.

From the time the Law School was established until 1884, the period of instruction included two terms of six months each, commencing in October and ending in March. It was determined in 1883 to extend the period to two terms of nine months each, the change going into effect, as we have said, in the following year. There has been more or less difference of opinion as to the time which should be spent in a law school in the study of law. The mode of teaching pursued in the law schools of the Roman Empire covered a period of five years. In the University of Italy the law curriculum covers a period of four years, about a thousand students being made Doctors of Law each year. But in this country, at the time the Michigan Law School opened its doors, it was the prevalent opinion that two terms of six months each was all the time needed for the preparation which a law school should undertake to impart. Experience demonstrated that this period was too short for the work to be accomplished, and the time was accordingly extended. Some of the law schools of the country have already decided that this time is also too short for the proper performance of their work, and have accordingly lengthened their course to three years. Such a change is now under consideration in connection with the Michigan Law School. If it is decided to make the change, and to give the degree of Bachelor of Laws (LL.B.) only after a period of three years of study, it is not unlikely that the degree of Bachelor of Law (B.L.) will be conferred at the end of two years of study. It is not known that such a degree has ever been conferred by an American Law School, but it is conferred in the University of Edinburgh on those who pursue a course of law study for two years, and no reason is perceived why a plan that has worked admirably there should not be adopted here. The LL.B. degree is there conferred after three years of study of law, a degree in arts having been previously obtained. But in the United States a degree in arts or science is nowhere a condition precedent to the taking of a degree in law. As many students are unable to remain more than two years in a law school, and much valuable knowledge is acquired in that time, justice seems to require that where a course is lengthened to three years, some degree inferior to the LL.B. degree should be given at the end of the second year of study to those who choose to take it.

Michigan University Law School.


When the Law Department was established, the announcement made as to the

has passed a satisfactory examination in Arithme tic, Geography, Orthography, English Composi requirements for admission was as follows : tion, and the outlines of the History of the United "That the candidate shall be eighteen years States and of England. The examination will be of age, and be furnished with a certificate conducted in writing, and the papers submitted by giving satisfactory evidence of good moral the applicants must evince a competent knowledge of English Grammar." character." This statement continued in the Calendar of the University until 1877, The students in the Law School are drawn when an additional statement was made de from every part of the United States, as well

claring that it was as from foreign coun "expected that all tries, Japan alone this students will be well year sending to it grounded in at least a twelve students. This good English educa year's University Cal endar shows the fol tion, and capable of lowing States repre making use of the English language with sented in the Law De partment : Arkansas, accuracy and propri California, Colorado, ety." If the reader is Illinois, Indiana, Iowa, here disposed to criti cise, let him remem Kansas, Kentucky, Massachusetts, Michi ber that the other law gan, Minnesota, Mis schools throughout souri, Nebraska, Ne the country were then vada, New Hampshire, no more stringent in New York, Ohio, Ore their requirements governing the admis gon, Pennsylvania, sion of students than Tennessee, Vermont, the above statement Virginia, West Vir indicates, and that ginia, and Wisconsin. the most of them are The following Terri little better now in tories are represented: this respect than they Arizona, Dakota, Ida HENRY WADE ROGERS were then. But the ho, Montana, Utah, Michigan Law School and Washington. In has established a very different standard in addition, Japan, Manitoba, Nova Scotia, recent years, as will be seen from the fol New Brunswick, Province of Quebec, and lowing statement taken from its annual the Province of Ontario contribute their announcement : — quota. Students come from San Francisco in the west and Boston in the east, from "Graduates of colleges, and students who have honorably completed an academical or high-school Minnesota in the north, and Arkansas in course, and who present a certificate or diploma the south. Out of the four hundred stu from the academy or high school, will be admitted dents one hundred and two come from without preliminary examination. No student who Michigan. The following table shows the number of does not present such certificate or diploma will be admitted as a candidate for a degree, until he students in attendance since the Law School 27 198|The Green Bag.|}}

was opened, as appears from the University Calendar for the respective years. Vear. 1859- 60 1860-6l 1861-62 1862-63 1863-64 1864-65 IS65-66 1866-67 1867-68 1868-69 1869- 70 i870-71 1871-72 1872- 73 1873- 74 1 874- 75 1875- 76 1876-77 187778 1878-79 i879-80 1880-81 1881-82 •882-83 1883-84 1884-85 1885-86 1886-87 1887-88 1888-89


No. of Students. pO 159 I29 134 221 260 385 395 387 342 308 . 307 348 33i 3i4 345 321 309 . 384 406 • • 395 371 395 333 305 262 286 338 341 400

The decrease in 1884-85 was no doubt occasioned largely by the lengthening of the period of study. For every subsequent year there has been a steady gain, this year the number going up to four hundred. While the Calendar of the University so states the fig ures, as a matter of fact the Law Announce ment will show more than that number in attendance, and that since the Law School was opened there was never a larger body of students in attendance on its lectures than are there this year. Neither the rapid multi plication of law schools in different parts of the country, nor the fact that the standard re quired for admission and graduation has been materially advanced, have operated to de

crease the number of students in attendance. Probably no law school in the United States has a longer roll of Alumni than has this. More than thirty-five hundred of its gradu ates have gone forth to the active duties of their profession. Mr Justice Harlan, of the Supreme Court of the United States, has accepted an invitation, extended to him by the law alumni and undergraduates, to address them at the Commencement in June. Those familiar with the Law School have noted with pleasure the fact that an increased number of college-trained men arc here pur suing their law studies. The law students were quite jubilant because at a recent " Pro nouncing Contest" held in University Hall, at which the Law and Literary Depart ments were represented by picked men, the banner of victory floated over the Law Department. The Law Library is one of the best con nected with the Law Schools of the United States. For a number of years it was of humble proportions, but it has within the last five years been much augmented and improved. It now contains about ten thou sand volumes, embracing the reports of every State in the Union, as well as those of the Federal Courts, and a good collection of those of England, Ireland, and Canada. The current reports of the United States and of England are placed on the shelves as they are issued. The leading legal periodicals are regularly taken and kept on file, including the Law Quarterly Review (London), the Journal of Jurisprudence (Edinburgh), the Juridical Review (Edinburgh), the Amer ican Law Register, the American Law Re view, the Criminal Law Magazine, the Albany Law Journal, the Central Law Journal, and the Federal Reporter. Students from any State in the Union are thus enabled not only to consult the reports of their own and other States, but to keep abreast of the best thought of the profession in this and other countries as it finds expression in the leading legal periodical literature, as well as in the 199 treatises of the best law-writers. The Law in using law, but experience in learning law." School in 1866 was presented by the Hon. To be a successful teacher of law surely Richard Fletcher, one of the Justices of requires distinctive gifts; and a man is not the Supreme Court of Massachusetts, with qualified for such a career simply because he his valuable law library. Again, in 1885, may have been successful as an advocate or Mr. C. H. Buhl, a wealthy and public-spirited trier of causes, or may have had an extended citizen of Detroit, presented the Law School experience at the bar or on the bench. In with the " Buhl Law Library," which was the Michigan Law School the. men who have valued at $15,000. These two gifts, with been engaged in the work of instruction have

such acquisitions as been for the most part have been made by men of extended ex the University author perience, either on the ities, make the Law bench or at the bar; Library an excellent and while it is true one, and it occupies a that such experience large and handsome does not of itself qual room on the first floor ify for the teaching of of the I-aw Building, law, it is equally true — the room formerly that it does not nec occupied by the Gen essarily disqualify, and eral Library of the they have been, hardly University. But ca without exception, pacious as is the room, men specially adapted the visitor to it on for that work. We every afternoon will understand that at find it full of young Harvard, Columbia, men diligently at work and Cornell Law examining authorities, Schools the professors are, as a rule, with and evidently as much in earnest as though drawn from practice, devoting themselves they were preparing for the argument of wholly to the teaching of the law. In the some important case LEVI T. OKIFKIN. in the courts. Joseph Michigan Law School, while a portion of the H. Vance, a graduate of the Law School of the Class of 1861, is Faculty are withdrawn from practice, the rest continue in the active work of their the Librarian in charge. As an account of the Michigan Law profession. School would be incomplete without an ac The Law Faculty originally, and for many count of the personnel of the Faculty, we years, consisted of three men, — James V. shall sketch the career of those who have Campbell, Thomas M. Cooley, and Charles been engaged in its work of instruction. I. Walker. James V. Campbell, of the Supreme Court Professor Langdell, at the Harvard celebra tion in 1886, declared that what qualified a of Michigan, was born Feb. 25, 1823, in person to teach law was " not experience in Buffalo, N. Y. Three years later his par the work of a lawyer's office, nor experience ents removed to Michigan and settled in He in dealing with men, nor experience in the Detroit, where he has since resided. trial or argument of causes, nor experience attended school at Flushing, L. I., and 200

The Green Bag,

matriculated at St. Paul's College, in the same place, where he graduated in 1841. That institution was under the patronage of the Protestant Episcopal Church, and not withstanding its work was well done it passed out of existence some years ago. After graduation Mr. Campbell returned to Detroit, and entered on the study of law in the office of Douglass & Walker, being ad mitted to practice in October, 1844, imme diately thereafter entering into partnership with his distinguished preceptors. His prac tice at the bar only covered a period of thir teen years, when he was elected to the bench of the Supreme Court of the State, where he has since remained. One familiar with his professional life says that "time would have made him one of the best trial lawyers of the day. At the bar, as in every relation of life, he was remarkable for acuteness of intellect, mental and oratorical facility, and for that breadth and exactness of knowledge which well earned him the reputation for learning now vindicated by years of public service." As Judge Campbell took his place on the bench in January, 1858, and by successive re-elections has been kept there by the people of the State, — his last re-election occurring in April, 1887, for a term of eight years commencing with January, 1888, — if life and health permit him to serve out his term, he will have had a most remarkable judicial career, extending over a period of al most forty years. It is doubtful whether any man in the United States has been permitted such a judicial experience in a court of last resort, and especially in a State whose judges are elected by popular vote. We are in the habit of thinking that Marshall and Taney had extended careers in the Supreme Court of the United States, where the appointments are made for life; but their tenure of office did not extend over so long a period as Judge Campbell will have served on the bench of the Supreme Court of Michigan if he serves out his term. He served as a professor in the law school for twenty-five years, beginning in 1859 and continuing

until the year 1885- 1886. His resignation of his chair was matter of profound regret, and was occasioned by the necessity of giving his entire attention to his judicial duties, the work of the court now having become very great. His subjects in the law school were as follows : Criminal Law, Jurisprudence of the United States, Equity Jurisprudence, and International Law. The lectures which he delivered were learned and lucid, and had a charm about them which attracted all. They were delivered with fluency and elegance, and no one listened to them without being filled with admiration for the man. Not only was he well read in law, but he possessed a wide familiarity with polite literature, and a knowledge of history that was extensive and exact. It was evident to all who listened to him, either in the lecture -room or in private conversa tion, that he was a man learned in many fields, and one possessed of a memory so marvellously tenacious that it seemed never to forget even apparently insignificant de tails. The University in 1866 very fittingly made him a Doctor of Laws. Thomas M. Cooley, chairman of the Inter state Commerce Commission, was born in Attica, N. Y., Jan. 6, 1824. His family de scends from Benjamin Cooley, who settled in Springfield, Mass., in 1640. The father of Thomas M. Cooley was poor, and his family was large, so that the boy acquired his educa tion under difficulties, earning the necessary money by hard manual labor, extending through the period of professional study. He never had the benefits of a college train ing, but at nineteen years of age commenced the study of law at Palmyra, N. Y., in the office of Theron K. Strong, afterwards a Judge of the Supreme Court of that State. He removed to Michigan in 1843, taking up his residence at Adrian, and finishing his preliminary study of the law in the office of Tiffany & Beaman. In January, 1846, at the age of twenty-two, he was admitted to the bar. He had already held the position of Deputy County Clerk, and in 1850 was 201 elected a Circuit Court Commissioner, but place, welcomed him to the position as a being restless and dissatisfied removed to worthy successor of the lamented Manning, Ohio in 1852, taking up his residence in who had been removed from the bench by Toledo, where he formed a partnership in the death; and yet, as one of them has since real-estate business. He remained at Toledo said, they were and continued to be more until the real-estate boom, which that city and more surprised and gratified by the was enjoying at that time, collapsed, and abilities which he continued more and more then returned again to Michigan, determined to exhibit as a Judge the longer he con to win success, if possible, in the law. He tinued on the bench. Judge Cooley retired

from the Law Fac again made his home in Adrian, and was at ulty in 1884, and from one time junior mem the Supreme Court in ber of the firm of 1885. Since his re Beaman, Beecher, & tirement from the Fac ulty he has not with Cooley. The senior member of this firm, drawn his interest in the school, and has Fernando C. Beaman, from time to time de was a member of Con livered lectures theregress from 1 86 1 to in, notably so on 1 863; and in 1 879 was Taxation and Consti appointed by the Gov tutional Law. Judge ernor to fill the unex Cooley's career as a pired term of ZachaUniversity professor. riah Chandler in the Senate of the United Judge of the Supreme States, but declined Court, and writer of the appointment. Mr. law treatises is a re Cooley also became splendent one. His the senior member of works have made him the firm of Cooley & famous in Europe as Croswell, the junior well as in America, member being after and his name has been wards twice elected a tower of strength to WILLIAM P. WELLS. Governor of Michigan. the University of In 1857 Mr. Cooley Michigan, which made was appointed to compile the General Stat him a Doctor of Laws in 1873, a similar utes of the State, and in 1858 he was made honor being conferred on him by Harvard the Official Reporter of the Supreme Court University in 1886. As " the one great of Michigan. In 1859, as before indicated, law book of the last century," the Commen he was appointed a professor in the Univer taries of Blackstone, was the fruit of a sity Law School, when he removed his resi professorship in law in an English Uni dence to Ann Arbor, where he has since versity, so most of the classic legal litera continued to reside. He was then thirty-five ture of this country has been the fruitage years of age, and entered on his duties with of similar professorships here. Chancellor zeal and energy. In 1864 he became a Judge Kent's Commentaries were the results of his of the Supreme Court of the State. His law professorship in Columbia College. All associates on the bench, who already knew of Story's works — some thirteen volumes — something of his high qualifications for the are the fruits of his work as Dane Professor 202|The Green Bag.|}}

in the Harvard Law School. It was in the performance of his duty as a law professor that Simon Greenleaf prepared his work on Evidence, and Parsons wrote his work on Contracts, and on Bills and Notes, as well as on Partnership and Shipping and Admiralty. And in the same way Washburn prepared his work on Real Property. Judge Cooley, dur ing his connection with the Michigan Law School, published his Constitutional Limita tions in 1868, his edition of Blackstone's Commentaries in 1872, his edition of Story's Commentaries on the Constitution in 1874, his work on Taxation in 1877, his treatise on Torts in 1879, and his Manual of Constitu tional Law in 1880. On the appearance of his work on Torts the " Southern Law Re view " declared that " neither England nor America, neither the present nor any other period in the history of the common law, has produced an abler or more learned expounder of its principles." As to the book itself, it declared that it was written " in a style of classic propriety; concise, and yet nothing is wanting; full, and yet nothing is wasted." His greatest work is his " Constitutional Lim itations," a book of unique excellence, which at once gave him a national and later an in ternational reputation. As a law lecturer Judge Cooley was distinguished for the clear ness of his style and the thoroughness of his exposition. The thousands of law students who have sat under his instruction in the University of Michigan hold him in the highest esteem, and no name mentioned in the halls of the University to-day evokes su"ch an outburst of applause as does his. He may well be proud of the grateful apprecia tion in which he is held by the students in the University of Michigan. An almost lifesize portrait of him hangs on the walls of the Law Lecture Room, having been generously presented to the school by Mr. Albert D. Elliot of the Law Class of 1887, and a gradu ate of the Academic Department of Harvard University of the Class of 1882. Charles I. Walker, one of the most hon ored members of the bar of Michigan, came

from a sturdy old New England family " of such timber as had furnished much of the best blood of the West, people of education, intelligence, and independence, as far back as their descent can be traced." He was born in the village of Butternuts, Otsego County, N. Y., on April 25, 18 14, whither the family had removed from Providence, R. I., in 1 8 12. The grandfather of Charles I. Walker was Ephraim Walker, who married Priscilla Rawson, a lineal descendant of Edward Rawson, who graduated in 1653 from Harvard College, and was at one time Secretary of the Colony of Massachusetts. Charles J. Walker was one of a family of eleven children, and ob tained his education at a district school in his native village, supplementing its course by one term at a private school in Utica, N. Y. For some years he engaged in mercantile business in the State of New York until 1836, when he removed to Michi gan, settling in Grand Rapids, where he be came a land and investment agent. This business- he followed for a short period, when it was abandoned by him, and he became the editor of the Grand Rapids " Times," the only newspaper published in those days in the town. But in 1838 journalism was in its turn given up, and having been elected a Justice of the Peace, Mr. Walker entered on the study of the law in the office of George Martin, who afterwards became Chief-Jus tice of the Supreme Court of the State. In 1 841 he determined to complete his legal studies in the East, and removed to Spring field, Mass., and from there to Vermont, in which latter State he was admitted to the bar in September, 1842, being at that time about twenty-eight years of age. He soon succeeded in building up a large and pro fitable practice, but decided in 1851 to re move from Bellows Falls, Vt., to Detroit, Mich., where his brother, the Hon. E. C. Walker, was engaged in successful practice. He at once entered into partnership with him, and soon made a reputation at the bar. In 1836 he was a member of the sec ond convention called to consider the ques Michigan University Law School. tion of the admission of Michigan as a State, and which finally accepted the terms pro posed by Congress. In 1840 he became a representative in the State Legislature, and in 1867 was appointed a circuit judge by Governor Crapo, to succeed Judge Witherell, who had died in office. He held the place but ten months, when he resigned because of the inadequacy of the salary. Becoming

a professor in the Law School in 1859, he continued to hold his chair for fifteen years, when his failing health and the pressing de mands of business compelled him to re tire from his professor ship. The subjects upon which he had lec tured were Contracts, Agency, Bills and Notes, Corporations, and Partnership. It is not passing the bounds of truth and soberness to say that Judge Walker was a most able and success ful law lecturer and teacher, and it isdoubtful whether any man who has been con HENRY B. nected with the Law Faculty of the Uni versity of Michigan ever surpassed him in those respects. His lectures were always prepared with the greatest care, his method was excellent, his style clear and elegant, and his citation of authorities was made with great good judgment. No student ever went forth from the Michigan Law School without a profound respect for him. When in the year 1 886-1 887 he consented to re-enter the Law Faculty for the year to fill a temporary vacancy which had occurred, he was cordially welcomed by all. Of these three men Walker, Campbell,


and Cooley, President Angell in his com memorative address delivered at the semi centennial of the University in 1887, spoke as follows : — "Perhaps never was an American law school so fortunate in its first Faculty, composed of those renowned teachers, Charles I. Walker, James V. Campbell, and Thomas M. Cooley, — all living, thank God, to take part in this celebration, and to receive the loving saluta tions of the more than three thousand graduates, who, as learners, have sat delighted at their feet. The fame which these men and those afterwards associated with them gave to the school w,as a source of great strength to the whole University." In March, 1868, Charles A. Kent, a prominent member of the Detroit Bar, was elected Fletcher Pro fessor of Law in place of Ashley Pond, who had resigned after a few years of service. Mr. Kent was born in St. Laurens County in the State of New York in 1834, and BROWN was graduated from the University of Ver mont in 1856. For a time after gradua tion he taught school, being the principal of an academy at Montpelier, Vt. He studied theology at the Andover Theological Semi nary from 1857 to 1859, but giving up the ology for law, he came to Detroit in 1859, and entered the law office of Walker & Rus sell as a student, and was admitted to the bar in the following year. Mr. Kent has never been a candidate for public office, but has devoted himself entirely to the profes sion of the law. He consented, however, in 1 88 1 -1882, to serve as a member of a commis 204|The Green Bag.|}}

sion that was created to revise the tax laws Campbell, the partnership continuing until Judge of Michigan, and in that capacity rendered Campbell's accession to the bench in 1858 as one very valuable service to the State. He is a of the judges of the Supreme Court of Michigan. man of the highest character, sincere and From that time to the present Mr. Wells has con genuine at all times and under all occasions. tinued the practice of law alone in Detroit. His legal talents early won just recognition, and his He is a man of sound judgment and of con practice has extended to all the courts of the State scientious devotion to duty, who never does and United States. He has been counsel in many anything half-way. Not only is he a well- of the most important litigations of the past twentyread lawyer, but he has studied with care five years, notably in cases involving the constitu questions of government, and political and tionality of the War Confiscation Acts, heard in ethical science. He came to his professor the Supreme Court of the United States in 1869 ship in the Law School at the age of thirty- and 1870. four and held the position for eighteen years, when he resigned and gave himself up to the "In 1874-1875, during the leave of absence of practice of his profession. The old students Judge Charles I. Walker, Kent Professor of Law in will always remember him not only for his the University of Michigan, Mr. Wells was appointed learning, but for his humor and good nature. to the vacancy. On Judge Walker's resignation in 1876, Mr. Wells was appointed to the professor He lectured on Pleading and Practice, Evi dence, Torts, Easements, Bailments, and the ship, — a position he held until December, 18S5, Law of Personal Property. His lectures when he resigned l>ecause of the interference of were prepared with great care, and gave its duties with his legal practice. The subjects assigned to this professorship, and of which entire satisfaction. Mr. Wells had charge, were Corporations, Con Prof. William P. Wells was born at St. Al tracts, Commercial Law generally, Partnership, and bans, Vt., Feb. 15, 183 1. His father is said Agency. Upon his resignation an address was to have been a lineal descendant of Thomas presented him by the students, and resolutions of Wells, an early Governor of Connecticut. commendation adopted by the Regency. We take the liberty to incorporate herein the "From Jan. 1, 1887, to the close of the col following sketch of Professor Wells's career, lege year, Mr. Wells held the position of Lecturer which has recently been made public in an on Constitutional History and Constitutional Law other connection : — in the University of Michigan, temporarily dis "William P. Wells took a preparatory college charging the duties of Judge Cooley, Professor of course at the Franklin County Grammar School at American History and Constitutional Law in that institution. In June, 1887, he was again called by St. Albans, and then entered the University of Ver the Regency to the Kent Professorship in the Law mont at Hurlington, and after spending four years, School, and he now holds that position. The sub graduated with the degree of A.B. in 185 1. After graduation he commenced the study of law at St. ject of Constitutional Law was added to those of Albans. In 1852 he entered the law school of which he has charge. Harvard University, and in 1854 graduated with the degree of LL.B., receiving the highest honors "He was one of the earliest members of the of his class for a thesis on 'The Adoption of the American Bar Association, organized in 1878, Principles of Equity Jurisprudence into the Admin which holds its annual session at Saratoga, N. Y., istration of the Common Law.' The same year he and for several years has been a member of the received the degree of M.A. from the University General Council; and in 1888 was elected chair of Vermont, and in 1854 was admitted to the bar man of the General Council. At the meeting in of his native State at St. Albans. In January, 1886 he presented a paper on 'The Dartmouth 1856, he settled in Detroit, entering the law office College Case and Private Corporations,' which of James V. Campbell. In March following he was has been reprinted from the transactions of the admitted to the bar of Michigan, and in November Association, and widely circulated, attracting much of the same year became a partner of James V. attention. Michigan University Law School. "Among the members of the legal profession, Mr. Wells stands in the front rank. As an advo cate, a lecturer, and a gentleman of broad and liberal culture, he holds a place among the best; and his legal attainments, tested by long practice in important cases, justified his selection as a member of the Law Faculty of the University "His legal studies, however, have not fully en grossed his attention, and the intervals of freedom

from pressing professional duties have been de voted to following ave nues of intellectual cul ture opened by a liberal education. "Naturally a clear and vigorous thinker, and possessing the valuable gift of clear and forcible expression, he needed only the opportunities he has enjoyed to secure eminence as an orator, alike at the bar, in the political arena, and in the halls of the Univer sity. "For his duties in connection with the Uni versity he possesses spe cial fitness, and it is by that work that he will be most widely remembered. The professional suc cesses of a lawyer, how ever useful or beneficial, are comparatively ephe BRADLEY M. meral; but the teacher who has been the means of giving an intellectual impetus, and who has im parted the clear light of absolute knowledge to the inquiring mind, is sure of being held in grateful remembrance. That Mr. Wells has been greatly successful as a professor is conceded by all who have any knowledge of the University, and espe cially by the students who have been fortunate in having him as an instructor. His abilities are such as to command acquaintanceship with many persons distinguished in professional and political life." In 1879 tne Beard cf Regents created a fifth professorship in the Law School, known as the Tappan Professorship, which was 28


named for Henry Philip Tappan, President of the University from 1852 to 1863. Hon. Alpheus Felch was appointed to the chair thus created. It has been truly said of him that his record is a part of the history of Michigan, and that it would be impossible to write of any branch of the powers of the State and make no mention of him. He was born in Maine in 1806, and is still living, honored and beloved of all. In 1 82 1 he was a student at Phillips Exeter Academy, and in 1827 graduated from Bowdoin College, where he was a fellow student with the poet Longfellow, who was graduated from the same institution two years before his own graduation was at tained. He was ad mitted to the bar of Maine in 1830, and three years later took up his residence in Michigan. He succes sively became a mem ber of the Legislature of the State, a Bank Commissioner, Audi tor-General, a J udge of THOMPSON. the Supreme Court, Governor, and a Sena tor in Congress. He was a member of the Senate at the same time Webster, Clay, and Calhoun had seats in that body. At the close of his senatorial term, in March, 1853, he was appointed by President Pierce one of the commissioners to adjust and settle the Spanish and Mexican land claims in California, under the treaty of Guada lupe Hidalgo. At the close of his labors on the Commission in 1856, Governor Felch returned to his home in Ann Arbor, where he has ever since continued to reside. In 1877 Bowdoin College conferred on him 206|The Green Bag.|}}

the degree of LL.D., and two years later he cases than any other lawyer in the State of became, as already said, a professor in the Michigan. It is certain that his clientage Law School. His special topics were Wills has been large, and his practice extensive and the Administration of Estates, Real and lucrative. He was nominated by his Property, and Uses and Trusts. He re party in 1887 as a candidate for Justice of signed his position in the Law School in the Supreme Court, but was defeated by Mr. March, 1883, being admonished by his ad Justice Campbell. vancing years that it would be unwise to Bradley M. Thompson was born April 16, tax his strength by longer continuing to 1835, in Milford in the then Territory of discharge its duties. A man of pure and Michigan. He prepared for college at Wesgentle nature, of wide experience, and full leyan College, Albion, and matriculated in of honors, his presence is a benediction to the University in 1854, graduating in the those who are so fortunate as to come within I Literary Department in the Class of 1858, his influence. The writer was appointed to and in the Law Department in i860, in the the Tappan Professorship on the acceptance first law class. He commenced the prac of the resignation of Governor Felch, and tice of his profession at East Saginaw in entered on his duties in October, 1883. i860. In the spring of 1862 he formed a In 1886, when Mr. Kent resigned the partnership with Hon. William L. Webber, Fletcher Professorship, Levi T. Griffin, of now President of the Flint & Pere Mar Detroit, was appointed his successor by quette Railroad, and Hon. Chauncy H. Gage, unanimous vote of the Board of Regents. Circuit Judge of the Tenth Judicial Circuit. Professor Griffin was born in the State of In the fall of 1862 Professor Thompson New York in 1837, and ten years thereafter entered the United States service as Cap his parents removed with him to Michigan. tain in the Seventh Michigan Volunteer Cav alry. This regiment was brigaded with the He became a student in the Academic De partment of the University, and graduated First, Fifth, and Sixth Michigan Cavalry Re with the Class of 1857. He was admitted giments, and was known as Custer's Brigade, to the bar in the following year, being one being under the command of that gallant officer. Professor Thompson was mustered of the first class to be admitted on examina tion before the Supreme Court of Michigan, out of service in 1865, as Brevet Colonel, for as reorganized. After his admission he re gallant and meritorious services. He did not mained in Detroit for some months, and then resume the practice of law until 1869. He removed to Grand Rapids, where he was held the office of City Attorney of East Sagi engaged in practice until i860, when he naw during the years 1873, 1874, and 1875, returned to Detroit, which is still his home. and the office of Mayor for two terms during He entered the army in 1862, and continued the years 1877 and 1878. In 1878 he was in it until mustered out of service, July 1, the candidate of his party for Congress in a triangular contest in which Hon. R. G. 1865, having been brevetted Major of Vol unteers for gallant and meritorious services. Horr and Hon. H. H. Hoyt were the other He belonged to the famous Fourth Michigan candidates; all being residents of the same city and ward. Professor Thompson carried Cavalry, the regiment that captured Jeffer son Davis at the close of the war. When Saginaw County by a plurality of over one the war closed, Mr. Griffin again entered on thousand, but Mr. Horr was elected. In the practice of his profession, and in 1875 1880, there being a vacancy in the office of associated himself with Hon. Don M. Dick Circuit Judge in the Tenth Judicial Circuit, inson, Postmaster-General in the Cabinet of composed of Saginaw County, at a meeting President Cleveland. It has been said of of the bar of that county, Professor Thomp Mr. Griffin that he has perhaps tried more son was recommended to the Governor of the Michigan University Law School.


State as the choice of the bar for that office. mitted to the bar. In less than a year there He did not, however, receive the appoint after, he was appointed Assistant United ment, a person of a different political faith States District Attorney, and held that posi being preferred. In 1887 the Regents of the tion until May, 1868. In July of that year he University appointed him to deliver a course was appointed, by Governor Crapo, a circuit of forty lectures on the subject of real estate. judge for the County of Wayne, and held This course was commenced in April, 1888; the position until his successor was elected

and at a meeting of the Board in June follow by popular vote. He soon afterwards en ing, he was made Jay Professor of Law. tered into partnership with John I. New Jerome C. Knowlbury and Ashley Pond, two prominent lawyers ton, Assistant Profes of Detroit, and con sor of Law, was ap pointed as such in tinued with them in the practice of the pro 1885. He was born in Michigan, Dec. 14, fession until March, 1875, when he was ap 1850, and graduated pointed United States from the University of District Judge. Not Michigan in 1875 with long ago one of the the degree of A.B., and from the Law Detroit papers con School in 1878 with tained an article rela ting to Judge Brown, the degree of LL.B., from which the follow and immediately en ing is taken, as not tered on the practice being without inter of the law at Ann Arbor. In 1888 he est : — edited an American "He is a man whose edition of Anson on face, head, figure, and Contracts, which is gait denote the best of used as a text-book in mental and physical this and other law strength, and seen a schools. He has, in square away, protected the main, had charge by an English cape-coat JEROME C KNOWLTON. of the text-book work or an ordinary American overcoat, the stranger of the Department. Henry B. Brown, LL.D., the lecturer on would call the man about thirty years old. The Admiralty, is the United States District Judge judge is in reality about fifty years old; but a strong for the Eastern District of Michigan. He neck, head, and shoulders at work in producing a was born in Lee, Berkshire County, Mass., swinging yet rather jaunty step, which is accompa March 2, 1836. He graduated from the nied by free and careless manipulation of a slight cane, produces an appearance of athletic youthfulAcademic Department of Yale College in ness, quite in keeping with the man's health and 1856, and spent the year following his strength. On the bench the judge is dignified, graduation travelling in Europe. On his almost austere; but he is right He has remark return to this country he commenced the able power as a judge in the readiness with which study of law. He spent one year in the he sees and passes upon a point raised by an Yale Law School, and then entered the Har attorney practising before him. In this way he vard Law School. In December, 1859, he is an expeditious judge, saving much valuable came to Detroit, and in July, i860, was ad- time. While he is dignified, he is patient, careful, 208|The Green Bag.|}}

fair, and wise, and there is no judge on earth in whom the members of the Detroit and Michigan bar have greater confidence and for whom they have greater respect. Our judge is, besides being a fine lawyer and an able judge, an experienced traveller, and fond of books about travellers; an ardent lover of children, a courtly host, a con noisseur of bric-a-brac and curios, an expert in domestic architecture, a lover of pictures, and a good judge of them." We may add that, on the death of Mr. Justice Stanley Matthews, the name of Judge Brown has been very favorably mentioned in connection with a nomination to the place on the bench thus made vacant, and his friends are earnestly hoping that he will be elevated to that high station. In addition to the regular Faculty of the school are some special lecturers of whom mention may be made. Melville M. Bigelow of Boston, the well-known law writer, is a lecturer in this Law School on the subject of Insurance. William G. Hammond, Dean of the St. Louis Law School, lectures here on the History of the Common Law. Special lectures have also been delivered on Medical Jurisprudence by Victor C. Vaughn, Ph.D., M.D., and by Charles 11. Stowell, M.D. The Hon. Otto Kirchner, ex-Attorney-Gen eral of Michigan, lectured in the school for a time. He is a thorough student, and one of the most prominent members of the bar of Michigan. Prof. Harry B. Hutchins, now of the Cornell Law School, held a pro fessorship here for two or three years. He was a graduate of the Literary Department of the Class of 1871, with the degree of Ph.B., and rendered the University good service as an efficient lecturer and thorough teacher of the law.

The spacious building occupied by the Law School was dedicated to its use in 1863, Judge Cooley delivering the dedicatory ad dress. On the first floor are located the offices of the professors, and the library. The lecture-room, with a capacity for five hundred students, is located on the second floor, as is also a large recitation-room, used lor the text-book work of the school. The third floor contains ample debating and so ciety rooms. There are two Literary Soci eties connected with the school, the Webster and the Jeffersonian. These societies hold their meetings on Wednesday evening of each week during the college year. The Webster Society was organized when the Law School was first established, and it has a membership of more than sixteen hundred. There are two Greek-letter secret societies existing in the Law School. One of these, the Phi Delta Phi, was founded here in 1869 by John M. Howard of the Class of 1 871 . Its membership, we understand, is confined to students in law schools and to active practitioners. Since its organization in this Law School it has been established in fifteen of the leading law schools of the country, and numbers among its members some of the most distinguished lawyers and judges, in cluding the late Chief-Justice Waite and Mr. Justice Miller of the Supreme Court of the United States. A chapter of the Sigma Chi fraternity, which in other institutions exists as a literary college secret society, was established here in 1877, and is here composed almost exclusively of students in the Law Department. Both of these soci eties have been very careful as to their membership. The Bad Singer.


THE BAD SINGER. STATE v. LINKHAW. (69 North Carolina, 214; s. c. 12 Am. Rep. 645.) By Irving Browne. [ The unintentionable disturbance of a religious congregation by discordant singing, when the singer is conscientiously taking part in the services, is not indictable.] TN North Carolina's health-inspiring woods

  • ~ Lived the defendant, poor in worldly goods,

But full of grace, an exemplary man As ever lived since Methodists began. Upon acquaintance 'twas apparent soon Nature denied to him the sense of tune, And though the forests there with pine are rich, 'T was vain to him — he couldn't get the pitch. In church he warbled with enthusiasm, Infecting every hearer with a spasm.

His fault was worsened by his holding on After the other vocalists had done, And so in many a fervid "winding bout" He showed them " linked sweetness long drawn out," And with a voice stentorian he sang Until the dim aisles of the tar woods rang, — Not with the understanding, but with spirit, As if he wished the heathen world to hear it. This made one half the congregation shout With laughter, while the pious and devout Were scandalized; the wicked were delighted, But all the good and sober were affrighted. Once the sad preacher had shut up his book, Declined to sing the hymn, and angry took His seat; the ruling elder had refused . To preach, because the music was abused. On one occasion when the Holy Ghost Seemed brooding o'er the expectant humble host, A member asked the brother not to sing Lest he should on the cause so sacred bring 2IO

|The Green Bag.|}}

Deep ridicule, and he for once complied; But usually he such requests denied, Avowing, if he hoped to win the prize, Not only must he pray, but "vocalize." And so whene'er it came to singing psalms, That house was filled with miserable qualms; Until at last the suffering congregation Had him indicted for the desecration.

A witness being called, with lungs inflated The manner of his singing imitated. Producing inextinguishable laughter That shook the court-house to the highest rafter, Convulsing judge, spectators, bar and jury, Till some lay down and rolled in comic fury. This testimony wrought a quick conviction; But on appeal it met with interdiction, For there was no pretence that he intended The worship to disturb; he thought he blended Most scientifically with the rest, — In short, he always did his " level best." "And so if he will sing, there 's no help for 't; His church may discipline him, not the court." The prosecuting brethren went out sad At this intelligence : it was too bad; Not only must they hear him on the earth, But as he was a man of Christian worth, Sure of salvation with the godly leaven, They must to all eternity in heaven List to that voice, which all the saints would drown, Of smiling Linkhaw, with his harp and crown! But for the earthly part of this dire pest, I might one simple remedy suggest : Induce good Brother Linkhaw to embrace The ministry, and then at least his face He must to some fresh field once in three years Reluctant turn, and spare the tortured ears. Devoutly to be wished-for dispensation, — The Methodist contrivance of " rotation "! Causes Celebres.

21 I

CAUSES CELEBRES. V. JACQUES LEBRUN. [1689.] JACQUES LEBRUN was a servant. At the age of sixteen years he entered, as a valet-de-chambre, the service of a lady named Mazel, a rich widow, living in a house in the Rue des Ma^ons-Sorbonne, in Paris. For twenty-nine years Lebrun faithfully served his mistress. Was he still a valet-de-chambre at forty-five years of age? That continued to be the modest name of his office; in reality, he had become the steward of the house and the confidant of Madame Mazel. He it was who bought and paid for all the supplies, and who gave all the orders relating to the house. He had charge of all the money and valuables, which he kept in a strong box in a secret place. No one doubted his honesty, attested by long years of service which had made the old domestic almost a member of the family. He was a servant and he was a friend. Madame Mazel had made a will by which he was to receive at her death six thousand livres and one half of the wearing apparel and. linen used in the house. Lebrun was married; he lived happily with his wife, and brought up his children in the fear of God. Madame Mazel, strict and exacting, as ladies of her age generally are, did not per mit him to have his family with him. He had therefore lodged them in the neighbor hood, near the College d'Harcourt. The family of Madame Mazel consisted of (besides Lebrun) two female servants, a cook, a coachman, and two lackeys. A widow with a large fortune and three sons, she had handsomely provided for all of them. The oldest, Rene de Savonnieres, was a member of Parliament; the second, George de Savonnieres, held an office under the Gov ernment; and the youngest, Michel de Savon nieres, was a major in a regiment at Piemont.

At the time of which we write it was com mon to find among the household of a rich family an abbe or priest. Madame Mazel har bored an old monk, the Abbe Poulard. It would be difficult to say what duties he was expected to perform. Was he the confessor of Madame? Had he been, was he, any thing more? All we know is that the Abbe Poulard was installed in the house as though it were his own. He did as he pleased; he was hard to satisfy, and did not conceal his bad humor on occasions. He was particular as to his living, fastidious as to his sleeping, but not very strict in other matters, and he did not hesitate to ignore the rules of the Church regarding fast days and the eating of meat. At the table he asserted his au thority; he found fault with the meats, dis cussed the merits of the same, and nearly drove the old cook to despair. His sleeping-room resembled the boudoir of a pretty woman, so elegantly was it fur nished, and so many beautiful things did it contain. He found himself so comfortable in his cell that it is said that in 1673 he pre ferred to be excommunicated by the head prior of Cluny rather than leave the house. Still, in spite of all the satisfaction which his abode furnished him, the dear Abbe was not content. In order that he might be more independent, he hired in the vicinity a room where he often slept. On such occasions he returned to the house very early in the morn ing, and noiselessly entered by the means of a pass-key with which he opened the door. Madame Mazel's house was a building of four stories. One entered, on the first floor, by means of the main stairway, a hall which was used as an office and in which was a chest of drawers in which the table service was kept. One of the chambermaids had 212|The Green Bag.|}}

charge of the key of this chest. In this hall, on the street side, was a recess where Lebrun slept when he did not pass the night with his own family. The rest of this story was taken up by a large room in which Madame Mazel received her guests when she gave an entertainment. The sleeping-chamber of Madame Mazel was on the second story, looking out upon the court. To reach this chamber it was necessary to pass through two antechambers, one of which, opening upon the stairway, was always unlocked, the other was locked during the night. By order of Madame Mazel there had been made in the door of her room, below the lock, a little hole, which was stopped up with a peg. When she was indisposed or did not wish to rise to open the door herself, the servants introduced through this little hole a hook with which they could push back a button which was used as a fastening instead of the lock. In this immense room Madame Mazel slept alone. Two doors opened into this chamber, — one leading from the back stairway and the other from the bath-room, from which another door led to the back stairs. The first of these doors was near the bed, and Madame Mazel could open it without rising. Behind the bed were two bell-ropes communicating with the servants' chambers. Except the chamber of the Abbe Poulard, the third story was entirely unoccupied. The room of the old monk was directly over the bath-room, and was reached by the back stairway. The fourth story was occupied by the two servants and the two lackeys. The cook slept downstairs in a woodshed, and the coachman in a recess under the stairs. This last had charge of the gate, the key of which was kept hanging upon a nail in the kitchen, where all the inmates of the house had access to it. At the top of the house was a large attic, from which a window opened upon a gutter which extended from the roof of the house

to that of an adjoining building. The door of this attic was always open. These details, though uninteresting, will be found necessary for properly understand ing this recital. One fact more must be added. Some time before the moment this story commences, — that is to say, early in the winter of 1689, — Madame Mazel had asked Lebrun for the pass-key which he used for going in and out, and had given it to the Abbe Poulard, although he already had one which he used constantly. Bearing all these facts in mind, we come now to the 27th of November, 1689. On that day Madame Mazel supped with the Abbe Poulard as usual. During the meal the Abbe announced that he should sleep in his room in the neighborhood. Madame Mazel retired about eleven o'clock. Lebrun had remained with his family that evening later than usual; they heard him knocking at the door of the back stairs just as the ser vants, after having attended to their mis tress, were about to retire. "Who is that? " asked Madame Mazel. "It is M. Lebrun," replied a servant. "This is a pretty hour to come home," said the mistress. Finding that no one answered him, Le brun went round and ascended the front stairs. His mistress gave him orders for the supper the next day, when she pro posed to have a reception. Lebrun then at tended to his usual duties. He locked the door of the chamber before he went out, and placed the key on a seat near the bed; then, as he did every night, he locked the door of the second antechamber and left the key on the mantelpiece in the first antechamber. Having done this, he descended to the kitchen, placed his hat upon the table, and took the key of the gate with the intention of locking it. He laid it on the table and sat down for a moment to warm himself be fore the fire, which still blazed upon the hearth. Insensibly he fell asleep. When he awoke a neighboring clock struck one. He went and locked the gate, which he Causes Cettbres.


found wide open, and carried the key to his "Some one should be sent for a physician," room. Early the next morning he went out said one of the servants. into the country. He had to buy provisions "It is not that," murmured Lebrun; " it for the supper that evening, and to go to the is something worse. There has been some butchers at Vallee. He met on the way a crime committed. I am very much disturbed bookseller of his acquaintance, with whom, on account of the gate which I found open as he himself said, he "gossiped." He last night." was merry, even a little jovial. The locksmith arrived, and the door was Returning to the house, he met near the opened. Lebrun entered the room first and door three friends, whom he made come ran to the bed of Madame Mazel, tore aside into the kitchen. He was in so frolicsome the curtains, and cried, " Madame has been a humor that having removed his cloak he assassinated! " Then he entered the bath threw it playfully over the shoulders of one of room, unfastened the bar of the window, and the new-comers, and seizing a leg of mutton threw open the blinds to admit the light, and pretended to strike, saying, " I have the right disclosed the body of Madame Mazel lying to beat my own cloak as much as I please." upon her bed, dead, bathed in blood. Her He then looked after the preparations for face, her neck, and her hands were covered the supper, and sent one of the lackeys with with wounds. some wood for his mistress's chamber. Lebrun's first thought was that his mis Eight o'clock struck, and Madame Mazel had tress had been murdered by a robber. He not rung for her servant. Lebrun noted ran to the strong box and examined it. The this and was troubled, for she usually arose lock was intact. " She has not been robbed," at seven. He waited uneasily some minutes he said. " Why was it done? " for her bell to ring. Then he went out hur Rene de Savonnieres sent at once for a riedly, and going to his house gave his wife magistrate and two physicians to come and seven louis and some half-crowns to keep, view the body of his mother. These last as he did not wish to carry them in his found fifty wounds upon the victim, made pocket. He said to her as he started to probably by a knife. No one of these return, " Madame has not yet awaked; I do wounds was of itself mortal; death had re not know what to think of it." sulted from the great loss of blood. She On reaching Madame Mazel's house he must have had the power to resist and to found the servants seriously alarmed at the cry for aid. silence of their mistress. He resolved to go. The magistrate found in the bed a piece up to her room. He mounted the stairs and of a cravat, with embroidered ends, stained knocked at the different doors of the cham with blood, and a napkin rolled up in the ber, calling, " Madame Mazel! " shape of a cap which still preserved the form No response; his alarm increased. of the head on which it had been worn. "Can she have had an apoplectic stroke? " This napkin, all covered with blood, had said one of the men. upon it the mark of Madame Mazel. It was "I fear it may be something worse," said inferred that during her struggle with the Lebrun. " I feel very uneasy since I found assassin she had torn his cravat and snatched the portc-cochbre wide open last night." off the cap which he wore. M. Rene Savonnieres was at once notified. Between the mutilated fingers of the dead He arrived, and knocked at the door of his woman were found some hairs which resem mother's chamber without eliciting a reply. bled in no respect those of Madame Mazel, He then sent for a locksmith to open the and which had evidently been torn from the door. " What can it be? " said he to Lebrun. head of the murderer. "She may have had apoplexy." An examination of the room and the ad 29 214|The Green Bag.|}}

joining apartments resulted in some singular discoveries. The two bell-ropes were found twisted around the curtain-rods of the bed and tied in two knots in such a manner that pulling them would merely shake the cur tains. The key of the room was not upon the seat where it was usually placed at night, and there were no signs of the door of the chamber or the antechamber having been forced. The peg which stopped up the little hole under the lock did not appear to have been disturbed. The two doors which opened upon the back stairway were both fastened on the inside with a hook. The key of the wardrobe was found in its usual place, under her pillow. The wardrobe being opened, they found there a purse in which Madame Mazel kept her card money; it contained 278 livres. In the wardrobe was the key to the strong box. They opened it; in it were several bags of money, and in an open purse at the bottom were a half-louis and all the precious stones of the victim, of a value of about 15,000 livres. Finally, in the pockets of Madame Mazel were discovered 18 pistoles in gold. It would seem then, at first sight, that robbery was not the motive which had actu ated the murderer. The magistrate proceeded to interrogate the chambermaids who had assisted in pre paring Madame for bed, and Lebrun, who had seen her last. Upon questioning Lebrun it was found that he had a key to the office and a pass-key to the sleeping-apartment of Madame Mazel. The possession of this pass key aroused suspicions against him, and he was kept under surveillance. They tried upon him the napkin which had served as a cap, and it was found to be too small for his head. They examined his hands, which showed no signs of having been washed that day. They made him wash them, but discovered no traces of blood nor any evidences of scratches. Lebrun's trunk was then examined without anything suspi cious being found. However, the pass key seemed to be an ugly piece of evidence

against him, and Lebrun and his wife were at once arrested. Seals were placed upon the furniture and the doors of the room of the victim. The next day, the 29th of November, the investigation was continued; after an exam ination of the other domestics it occurred to the magistrate, a little late, to examine the back stairway. He found there upon one of the lower steps a rope, apparently new, of considerable length, and knotted at intervals, at the end of which was a large iron hook; it was evidently intended to serve as a ladder. Lebrun' was still more closely examined, but nothing was found upon him or upon his garments, — no wound and no signs of blood. On the same day that the rope was found, they discovered in a corner of the attic a shirt, the front and sleeves of which were stained with blood, and a part of a cravat at both ends of which were bloody spots. Did these things belong to Lebrun? If they did, it was surprising that they did not find upon his hands and his neck evidences of recent washing. Some linen-manufacturers, called by the magistrate as experts, failed to find any simi larity between the bloody shirt and the linen of Lebrun. One of the servants remembered having washed a similar shirt for a lackey by the name of Berry who had been dis missed from the service of Madam Mazel for theft. Another said she had seen Berry wear a cravat embroidered like that of the assassin. These last statements were val uable, and should have put the magistrate on a new track, but he paid no attention to them. The cutlers who were examined found no resemblance between the knives belonging to Lebrun and that which the assassin had concealed in the ashes upon the hearth. A barber, called as an expert, testified that there was no similarity between the hairs found between the fingers of the victim and those of Lebrun, either in size or color. Causes Celebres. None of the ropes found in the office or at the house of Lebrun corresponded with the rope found upon the back stairway. And to a reflecting mind this rope was a revela tion. It showed that the murderer might have come from without, or at least contem plated an escape by the roof or from the windows. The bloody linen found in the attic demonstrated that it was from there he expected to make his exit; that there he had, perhaps, entered the t house. They should have examined the roofs and the long gutter which communicated with the neigh boring houses, but they did not. That which seemed most important to the examining magistrate was the fact that Le brun, although Madame Mazel had taken from him his pass-key, had a second one opening the gate, the door of the sleepingroom, and the doors of the antechamber; that, from the first moment when Madame Mazel did not reply to the calls made to arouse her, and when it was perfectly natural to attribute her silence to sickness or to an apoplectic stroke, Lebrun had seemed to fear something worse; and still further that, con trary to his usual custom, Lebrun had on the night of the crime taken to his chamber the key of the gate, which he pretended he had found open in the middle of the night. What interest could Lebrun have in the death of his mistress? To this the magistrates replied that Lebrun knew he was left by her will the sum of six thousand livres and half the apparel and linen of Madame Mazel. Might he not have wished to hasten the day when he could come into possession? What seemed to prove this was the fact that it did not appear that his mis tress had been robbed after her death. Le brun himself had declared that fact with a suspicious emphasis. It might have been that, fearing from some words of Madame that he might lose his legacy, lest she should change her will, he had employed for the murder some stranger's hand. Thus they accounted for the evident sojourn of the assassin in the attic, the precautions taken


to assure his escape by the roof in case any unforeseen circumstance should render his going out by the door impossible. So then, if Lebrun's was not the hand which committed the deed, his was the head which had inspired the crime. This was looking at it in the most favorable light, for it was more than probable that the knotted rope had been placed on the back stairway and the bloody linen been concealed in the attic to turn suspicions upon a stranger. The knots in the rope were not drawn tight, and the rope had not been used. One thing was certain : the perpetration of the crime showed a perfect knowledge of the house and the means of entering Madame Mazel's apartment, and departing without being seen. To Lebrun all this was pos sible. Alone awake when all the rest of the house slept, having possession of the keys, he could encounter no obstacle. He had an interest for, and the means of, com mitting the crime. Such were the reasonings presented by M. Rene Savonnieres, in a petition to the magistrate signed by himself and his brother. He demanded that Lebrun be arraigned and convicted of having assassinated Madame Mazel, and also that he be deprived of the legacy left him by his mistress. M. Jean Barbier d'Ancourt, a member of the French Academy, undertook the defence of the poor domestic before the judges at Chatelet. M. Barbier had no little trouble in sep arating the truth from the mass of errors and prejudices which made up the informa tion. Lebrun, severely interrogated by him, showed at once what he was; naively honest, devoted almost fanatically to his mistress, whose weaknesses he sought to palliate even at the peril of his life. It was not from him, but from public rumors, that the advocate learned of certain circumstances which showed in the life of Madame Mazel some mysteries in which without doubt he must seek for the cause of her death. This Abbe Poulard who had maintained 2l6|The Green Bag.|}}

with the deceased such suspicious relations, recognized in those which the murderer had who had occupied in her house so strange a left behind him. position, ought surely to receive the atten Another suspicious thing against the monk : tion of justice. since the arrest of Lebrun he had not ceased An old unfrocked monk, the Abbe Pou to make singular charges against him. He lard, was designated in the will of Madame affirmed that he alone was guilty of the mur Mazel under the name of Father Poulard, a der, and mingled with these charges offen ci-devant friar. Although he was not named sive insinuations against the memory of his for any special legacy, she had requested benefactress. Then he accused Lebrun of that after her death he be permitted to enjoy complicity with Berry, this man whom the in the same advantages which, he had during vestigation so obstinately ignored. "Ma her life. M. Rene de Savonnieres was dame Mazel," he said, " had in her youth had charged to look after and provide for the ex a child by a great lord, who had given her to communicated monk. educate it a large sum of money. This child The ex-Dominican had a sister named was no other than Berry, who afterward Madame Chapelain, the widow of a Coun became the lackey of his mother. Lebrun, cillor of Mans. This woman, indigent like initiated into all the secrets of his mistress, her brother, of an attractive person, was ad had revealed to Berry the history of his mired by M. George de Savonnieres, the birth, hoping to make him his son-in-law. second son of Madame Mazel. In spite of Lebrun had endeavored to have the bastard, her poverty she hoped to bring about a mar driven from his mother's house, restored to riage with the young treasurer, and by her her favor; he had introduced him in the skilful coquetry had so inflamed M. George night into her sleeping-chamber, and, suppli that he had shut his eyes to the unsuitable- cating and threatening, Berry had employed, ness of such a union. Madame Mazel, very to move Madame Mazel or to frighten her, set in her wishes, had opposed this marriage; prayers and entreaties. Passionate as she was, the mother could not listen coolly to his while the Abbi Poulard ardently desired it. It was said that some six months before words; she seized him by the throat, and, the crime M. George had shown his passion forced to defend himself, he had drawn a by gifts of great magnificence : he had given knife and killed her in a fit of rage and with the young widow a suit of brocade, the slip out premeditation." These contradictory assertions, this absurd pers and skirts of which were embroidered in gold and silver. The widow had accepted story, his interest in the death of Madame Mazel, his disreputable past life, all served these gifts, and continued her coquetries to wards the infatuated treasurer. M. Barbier to arouse the suspicions of the advocate against the monk. saw in these matrimonial intrigues an inter But the magistrates would see nothing, est in the death of Madame Mazel far more would hear nothing. It was necessary to powerful than any which could have actu ated poor Lebrun. The Abbe Poulard, an proceed with caution, for the direction given unscrupulous person, had recently had given to the investigation was suggested by M. to him the pass-key of Lebrun. He had Rene de Savonnieres. As regarded him, made it a point to announce, during the last M. Barbier also discovered some facts which meal taken with Madame Mazel, that he was set him to thinking. Rene de Savonnieres had married, some going to sleep that night in his room in the neighborhood. The Abbe had known at fifteen years before, a young girl, whose the house of Madame one Berry, who had scandalous conduct had provoked the harsh been discharged as a thief, and whose shirt ness of Madame Mazel. She had obtained and cravat had been believed to have been against her daughter-in-law a lettre de cachet. Causes Celebres. and for more than twelve years she had kept her shut up in a convent in the Province. Rene loved his wife, and would never have consented to this separation except through filial deference, and perhaps also through the fear of being disinherited. Several times Madame de Savonnieres had escaped from her convent prison; but her mother-in-law, watchful of her movements and always mer ciless, was not slow in bringing her back. M. Barbier assured himself of the certainty of the fact that in the month of March, 1685, at the same time that the mysterious Berry had sto len the fifteen hundred francs from Madame Mazel, Madame de Savonnieres was secretly in Paris. Toward the end of August she had made another escape and was again secretly in Paris. She had been concealed for some time in a house in the Faubourg Saint-Germain, and had said to some friends, "This will not last long; in three months I shall have no need of concealing myself, and I will openly re-enter my husband's house." In our day, whatever might be the in terested efforts to stifle such rumors, to conceal such suspicious circumstances, the defender of an innocent man would not hesi tate to bring to light all that he could to save his client. To the honor of our magistracy be it said, it does not seek to evade the truth, be the consquences what they may. M. Barbier could not do what advocates at the present time would surely do; and neither the magistrate nor the judges of Chatelet hesitated, as between the influences interested in concealing the true source of the crime and the innocent head of Lebrun. The Savonnieres were rich and powerful, the eldest was a member of Parliament; Lebrun was only a poor devil, whom they could condemn with even an appearance of justice. They did not even interrogate the monk Poulard, nor ask him the reason of his contradictory statements, of the romantic lies invented about Berry, whose true origin the monk knew perfectly well. They did not examine the other domestics; they did


not try upon the head of any of them the napkin rolled in the shape of a cap, which had been found too small for the head of the accused. They did not seek to ascertain where Madame de Savonnieres was, or what she had said. Berry was from Bourges; Madame de Savonnieres was confined in a convent at Bourges, — what a coincidence! The bloody shirt and the cravat belonged, witnesses had said, to the lackey Berry; the name of Berry .was not even mentioned in the proceedings! There was no doubt in the mind of M. Barbier, but he was obliged to content him self with showing strong reasons which proved indirectly the innocence of his client: a life wholly honorable, honest, and devoted; a careful economy in his own expenses; the little motive he could have had for commit ting the deed; the respectful attachment which the poor man showed for his mistress, even after her death; the tranquillity of his soul; the natural gayety which he had shown on the evening of the crime and the next morning, up to the very moment that he knew of the terrible calamity. What was there against Lebrun which singled him out to the suspicions of jus tice, and why was it that he alone was ac cused? Did he have any marks of blood upon him? Knife, rope, linen, — was there any evidence that they belonged to him? For many years he had not worn a lace cravat. This pass-key? — but what was there strange that an old servant should have known where to find in a house in which he had lived so many years a second key for gotten or unknown? This pass-key, however, proved the destruc tion of the unhappy Lebrun. It was a proof to some, a pretext to others. Of eleven judges three decided in favor of a fuller in vestigation, two for acquittal, and six for death. The sentence, rendered the 18th of Jan uary, 1690, declared Lebrun guilty of having taken part in the murder of Madame Mazel; for which he was condemned to make the 2l8|The Green Bag.|}}

amende honorable, to be broken alive, and to die upon the wheel; but first to suffer torture upon the rack, to compel him to re veal his accomplices; all his property to be confiscated to the king. He was also de clared to have forfeited the legacy left him by Madame Mazel. All proceedings against the wife were sus pended until after the execution of Lebrun. Lebrun appealed from this judgment to the court at Tournelle. M. Barbier d'Ancourt again defended him before this new tribunal. The 22d of February the case was heard. Twenty-two judges rendered an opinion. Two only were in favor of con firming the sentence; four favored a fuller investigation, and the other sixteen the ap plication of torture upon the rack, before proceeding further. A decree was made in accordance with the decision of the majority. The 23d of February M. le Nain, an offi cer of the court, proceeded to apply the tor ture. The frightful sufferings upon the rack could not extort from the wretched man the confession of a crime he had never com mitted.* On the 27th a final decree was made annulling the sentence of death ren dered by the judges at Chatelet, and ordering a continuance of the investigation against Lebrun and his wife for a year. Lebrun during this time was to be kept in prison, and his wife to be set at liberty. The ques tion as to the nullity of the legacy was reserved. After this decree Lebrun, who until then had been kept in secret confinement, had at last the satisfaction of seeing his wife and children; but the poor unfortunate did not long enjoy this happiness. Torture had broken him, grief had killed him. Eight days after the decree he rendered his soul to God, protesting his innocence and forgiving his judges. It should be remarked here that public opinion, only too ready usually to crush an accused, never for an instant admitted the guilt of the poor valet-de-chambre. The body of Lebrun was buried under the altar

of the Virgin in the church of Saint-Barthelemy; relatives and friends crowded to his obsequies. Scarcely was Lebrun sleeping in the tomb when proofs of his innocence presented them selves from all sides. That which some had believed, which others, few in number, had clearly seen, now became apparent to all eyes. Search was made for Berry, who was found and arrested by the magistrate of Sens on the 27th of March, a month after the decree of Tournelles. Berry was carry ing on in the Province a trading in horses. When arrested he offered the officer a purse full of louis if he would let him escape. Berry, whose real name was Gerlat, was, as we have said, born" at Bourges, where his father and mother still lived. He had at first entered the service of a prelate in his native town, the Abbe Guenois; then he had been a domestic in the family of M. Bernard de Rose, and from there went into the service of Madame Mazel. A watch was found on him which Madame Mazel had at the time of her death. Berry was taken to Paris. He was recog nized by many witnesses as having been seen by them about the time of the murder. He denied this energetically. The suspicions aroused in the public mind against the Abbe became too numerous and too well founded to dispense with his arrest. He was accordingly arrested and taken to the Conciergerie, where he was confronted with Berry. From that moment no one was heard to speak of the ex-monk. Doubtless to avoid the scandal of a priest compromised by an affair of murder, perhaps also to spare the honorable family of the De Savonnieres shame and degradation, he permitted himself to be expelled from the Church by the ecclesiastical authorities. As for Berry, he was condemned. His crime became more and more apparent from day to day. The shirt and the cravat be longed to him. The napkin rolled into the shape of a cap fitted him exactly. He had been seen to have the knife with which the The Character of a Solicitor in 1675. deed was committed; he had the watch of his victim upon him when arrested. Nothing could be clearer; but was Lebrun an accomplice of Berry? He (Berry), un able to deny his participation in the crime, tried to throw the blame upon the valet-dechambre; but on the day of his execution he freed his conscience. In the presence of M. le Nain and of his counsel Gilbert, he made a full confession, in which he acknowledged that he alone was the author of the crime. His object had been robbery, and he suc ceeded in obtaining some six thousand livres, which Madame Mazel had in a purse. He had not intended to kill Madame Mazel, but was forced to do so on her attempting to call for aid. He said nothing of any complicity on the




part of the family, or of the persons it was believed were concerned in the affair. He carefully avoided any allusion to them. In 1694 a decree of Parliament rehabili tated the memory of Lebrun, and, in spite of the efforts of the advocate for the De Savonnieres, confirmed the legacy of six thousand livres. The Savonnieres and the administrators of the laws of those times are objects of disgust and shame to modern generations; the poor valet unjustly condemned, the poor widow whose husband's life was actually bargained, away, have had added to their denouncing voices the voices of all those of later times, who have unhesitatingly condemned the in famous regime under which such travesties upon justice were possible.


THE following extract from a pamphlet, fices. He can instruct with the counsellors, plead dated 1675, illustrates the reputation in as an attorney; he has all the tricks and quillets which solicitors as contrasted with attorneys . of an informer, nay, and a bum too, for a need — in a word, he is a Jack-of-all-trades, and his shat were then held : — tered brain, like a crackt looking glass, represents A solicitor is a pettifogging sophister, one a thousand fancies. He calls himself Esquire of whom by the same figure that a North Country the Quill, but to see how he tugs at his pen, and peddler is a merchant man, you may style a law belaboureth his half amazed clyents with a cudgel yer. List him an attorney, and you smother Tom of cramp words, it would make a dog break his Thumb in a pudding. The very name of scrivener halter. The jugling Skip Jack being lately put to outreaches him, and he is swallowed up in the his last shift, has metamorphosed a needle into a praise, like Sir Hudibras in a great saddle. Noth- goose feather, and the sole of an old shoe into a ing to be seen but the giddy feathers in his crown. sheet of paper, for the best of his profession have Some say he's a gentleman, but he becomes the been forlorn taylors, outcast brokers, drunken cobepithet as a swine's snout does a carbuncle; he is lers, or the offspring of such a rabble rout. He just such another dunghill rampant. The silly hugs the papers as the devil hugg'd the witch, countryman (who seeing an ape in a scarlet coat, for they are an advancement of his science, these best (sir) his young worship and gave his lord frisk about him like a swarm of bees, yet he is a ship joy) did not slander his complement with man of vast practice if he has but half a score of worse application than he that names him a law 'em. If his lowsie clyents chance to recover an giver. The cook that served up a rope in a pye old rotten barn or a weather-beaten cottage, he (to continue the frolick) might have wrapped up will be sure to have two-third parts for a quantum such a pettifogger as this in his bill of fare. He meruit. He is Lord Paramount among the shift is will-with-a-wisp, a wit whither thou woo't. Pro ing bailiffs, and a sworn brother to the marshall teus has not more shapes than he can perform of- men, and is behind none of them at the extortive 220|The Green Bag.|}}

faculty, having the confidence to demand item for and more than that, he scorns to cheat you in his pains and trouble, when all the while he does hugger mugger, but will not fail to do so before nothing but hover over a quart pot. He is as of your face. He is like the man that cried, Any fensive to the attorneys as flies are to a galled tooth good barber, rather than stand out for a horse, and whereas their ne plus ultra is ten groats, wrangler, if he can pump no chink out of you. Mr. Solicitor forsooth claims double fees with au He will manage your cause for a breakfast, being thority, and if the clyent prove so saucy to deny it, a notable artist at spunging. Oh! he 's a terrible he will rage like Tom of Bedlam, but if that will slaughter man at a Thanksgiving dinner. He out not prevail he'll cast a squeezing look like that of shines a bailiff in all his cheating faculties, and I Vespasian. ... In the society of true and genuine know none outstrips him except his infernal grand lawyers he is like an owl among so many lapwings, father. In fine, he is the yeoman's horseleech, the and is no more fit to converse with them than a gentleman's rubbing brush, and the courtier's quid hogherd is to preach a sermon or a cinder-wench pro quo. He is the summum bonum of knavery; to wait upon a countess. . . . He writes a bill of in judgment a meer pigmy; in shew the beard of costs in such worm-eaten characters that 'tis past a demi-blazing star. To be brief, he is like a lamp the skill of a Rosicrucian to discover the apocalip- without oil, a trumpet without sound, a smoak tical meaning, yet for all that he will not abate you without fire, a fiddle out of tune, or a bell without an ace of the summa totalis, and that, to be sure, a clapper; and differs from a lawyer as a shrimp shall be plain enough. Wherefore, he may very does from a lobster, a frog from an elephant, or a fitly be called the inquisition of the purse . . . tom-tit from an eagle. — The Irish Law Times. Publisher Monthly, at $3.00 per annum.

Single numbers, 35 cents.

Communications in regard to th"e contents of the Magazine should be addressed to the Editor, Horace W. Fuller, i 5^ Beacon Street, Boston, Mass. The Editor -will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities or curiosities, facetia, anecdotes, etc. THE GREEN BAG. Hp HE Law Journal (London) appears to have -*. selected the " Green Bag " for a target, and is pouring in a broadside. If, however, it has no better ammunition than its last shot, we think we shall be able to survive its attacks. In its issue of March 30 it says : — "Green is the color of the ocean in which, accord ing to an ethereal authority, nothing of man that doth fade, but doth suffer a sea change into something rich and strange. Nothing of man fades so much as the stories that attach to his name commonly by a change of one man's story to another's. Some power of the kind appears to affect the ' Green Bag,' the second number of which has appeared. No doubt a receptacle of so much capacity and anx iety for titbits must absorb much foreign matter, which, however, should be treated with respect, and not, like Macaulay's children stolen by gypsies, dis figured so as to conceal its identity. In 'A Genera tion of Judges,' published in London some two years ago, there are many stories which the literary scis sors have been unable to resist. One of these is told in the ' Life of Chief-Baron Kelly,' and con cerns a brougham, a cab, an omnibus, and a puzzled woman with a baby. The ' Green Bag,' we grieve to say, extracts the words of the tale, and confuses its identity by attributing it to one ' Mr. Justice Bramwell.' " We regret to say that at the time of publishing the anecdote in question we had never seen a copy of " A Generation of Judges," and conse quently that "titbit" was not derived from that source. Where, then, did it come from? Why, from one of the leading law journals " across the pond "! If the Editor of our esteemed contem porary will turn to his file of the Irish Law Times, he will find, under date of June 4, 1887, the same anecdote, and will also find that it is there attributed to " Mr. Justice Bramwell." 3°

It was, therefore, in the " United Kingdom " that the horrible crime was committed, and this poor little waif was " stolen like Macaulay's chil dren, and disfigured so as to conceal its identity." The Editor of the " Green Bag " welcomed the "little stranger" and took him in, never dream ing that he was parading under false colors. A handsome apology from the Law Journal is now in order.

The Irish Law Times, one of the brightest and most readable of our transatlantic exchanges, and to which we are indebted for many of the good things furnished to our readers, has the following pleasant words for the " Green Bag : " — "Not even the black or blue bag of your barrister, or the red bag of his brother at the Parliamentary bar, could contain anything half so pleasant and agreeable as ' The Green Bag, a Useless but Enter taining Magazine for Lawyers,' the first numbers whereof have come to hand from Boston, Massachu setts. It is, in fact, a new departure in legal jour nalism : prose, poetry, engravings, — and all of them excellent, — but none of that solid pabulum looked for by the lawyer in the daily needs of practice. Light, readable, and entertaining, the new journal addresses itself to his hours of relaxation. It will amuse him, it will interest, but forbears to instruct him. It is not a bag to be associated with him in court, but to be left behind in the robing-room; like the English barrister's bag, used as a mere receptacle of forensic costume. The issues received render us anxious to receive the next; and while greeting the new-born monthly with zest, we hope that it will yet be the means of giving equal pleasure to many other readers in this country."

We trust our readers will bear in mind our desire for contributions, not only of short articles, but also of anything that will add to our fund of anecdotes, facetiae, etc. Send along any good stories that you hear, and the Editor will be delighted to " bag " them. 222|The Green Bag.|}}

LEGAL ANTIQUITIES. When pleading was scarcely developed, the courts used to hear suits against animals. The fondness for imaginary trials in the Middle Ages took a practical shape. By the old law of France, if a vicious animal killed a person, and it was proved that the owner knew of its propensity to attack people and suffered it to go at large, he was hanged and the animal also. In 1314, a bull having killed a man by tossing him with its horns, it was brought before the judges in the province of Valois, and indicted as a criminal, and after several witnesses had given evidence, it was con demned to be hanged. This sentence was con firmed by an order of Parliament, and carried into effect. And we are told that an unfortunate pig which had chanced to kill a child in Burgundy, was in like manner solemnly tried in court and suffered the same punishment. So late as 1650, the French law books treated of the proper pro cedure against animals, such as rats, locusts, flies, eels, and leeches, and the mode of appointing counsel to defend them. In Switzerland criminal prosecutions were often brought against worms. Nicholas Chorier, a French historian, mentions that in 1584 heavy rains brought on a vast num ber of caterpillars. The walls, windows, and chimneys were covered with them. The Grand Vicar of Valence cited the caterpillars before him; he appointed a proctor to defend them. The cause was solemnly argued, and he sentenced ' them to quit the diocese. But they did not obey. It was discussed whether to proceed against these animals by anathema and imprecation, or, as it was expressed, by malediction and excommunica tion. But two priests and two theologians, having been consulted, changed the opinions of the Grand Vicar, so that afterwards nothing was made use of but adjuration, prayers, and sprinkling holy water. The life of these animals is short; and these cere monies, having continued several months, received the credit of having miraculously exterminated them. The famous French lawyer, Chassanee, first established his fame by defending the rats in a process that had been instituted against them in the diocese of Autun. The rats did not appear at the first citation, and their advocate suggested that they had not all been summoned, but only those in a few localities; the proper way was to summon

all the rats in every parish. This was held a good plea, and therefore all the rats were duly sum moned. They did not, however, attend; but their advocate suggested that many of them were old and sick, and an extension of time should be given. This was again allowed, but the rats did not come into court at the extended time. The advocate then pleaded as the next excuse, that the rats were most anxious to come, but as there were many cats on their way to court, they were entitled to protection in going and coming, other wise they were afraid to venture out of their holes. Therefore security must be given that the cats would not molest the litigants. The court allowed that this was reasonable; but the owners would not undertake to be bound for the good behavior of their cats, and so the next appointment of sit ting of the court fell through, and the hearing was adjourned sine die. — Curiosities of Law and Lawyers. The reign of Richard III. was a remarkable epoch in the legislative annals of England; not only from the statutes being thenceforth in Eng lish, but likewise from their having been the first which were ever printed. We accordingly find in these laws exceptions in favor of scriveners (em ployed in copying books), alluminors (illumina tors), printers, and readers of books. Books were then so excessively dear that Daines Barrington conjectures the readers above mentioned were booksellers, who received money from an audi ence who were either incapable themselves of reading, or otherwise could not afford to purchase the books.

FACETIAE. A party brought a suit for divorce before a jus tice of the peace. When the case came up for trial the defendant pleaded the want of jurisdiction. The justice put on his specs, and after careful examination of the statute concluded that he had jurisdiction in all cases where the value of the property did not exceed one hundred dollars. So he told the plaintiff he would have to file an affidavit stating that his wife and children did not exceed the value of one hundred dollars; which was done, and the divorce forthwith granted. Editorial Department. As Sheridan was entering court one day, carry ing his books and briefs in a "green bag" accord ing to the custom of the time, some of his brother barristers, thinking to play a joke on him, urged some boys to ask him if lie had old clothes for sale in his green bag. "Oh, no! " instantly replied Sheridan; " they are all new suits." At the recess of the first day of term, after a large number of inquests and defaults had been taken because a number of attorneys failed to answer when called, Mr. X and Judge Y were talking together in the corridor as Counsellor Z passed. "Here, Z," said the first, " we were just speak ing of you." "Yes," added the judge, with a twinkle in his eye; " and you must excuse me for being re minded of the old saying, ' Speak of the devil and he is sure to appear.' " "No, your Honor," promptly replied, the coun sellor, " that rule does not prevail at this bar; if it did, very few defaults or inquests would ever be taken." A lawyer who prided himself upon his skill in cross-examining a witness, had once an odd-look ing genius upon whom to operate. "You say, sir, that the prisoner is a thief? " "Yes, sir, because she confessed it." "And you also swear that she bound shoes for you subsequent to the confession? " "I do, sir." "Then," giving a sagacious look to the court, "are we to understand that you employ dishonest persons to work for you, even after their rascalities are known? " "Of course; how else, pray, could I get as sistance from a lawyer?" The witness was peremptorily ordered to " stand down." A debate once took place among the members of the court of a neighboring State, as to how long they should set to dispose of the business before them. Three weeks were at last determined on. "Why, in the name of wonder," inquired a wag at the bar. " do they not set four weeks, like other geese? "


"I hear," said somebody to Jekyll, "that our friend Smith the attorney is dead, and leaves very few effects." "It could scarcely be otherwise," returned Jekyll; "he had so very few causes."

"Gentlemen, all I ask for is common-sense! " exclaimed an excited barrister, during a closely contested case. "Yes, that is precisely what you need," retorted the opposing counsel.

Gilbert A' Beckett celebrated his elevation to the office of magistrate at the Greenwich Police Court by a characteristic pun. A gentleman came before him to prefer a charge of robbery with vio lence, committed in the middle of the night. In stating his case he mentioned that the assault occurred while he was returning home from an evening party. The worthy magistrate inter rupted him by observing, " Really, sir, I cannot make up my mind to accept anything like an ex parte statement." Erskine, on hearing one day that a member of the bar who was known to have an insatiable ap petite had actually eaten away his senses, observed, "Pooh! they would not have made a mouthful for him! " Sergeant K , having made two or three mis takes while conducting a cause, petulantly ex claimed, " I seem to be inoculated with dulness to-day! " "Inoculated, brother?" said Erskine; '• I thought you had it in the natural way."

"Now, sir," said an attorney, examining a medi cal expert, " how long, in your opinion, can a man live without brains?' "Well," replied the witness, " that is a difficult question to answer; but if I knew your age, I could tell you exactly." A few years ago, when the Maine Liquor Law was in full force in Vermont, Judge C of was on a journey. He stopped at a tavern in a cer 224|The Green Bag.|}}

4ain town for the night. After supper the worthy judge asked the worthy landlord "for a glass of gin." The landlord said he was sorry, he could not accommodate him. " I am obliged by law to keep a temperance house." It was late; so the judge could not go on that night, but he told the landlord he would leave early the next morning before breakfast. " Very well, I will carry your valise and show you to your room." The judge was thereupon taken to a fine room; the landlord said, " I hope you will be comfortable," and retired. There was an open stove in the room, where Judge C found a bottle of brandy. He went to the wash-stand and opened it; there he found a bottle of gin, water, glasses, etc. In a cupboard was a bottle of old Bourbon. The judge, after helping himself, went down and told the landlord he would not leave early. After breakfast the next morning, the judge paid his bill, and said to the landlord, " I have been a great opposer of ' tem perance houses,' and always refuse to stop at one; but I like the hang of yours, and will call when ever I come this way." " I am sorry," replied the landlord, " I could not let you have some gin last evening; but the law is so strict, and my neigh bors keep close watch, so I am obliged to keep a ' temperance house.' "

One of the judges of the West Virginia Court of Appeals tells the following as having actually occurred when he was examining an applicant for license. The applicant was of mature years, hav ing previously held the office of justice. Judge. What are the requisites of a valid will? Applicant. Can't tell 'em all, Judge, but I re member one is that it must be read at the burial over the grave of the testator. Judge. What is a fee simple? Applicant. I guess about two dollars and a half. Judge. What is the largest estate in land? Applicant. A very large estate would, in this country, be about one thousand acres. — Virginia Law yournal.

As Rufus Choate was cross-examining a witness, he asked him what profession he followed for a livelihood. The witness replied : " I am a candle of the Lord, — a minister of the Gospel."

"Of what denomination?" asked the counsellor. "A Baptist," replied the witness. "Then," said Mr. Choate, " you are a dipped, but I trust not a wick-ed candle."

There was a very irascible 'old gentleman who formerly held the position of justice of the peace in one of our cities. Going down the main street one day, one of the boys spoke to him without coming up to his Honor's idea of deference. "Young man, I fine you five dollars for contempt of court." "Why, Judge," said the offender, " you are not in session." "This court," responded the judge, thoroughly irritated, " is always in session, and consequently always an object of contempt! "

At a term of Common Pleas in Indiana, during the trial of an Irish will case, Tim Dooley was on the stand and thus testified : — "I am brother to Molly Flaherty, and I am brother to Betty Hoolahan." "Then, Mr. Dooley," said Judge B , "we are to understand that you are two brothers? " "Yis, Misther Judge," replied Dooley, with great deliberation; " aitch of me sisters had a brother! "

A negro who was giving evidence in a Georgia court was reminded by the judge that he was to tell the whole truth. "Well, yer see, boss," said the dusky witness, "I 'se skeered to tell de whole truth for fear I might tell a lie."

"Your Honor, I am summoned to serve on the grand jury, but I wish you would excuse me." "What is your business, sir? " "I am a coal- merchant, your Honor, and very busy this weather." "You are excused, sir, on the ground that it would be impossible for a coal-dealer to weigh a matter properly and find a true bill." Editorial Department. NOTES. Bolinubroke said : " It is a very easy thing to devise good laws; the difficulty is to make them effective. The great mistake is that of looking upon men as virtuous, or thinking that they can be made so by laws; and consequently the greatest art of a politician is to render vices serviceable in the cause of virtue." The true objection to modern statutes (says Barrington) is rather their prolixity than their want of perspicuity; which redundancy hath in a great measure arisen from the use of printing. When manuscript copies are to be dispersed, the trouble of writing an unnecessary word is con sidered; but a page or two additional in print neither adds much to trouble nor expense. From the reign of Robert I. words began to be multiplied; before the reign of James III. the evil had increased; it is now familiar. How the chimes are rung in our enlightened age upon any horse, mule, ass, cattle, coach, berlin, landau, chariot, chaise, calash, wagon, wain, cart, or other carriage whatsoever! as if " every quadruped and carriage " would not comprehend all particulars. — Hist. Memorials, by Sir David Dalrymple, Edinburgh, 1796. How we still love to stick to the same old an tiquated and ridiculous forms, even in these modern days! Three fourths of the words in all our legal instruments are mere surplusage and vain repetitions. Why should the legal profession alone be obliged to " beat all about Robin Hood's barn," to express that which might be stated clearly and distinctly in a few simple words? It is time that this absurdity was thoroughly and effectually dis posed of. The first edition (folio, 1698) of "Shower's Cases in Parliament"' was published anonymously, the chief peculiarity of the titlepage being a quo tation from Horace, running thus : — Quicquid sum Ego. quamvis Infra Lucili censum ingeniumq; tamtn me Cum Magnis vixisse, invita fatebitur usq; Invidia Hora. t. It is not perhaps unnatural, but is somewhat amusing, to find this edition catalogued in a Phila delphia list as " Horat's Reports "


Anacharsis, the intelligent foreigner of his day, on visiting Athens and hearing of the laws of Draco and Solon, said : " All the laws you can make are but spiders' webs, which the strong will break through, and only the poor fly will be caught." The portraits of Justice Rutledge of South Caro lina, who died before he took his seat on the bench, and Justices Ellsworth and Matthews, are required to complete the collection of portraits of members of the United States Supreme Court in the robingroom in the Capitol. The portrait of Chief-Justice Waite has just been added. An artist is now at work on the portrait of Justice Rutledge, prepar ing it from an old picture. The preparation of Judge Matthews's portrait awaits a congressional appropriation. It has been well observed by a modern writer, that " we are very apt to mistake the foulness of a crime for certainty of evidence against the in dividual accused of it; or in proportion as we are impressed with its enormity, the less nice we be come in distinguishing the offender." A striking illustration of this remark presented itself in a case tried some years since. An atrocious murder hav ing been committed, an unfortunate individual was accused of being the murderer, and brought to trial. The judge charged the jury that no evi dence had been produced against the prisoner, and that therefore they must of necessity acquit him. To the surprise of the court, however, the jury returned a verdict of " guilty." The verdict having been recorded, the judge requested to know upon what shadow of proof it had been found. " My lord," answered the foreman, " a great crime has been committed; somebody ought to suffer for it; and we do not see why it should not be this man." The longest lawsuit ever known in England was the famous " Berkeley suit," which lasted upward of one hundred and ninety years, having commenced in 1416 and terminated in 1609.

An Irish statute-book opens characteristically with " An Act that thef King's officers may travel by sea from one place to another within the land of Ireland." 226|The Green Bag.|}}

Accent SDeatljsf. Col. Edward P. Nettleton, late Corporation Counsel of Boston, died April 1 7. He was born at Chicopee Falls, Nov. 7, 1834. He graduated at Yale College in the Class of 1856, and having taught in Liberty and in Lynchburg College, Lynch burg, Va., he was in 1857 chosen principal of the high school in his native place. This position he resigned in the fall of 1858, to enter on the study of law in New York. A year later he re turned to Chicopee as principal of the high school. In the autumn of 186 1 he joined what was known as the Western Bay State Regiment, and on the 10th of December he was mustered in as captain of Company E, Thirty-first Regiment. Returning to Massachusetts after the war, Colonel Nettleton resumed the study of the law in Springfield and at the Harvard Law School, and was admitted to the bar in 1867. January, 1869, he was appointed Assistant United States District Attorney, resigning in 1873 to engage in general practice. In 1876 he was appointed by John P. Healy Fourth Assist ant City Solicitor, was promoted to Second Assist ant in 1878, to First Assistant in 1879, and was elected City Solicitor in 1881, which office he re signed, in November of the same year, to accept the position of Counsel for the New York and New England Railroad. May, 1882, he was elected Corporation Counsel for the city of Boston, and left the railroad to accept that office, which he held by annual elections and appointments until, on account of failing health, he resigned it Dec. 24, 1888. The death of William Henry Rawle removes one more of the old-fashioned, typical " Philadel phia lawyers," and those now remaining could al most be counted on the fingers of both hands. Like Horace Binney, Eli K. Price, and Benja min Harris Brewster, Mr. Rawle came of good family, and received his legal education in Phila delphia when the city was still the legal centre of the country. While, perhaps, not having the national reputa tion of the three attorneys named, he was thor oughly learned in the law; and his published works, the first issued in 1852, have become standards on contracts and land titles. ' Mr. Rawle's manners were those of the old school, and he was naturally retiring in disposi

tion. This explains, probably, why, after being defeated for Supreme Judge in 1882, he never sought a renomination. His integrity, ability, and legal knowledge will link his name securely with the history of the most famous period of the Philadelphia bar. We hope in our June number to give our readers an excellent portrait and a more extended sketch of the life of this eminent lawyer.

Mr. William R. Archer, the " father of the Illinois Senate," died at his home in Pittsfield, 111., April 13. Mr. Archer was born in Flushing, L. I., June 21, 1815. He studied law, and began practice in Illinois directly after his admission to the bar. He was at one time law partner of Stephen A. Douglas, and ranked at the top of his profession. He was a member of the constitu tional conventions of Illinois in 1847 ar>d 1870. He was the oldest member in continuous service in the State Senate, and a lifelong Democrat. One of his most notable legal achievements was the successful defence of a suit against the State of Illinois involving $3,000,000.

Col. George W. Dyer, the prominent patent lawyer, died in Washington, April 13. He was a native of Maine, and was educated at Yale and Bowdoin, being an alumnus of the last-named col lege. At the commencement of the war he be came a member of the staff of the Governor of Maine, with the rank of lieutenant-colonel. Sub sequently he was appointed paymaster in the army, and as such was stationed in Washington, and with the army of the Potomac from 1862 to 1869. After being mustered out of the military service he im mediately resumed the practice of law, making a specialty of patents and taking a leading position in the Patent Office He was best known for his connection with the contests over the right to the telephone, the electric light, electric railways, and other large interests. He was largely employed by Mr. Edison. In the death of Judge Charles E. Stuart Vir ginia loses one of her most brilliant and capable sons. Educated at the University, a lawyer of marked ability, a smooth, graceful, and convincing speaker, he attained at an early age a prominence in public affairs that in Virginia of late years has Editorial Department. been generally reserved for much older men. Mr. Stuart was first elected Judge of the city of Alex andria, and when afterwards he was elected to the House of Delegates, was chosen in his second ses sion the Speaker of that body. He was returned to the bench after declining re-election to the Legislature, and served in that position till his death. Throughout the State there will be many who knew the deceased and put a just and high estimate upon his superior abilities, who will hear with deep regret that this gifted young Virginian has been cut down in the flower of his youth. The bar of Staunton, Va., which has numbered many brilliant lawyers among its members, has lost another prominent figure in the death of Judge Hugh VV. Sheffey, who died on April 7 in his seventy-fifth year. Judge Sheffey was an able lawyer, and had a wide reputation as an authority on parliamentary and ecclesiastical law; and in the general conventions of the Episcopal Church, to which he belonged, his complete mastery of these subjects, says the Baltimore " Sun," made him especially valuable. Hon. Caleb Bogkss, known throughout Virginia for his eminent legal attainments and his promi nence in general affairs of the State before and since the war, died suddenly at his home, on April 14', aged sixty-six years. He was a graduate of the Lexington, Ky., University, in the Class of '54, and later was a member of the Virginia Legislature and the secession convention. John C. Park, one of Boston's oldest lawyers, and in his day a famous orator, died on April 2 1 at his home in Newton. Mr. Park was born in Boston in 1804, graduated from Harvard in 1824, and later was admitted to the Suffolk bar. He was associated in legal practice with the late Charles G. Loring, Judge Jackson, and Sidney Bartlett. Mr. Park served six terms in the State House and two in the Senate. He was also at one time District Attorney for Suffolk County, Clerk of the Supreme Court, and Justice for the Probate Court for West Newton. In noticing the death of William T. Norris, of Danbury, N. H., in our April number, the name was, by an error, made to read William J. Morris.


REVIEWS. The leading article in the April number of the Law Quarterly Review is on " Manorial Juris diction," by G. H. Klakesley. The well-known American writer, Melville M. Bigelow, contributes an interesting chapter on the " Definition of Cir cumvention," taken from his new work on Fraud which is now in press. In " Murder from the Best Motives," Herbert Stephen takes issue with the ideas advanced by Dr. Thwing in a paper entitled " Euthanasia in Articulo Mortis," read before the New York Medico-Legal Society, in which he argued that in some cases of hopeless suffering a physician is morally justified in putting an end to his patient's life. The other contents of this number are " On the Amendment of Law relating to Factors," "County Court Reform," "The Swiss Federal Court," " Federation and PseudoFederalism," " Employer's Liability," and " The Squatter's Case." The March-April number of the American Law Review is uncommonly interesting and entertain ing. This is perhaps to be attributed to the fact, as intimated by the genial editor, in the " Notes," that he (the editor) "has been spurred up by his new business rival ' The Green Bag.' " We congratu late our friendly rival on his determination to follow in our footsteps. In the first place there is a very readable article on "The Use and Value of Au thorities," by Mr. Justice Samuel F. Miller of the United States Supreme Court. Irving Browne contributes a paper on " Dead-Letter Laws." Conrad Reno discusses the " Impairment of Con tracts by Judicial Opinion; " and the address of Walter B.*Hill, President of the Georgia Bar As sociation, on " Bar Associations " is published in full. The "Notes" are made more of a feature than usual, and include poetry as well as prose. Judging from the results, the " Green Bag " has done a good work in spurring up its Western brother, and we shall do our best to make him toe the mark in the future. The April number of the Juridical Review is fully up to the excellent standard of its first issue. For a frontispiece there is a fine picture of Pasquale Stanislao Mancini, the eminent Italian jurist, which is accompanied by an interesting sketch of his life. The other contents are " The 228|The Green Bag.|}}

Oregonian Railway Decision," " How Law is Taught in Italy," " County Councils in Scotland," "The ' Negligence Clause ' in Charter Parties," "Local Government in France," " Lord Fraser," and "The Judicial System of Germany." This new Review must commend itself to the profes sion, and we are confident will meet with the success which it certainly deserves.

a paper upon the manner of carrying into effect the sentence of death by means of electricity, and there is also an account of an interesting series of experiments with the " Death Current " at the Edison Laboratory. J. Hugo Grimm has an ar ticle, in the same number, on " Insanity as a Defence to the Charge of Crime."

BOOK NOTICES. Messrs. Warren and Brandeis continue the dis cussion of "Great Ponds" in the April Harvard Law Review, in an article entitled " The Law of Ponds." The paper is an able reply to the argu ment of Hon. Thomas M. Stetson, published in the February number of this periodical. Prof. James B. Ames contributes an interesting article on "The Disseisin of Chattels."

The Columbia Law Times for April contains a paper on " Direct Taxes," by Prof. F. M. Burdick. The following statement, made by the writer, will perhaps be novel to many of our readers : — "Were one, unfamiliar with the Federal deci sions on the subject, to be asked what was meant by ' direct taxes ' in the United States Constitu tion, he would undoubtedly answer : ' Taxes as sessed upon the property, person, business, income, etc., of those who can pay them.' If his definition were called in question, he would support it not only by quotations from political economists of opposite schools, but from jurists like Judge Cooley (Cooley on Taxation, p. 6). He would be astonished to learn that the Supreme Court had given to these words as used in the Federal Con stitution a different — a purely conventional — meaning, limiting them substantially to real estate and poll taxes." The adoption of electricity as a means of execu tion in capital cases in the State of New York has naturally called forth much discussion upon the subject. In the March number of the MedicoLegal Journal, Henry Guy Carlton contributes

The American Digest, 1888 (United States Digest, Third Series, Vol. II.). West Publish ing Co., St. Paul, 1889. $8.00 net. This Digest gives full and intelligible statements of all points of law decided in each case, excluding dicta. The whole judicial law of the United States for 1888 is embraced in this volume, and the practitioner can turn to it with a certainty that every case is to be found in it, with full, clear, and reliable statements of all points decided. The work is so well known to the profes sion through the first volume (1887), that we need only say that the present volume is fully up to the standard of its predecessor, and has even been im proved in certain minor respects. The classification of paragraphs is such that reference is made ex tremely easy, and the lawyer is thus saved a vast amount of valuable time. The Digest is in fact al most indispensable to every member of the legal profession. Wharton's Law Lexicon (Eighth Edition). Edited by J. M. Lely-Stevens and Son, Pub lishers. London, 1889. This admirable Law Lexicon is too well known by the profession to need any formal introduction. Forming, as it does, an epitome of the law of Eng land, and containing full explanations of the technical terms and phrases thereof, both ancient and modern, as well as the various legal terms used in commer cial business, it is invaluable to both the student and the practitioner. This last is an improvement over all former editions, the editor having made manyadditions and alterations, thereby much enhancing the value of the work. The volume is exceedingly attractive in form; paper, type, and binding being all that could be

desired. The

Vol. I.

No. 6.




June, 1889.

WILLIAM HENRY RAWLE. By George W. Biddle. THE subject of this sketch, William Henry Rawle, of the Philadelphia Bar, was connected on all sides with the profession of the Law. His father (William Rawle, Jr.}, both his grandfathers (William Rawle, Sr., and Edward Tilghman), and his maternal great grandfather (Chief-Justice Benjamin Chew) were distinguished practitioners, and some of them prominently connected with official administration of justice. Among his col lateral relatives are to be found Chief-Jus tice Tilghman, the late Thomas I. Wharton and his sons Dr. Francis Wharton and his accomplished though less distinguished brother Henry Wharton. It would have been strange, if with such surroundings and belongings and breathing such an at mosphere from his infancy, our deceased friend could have taken up any other pursuit than that of the Law; and he seems to have accepted with alacrity the duties and responsibilities thus cast upon him. Mr. Rawle was admitted to practise at the bar of his native city, at the age of twentyone, in the latter part of the year 1844. His first appearance in the Supreme Court of the State was in the year 1848 1 in a case involv ing a point of practice; but the chief inter est of his introduction at that time into the highest court of Pennsylvania is that the illustrious John Sergeant was still continu ing to exhibit his great forensic powers there, his name being several times found in the same volume of reports. The next case in which Mr. Rawle is found in the Court of Errors was two years later, his argument 1 Ilobson v Croft, 9 Perm. St. R. 363. 2 Commonwealth ex rel. v. Cullen, 13 Penn. St. R. 133. 3«

being pretty fully reported, and when he was on the successful side. It was an important case involving the right of alteration of the charter of a trading corporation and the mode of signifying assent to the proposed changes. After this Mr. Rawle's success was assured, and his name appears regularly in tho reports down to within a year of his decease, the last cause argued by him being in the spring of 1888,1 in which the doc trine of the rule against perpetuities was thoroughly discussed. For forty years Mr. Rawle is thus found actively aiding the administration of justice by his arguments before the highest court of his native State, over which his ancestor Chief-Justice Chew had presided while it was yet a British Prov ince. The amount of thoroughly good work done by him during the whole period of his adult life is difficult to express in words; for the results of his learning and ability were so often unconsciously absorbed and reproduced in the opinions of the tribunal before which he was practising, that it is impossible to adjust the proportion of origi nality in the processes of legal ratiocination and ultimate judgment between the counsel laying down the reasons for the decision and the judge who finally pronounced it. It is enough to say here that the court was always well supplied with materials for its judgment when Mr. Rawle appeared before it, whatever may have been the conclusion to which it found itself impelled. But great as his merits were on the active side of his professional life, they were only a part of his title to our respect, and per1 Mifflin's Appeal, 121 Penn. St. R. 205. 230|The Green Bag.|}}

haps the profession will ultimately decide the lesser part of his claims to its gratitude. His book on " Covenants for Title," pub lished as early as 1852 and passing through five editions in his lifetime, will continue an enduring title of honor to him as long as clearness of legal perception, soundness of judgment, and profound learning in dealing with a technically difficult subject shall be estimated at their true value. A work upon so important a branch of the law, the merits of which are attested by the number of edi tions through which it has already passed, was liberal payment of the debt which the lawyer is supposed to owe to his profession; but much as it was, it was only a discharge in part of the claim which our friend believed himself to be under to it. His treatise on "Equity in Pennsylvania," emitted in the year 1868 in the form of a lecture before the Law Academy of Philadelphia, is an admira ble view of the subject which it discusses; and the synopsis found in it, with the Reg istrar's Book of Governor Keith's Court of Chancery, contained in the appendix, which Mr. Rawle's labors unearthed from its un known hiding-place among the archives of the State at Harrisburg, greatly enhance the value of the essay. It is not too much to say that, taken as it should always be with the " Essay on Equity " in Pennsylvania, by Anthony Laussat, Jr., the remarkable production of a student of law, there is pre sented to the inquirer into this head of juris prudence a most favorable view of the mode in which equitable relief has been and con tinues to be administered in Pennsylvania, presenting a system well worthy of imitation and adoption. Mr. Rawle's intellectual activities did not stop here. He was a ready and graceful writer upon general subjects, and two of his occasional addresses are so admirable that it would be a grave omission to pass them over. His address upon the unveiling of the statue of Chief-Justice Marshall, deliv ered at Washington in the month of May, 1884, is remarkable for its freshness, its neat

ness, the absence of commonplace in dealing with a hackneyed subject, and the beautiful compendium of the official life of the distin guished subject of the eulogy. The address upon "The Case of the Educated Unem ployed," made at Harvard, June 25, 1885, before the Phi Beta Kappa Society, abounds in admirable advice to the young and aspir ing, conveyed in polished, sometimes epi grammatic phrases; and a vein of commonsense runs throughout the whole of it. It is one of the best of the many addresses delivered at that time-honored institution of learning. Although not a frequent speaker upon the occasional gatherings of the profession, either for social purposes or more frequently to pay the tribute of respect to departed associates, some of Mr. Rawle's remarks at such meetings show with what ease and suc cess he handled such subjects. Tvo of these may be here referred to as good illustrations of his style, — the first his remarks at the Bar Meeting held to take action upon the death of Henry Wharton on the 15th of November, 1880; the other, upon the occa sion of the reception given by the Bar of Philadelphia to Chief-Justice Sharswood upon his retirement from the Supreme Court on the 20th of December, 1882. No one who heard or who now reads these addresses can fail to be delighted with the exquisite taste, the happy catching of and adaptation to the tone of the occasion, the nice dis crimination of praise awarded to the subjects of the speeches, the high professional tone, and the thorough good-fellowship and sympathy with the members of the profes sion, exhibited throughout. The only regret upon reading them is that they were not more frequently delivered. But Mr. Rawle's sensitiveness shrank at all times from public deliverances, except in the way of profes sional work, and a little pressure was neces sary to be exerted upon him, except where the outwellings of affection and sympathy flowed spontaneously from his lips From this short sketch it will be seen that The Great Seal. the bar of which he was a member, when it met in the end of the month of April of this year to show respect to one of its best men, was entirely within the just limits of mortu ary eulogy when it asserted that William Henry Rawle "was in himself an example


of the best qualities which go to form the character of a sagacious adviser, a highminded and capable advocate, and a useful citizen, and [that] his death is a loss not only to the bar but to the community at large."

THE GREAT SEAL. THE office of " Chancellor of the Kings of England " has existed from the most remote antiquity. Lord Campbell, in his " Lives of the Chancellors," says : " The almost fabulous British king Arthur is said to have appointed a chancellor. The AngloSaxon monarchs from Ethelbert downwards certainly had such an officer; but although the office then existed, centuries elapsed be fore it assumed the functions of a court." The king has ever been considered the fountain of justice. In very early times, as he could not himself in person decide all controversies and remedy all wrongs, tribu nals were constituted, over which deputed judges presided to carry the law into execu tion. Still, applications were made to him personally by injured parties for redress; these were to be referred to the proper forum, and process was to be made out for summon ing the adversary, and directing that after both sides had been heard the appropriate relief should be administered. To assist him in this department, the king employed a secre tary, on whom, by degrees, it was entirely devolved; and this officer, on a statement of facts by the complainant, framed writs or letters, in the king's name, to the judges, by which suits were instituted. Forms were adopted, to be always followed under similar circumstances; and a place was named to which all suitors might resort to be furnished with the means of obtaining justice. This was the officina justitia, called Chancery; and the officer who presided over it was called Chancellor.

Again, grants of dignities, of offices, and of lands were made by the king. The writs above referred to, and these grants were in the earliest times verified merely by signature. The art of writing being then but little known, seals became common; and the king, accord ing to the fashion of the age, adopted a seal with which writs and grants were sealed. This was called the Great Seal, and the cus tody of it was given to the chancellor. It has generally been supposed that Ed ward the Confessor was the first English sovereign who used a seal; but Dugdale shows that there were some grants under seal as far back as King Edgar. At first the chancellors were selected from the ecclesiastical order. The king always had near his person a priest, to whom was intrusted the care of his chapel and who was his confessor. This person, selected from the most learned and able of his order, and greatly superior in accomplishments to the unlettered laymen attending the court, soon acted as private secretary to the king, and gained his confidence in affairs of state; and to this person was assigned the business of superintending writs and grants, with the custody of the Great Seal. The first layman intrusted with the keep ing of the Great Seal was William Fitzgilbert, who was appointed chancellor by Queen Matilda; and from his time no other layman was appointed until the reign of Edward III. The Great Seal has ever been considered the emblem of sovereignty, — the clavis reg 232|The Green Bag.|}}

ni, — the only instrument by which, on sol emn occasions, the will of the sovereign can be expressed. Absolute faith is universally given to every document purporting to be under the Great Seal, as having been duly sealed with it by the authority of the sover eign. The law, therefore, takes anxious pre cautions to guard against any abuse of it. To counterfeit the Great Seal is high treason, and there are only certain modes in which the genuine great seal can be lawfully used. In stormy times' these potent symbols of authority have passed through many vicis situdes. It has been usual to consider the Great Seal as inseparable from the person of an existing chancellor; but there were often concurrently a chancellor and a keeper of the Great Seal. When the king went abroad, sometimes the chancellor accom panied him with the Great Seal, another seal being delivered to a vice-chancellor, to be used for the sealing of writs and despatch of ordinary business; and sometimes the chancellor remained at home while the vicechancellor attended his sovereign. When Richard I. went to the wars in Palestine, Longchamp, his chancellor, remained in England; but while he held the office he always had vice-chancellors acting under him, who were intrusted with the custody of the Great Seal. Hoveden relates that while Longchamp stayed in England to administer the government, Malchien, as vice-chancellor, attended Richard in Sicily, on his way to Palestine. Off Cyprus the unfortunate man fell overboard, having the Great Seal sus pended round his neck; and both man and seal found a watery grave. In 1206 King John, to raise money for his necessities, put up the Great Seal at auction, and it was purchased by one Walter De Gray, who paid down 5,000 marks (equal to £61,245 of present money) for it during the term of his natural life, and the grant was made out to him in due form. Under this he actually held the chancellorship for six years. It is somewhat surprising among the "Lives of the Chancellors " to find recorded

the history of a woman. The only lady keeper of the Great Seal was Queen Eleanor, who was appointed by King Henry custodian of the Great Seal, in the summer of 1253, when he was about to lead an expedition into Gascony to quell an insurrection in that province. She held the office nearly a whole year, performing all its duties, as well judicial as ministerial. In 1688, on the landing of William the Prince of Orange, James II. conceived the plan of destroying the Great Seal, believing that without it the government could not be conducted. On the night of December 10, he left Whitehall, completely disguised, ac companied by Sir Edward Hales, whom he afterwards created Earl of Tenterden. Lon don Bridge (which they durst not cross), being then the only one over the Thames, they drove in a hackney-coach to the horseferry, Westminster; and as they crossed the river in a boat, the king threw the Great Seal into the water, and thought that he had sunk with it, forever, the fortunes of the Prince of Orange. But this seal, the emblem of sovereign sway, which had been thrown into the Thames, was found shortly after in the net of a fisherman near Lambeth, and was delivered by him to the I-ords of Coun cil, who were resolved to place it in the hands of the founder of the new dynasty. This finding called forth the observation from Sir John Dalrymple, " that Heaven seemed by this accident to declare that the laws, the constitution, and the sovereignty of Great Britain were not to depend on the frailty of man." About a century later, March 24, 1784, London was thrown into consternation by the news that the Great Seal had been stolen from Lord Thurlow, who was then Lord Chancellor; and many who attached a super stitious reverence to this bawble imagined that for want of it all the functions of the executi%re government must be suspended. A charge was brought against the Whigs, that, to prevent the threatened dissolution, they had burglariously broken into the Lord The Great Seal. Chancellor's house in the night-time and feloniously stolen and carried off the clavis regni. The truth was that very early in the morn ing of the day in question some thieves did break into Lord Thurlow's house, in Great Ormond Street, which then bordered on the country. Coming from the fields they had jumped over his garden wall, and forcing two bars from the kitchen window, went upstairs to a room adjoining the study. Here they found the Great Seal inclosed in the two bags so often described in the close roll, — one of leather, the other of silk, — two silver-hilted swords, belonging to the chancellor's officers, and a small sum of money. With the whole of this booty they absconded. They effected their escape without having been heard by any of the family; and though a reward was offered for their discovery, they could never be traced. In 1 8 12 an amusing incident occurred in connection with the Great Seal. During the autumn, part of Lord Chancellor Eldon's house, at Encombe, was destroyed by fire. The scene Lord Elton afterwards described very graphically in his old age : " It really was a very pretty sight," he said; " for all the maids turned out of their beds, and they formed a line from the water to the fireengine, handing the buckets; they looked very pretty, all in their shifts While the flames were raging he was in violent trepi dation about the Great Seal, which, although he was not in the habit, like one of his illus trious predecessors, of taking to bed with him, he always kept in his bedchamber. He flew with it to the garden, and buried it in a flower border. But his trepidation was almost as great next morning; for what be tween his alarm for the safety of Lady Eldon and his- admiration of the maids in their vestal attire, he could not remember the spot where the clavis regni had been buried.


The entire household turned out and com menced digging for the hidden treasure. "You never saw anything so ridiculous," he said, " as seeing the whole family down that walk probing and digging till we found it." This was the Great Seal which Erskine held for the brief space of fourteen months, and concerning which, though the loss of office was a serious blow both to his ambi tion and his purse, he could afterwards afford to joke so pleasantly. At a dinner-party Captain Parry was asked what he and his crew lived upon during the Arctic winter. "We lived chiefly on seals," he replied. "And very good living, too," said Erskine, "if you keep them long enough." Later, William IV. was very angry with Lord Brougham for taking the Great Seal to foreign parts in his valise. A young lady once made it her pleasure to obtain the seal from this gallant old lawyer, and compelled him to go down on his knees to her on a rather public occasion, before she would re store it to his keeping. The chancellors who have had the custody of the Great Seal have by no means found the office a bed of roses. The history of their lives, in former times, unfolds a series of struggles with disappointed aspirants and even with their sovereigns. In later years the impeachment of these high officials has been of frequent occurrence; and within the last four centuries no less than six lord chan cellors have been brought to the bar of their country to answer for alleged malfeasance in office, — Cardinal Wolsey, Lord Bacon, Lord Keeper Finch, Lord Clarendon, Lord Somers, and Lord Macclesfield; and of these Lord Somers alone was acquitted. In 1865 Lord Westbury was forced, by the emphatic expres sion of the popular will, to resign his office as chancellor, under circumstances which appeared to leave no doubt that his official record was not free from stain. 234|The Green Bag.|}}

A DIP INTO MY LAW BOOKS. OLD Hooker has been pleased to describe law as the mother of peace and joy. I fear, however, that many of her offspring have had reason to lament their maternal in heritance, and to complain that what they derived ex parte matemd was, in the phrase ology of the lawyers, damnosa hareditas, — an injurious inheritance. A very clever satirical writer (G. A. Stevens), after propos ing to consider the law, because our laws are very considerable both in bulk and numbers, proceeds thus : " Law is law " (which is per haps the best definition that can be given of it). "Law is like a country dance, — peo ple are led up and down it till they are tired. Law is like a book of surgery, — there are a great many terrible cases in it. It is also like physic, — they who take the least of it are best off. Law is like a homely gentle woman, — very well to follow. Law is like a scolding wife, — very bad when it follows us. Law is like a new fashion, — people are bewitched to get into it. It is also like bad weather, — most people are glad when they get out of it." We may add that law is .like a battle, — they are safest who are farthest off from it. But notwithstanding all these objections to law, people will run into it; and the numerous battles that have been fought by them are recorded in the Law Re ports, into which we intend to look for a few minutes' amusement. It is actionable to call a counsellor adaffydown-dilly, or to say of an attorney that "he hath no more law than Mr. C.'s bull," even although Mr. C. actually have no bull at the time; for if that be the fact, said the judge who tried the case, the scandal is greater. And it is quite clear that to say that a lawyer has "no more law than a goose " is actionable; but to say of a man that he has as much sense as a pig is not actionable, because the pig may be a learned pig, and possess a deal of sense; and there is no imputation that the man has not more

sense than the pig. To say of a man, " You enchanted my bull," or " Thou art a witch," or that a person " bewitched my husband to death," has been decided as actionable; but it is still unsettled whether an action can be brought against a man for saying to or of a young lady, " You enchanted me," or " She enchanted me; " or, as the case may be, " She enchanted my brother, my dog," etc.; or "She's a bewitching creature;" or, to put the more exact point, " She has quite be witched poor Charlie." On the other hand, you may, if you please, say of another that " he is a great rogue, and deserves to be hanged as well as G., who was hanged at Newgate; " because this is a mere expression of opinion, and perhaps you might think that "G." did not deserve hang ing. . . . Judge Twisden said he recollected a case in which a shoemaker brought an ac tion against a man for saying he was a cob bler; and this was held good in Chief-Justice Glyn's time. One said of a Justice of the Peace, "He is a logger-headed, a slouchheaded, and a burden-bellied hound." These words were held not actionable. But if I say of another that he smells of brimstone, I am guilty of slander and must abide the consequences. Some humorous cases have arisen out of wills and testaments. Lord Chancellor Eldon held that the trust of real and personal estate for the purpose of establishing a bo tanical garden was void, because the testator expressed in his will a hope that it would be for the public benefit (these words bring ing it within the statute of mortmain). A bequest for the dissemination of Baxter's "Call to the Unconverted " was declared void. So was a legacy given to a person on condi tion of his drinking up all the water in the sea, as it was solemnly decided that the con dition could not be performed. Some of our old law books abound in ex traordinary actions, brought for what would A Dip into my Law Books.


bystanders. When the executioners are absent they frequently hang themselves I" In a very old volume of the Reporters it appears that in the country, when women passed cattle, it was usual to say, " God bless them; " otherwise the women were taken for witches. If " A " have a right of entry into his house he ought to have a common entrance at the usual door, and shall not be put to enter at a hole or back door, or down a chimney. Littleton says that in an appeal of death the defendant waged battle with the plaintiff, and was slain on the field; yet judgment was given that he should be hanged, which the judges said was altogether neces sary, for otherwise the lord of the manor would lose his escheat. It was formerly held to be the law that a husband had a right to beat his wife, and call her any names he pleased A man is justified in the battery of another in defence of his wife; for, says the law, she is his prop erty, which is rather an ungallant reason. If a man lift up his stick at mc, I am not bound to wait until he strikes; but I may lay on before in my own defence, peradventure, says the reporter, I may come too late afterwards. A man who has committed an offence may plead not guilty, and yet tell no lie; for by the law no man is bound to ac cuse himself — so that when I say I am not guilty, the meaning is as if I should say, " I am not so guilty as to tell you. If you will "We were to attend at the tryal in our scarlet bring me to trial, and have me punished for robes, and the Chief Judges with their collars of S. S. which I did accordingly; but my Lord what you lay to my charge, prove it against Bridgeman was absent, being suddenly taken with me." Sir William Fish was bound by obligation gout; the Chief Baron had not his collar of S. S. to pay on such a day, in Gray's Inn, fifty having left it behind him in the country; but we were all in scarlet; but nobody had a collar of pounds generally, without saying of money; and therefore upon the day, when the gentle S. S. but myself for the reasons aforesaid." men of the Inn were at supper, Sir William But as an instance of simplicity, the fol came in and tendered fifty pound weight of lowing extract from an old continental work, stone. This was adjudged no tender. Libra not a law book, defies competition. Says the signifies " weight; " yet, says Plowden, if one writer : — is bound in ^50 and forfeits his bond, he "The English are not dragged to the phce of must pay money, and not lead and the like. Lord Ellenborough refused to try an action execution, but run there themselves, and die laugh ing and singing, cracking jokes, and quizzing the upon a wager on a cock-fight, observing it

now be considered most trivial and ridiculous causes of complaint. There is one case, in the reign of Henry IV., of a man who brought an action against a cook for selling him a fowl which gave him a sick stomach, in which action he recovered twenty shillings' damages. In some of these cases it is difficult to say whether the reader is more amused with the trivial nature of the complaint or the nicety which the court required in the pleadings. There is a case in which the guardian of an infant brought action against a barber for cutting off the child's hair. The defence made was, that the child was more than six teen years of age, and had agreed with him, the defendant, for sixpence, that he should have license to take two ounces of hair. This plea was adjudged bad in point of law, be cause an infant could not give a license, though she might agree with the barber to be trimmed. The solemn simplicity with which trifles are recorded in the older reporters cannot fail often to amuse the reader. When all the judges in England were summoned to attend the trial of Lord Morley before his peers for murder, they met to consider the points of law likely to arise in that most important case; their resolutions are given by Kelyng, among which the following is recorded with the utmost gravity : — 236|The Green Bag.|}}

was impossible to be engaged in ludicrous inquiries of this sort consistently with that dignity which it was essential a court of jus tice should observe. On the other hand, an action was maintainable on a wager of a " rump and dozen " whether the plaintiff was older than the defendant. Mr. Sergeant Vaughan urged that instead of any public prejudice arising from the thing betted, it was for the public benefit to promote good humor and conviviality. Lord Mansfield, indeed, said, " I do not, judicially, know the mean ing of a ' rump and dozen; ' " but Mr. Justice Heath observed that they knew very well, privately, that a rump and dozen was what the witnesses had stated, namely, a good din

ner and wine; "in which," said the learned judge, " I can discover no illegality." It was a long time ago decided that a parishioner is not bound to come to his own parish church, provided he goes to another; and that a man cannot have two Christian names. A man cannot bring an action against him self. We might go on to an interminable length with our pickings, but we must stop, and give only one more; and that is, if a man, for a certain sum of money, agree to do a thing which is impossible, and fails to do it, an action may be brought against him for the non-performance. — Dublin University Mag azine.


(54 N. Y. 569.)

By Irving Browne. [ The keeping of a small quantity ofpetroleum in a house, for medicinalpurposes only, is not a " storing" within the prohibition of an insurance policy..] pEFENDANTS had an office grand Which cost a heavy rent, Accountants there on every hand, A portly president Who was an elder in the church, And asked a grace each day, Nor left his neighbor in the lurch Save in a business way; Who with benevolence brimmed o'er, Who never stooped to sport, Who never drank, and never swore Except to the report. This company was much more wise Than other companies, For they avowed they would despise All technicalities; The Petroleum Ointment Case. Their policies in print professed How deeply they were smitten With a fraternal interest For all their underwritten; They hounded Williams up and down To take a trifling risk, At every point about the town He met their agent brisk : "Some night would come a fire immense, And uninsured he 'd rue it, And if he minded the expense They would pay him to do it." And so they gave assurance sound Against all loss by fire On goods of plaintiff they were bound Till twelve months should expire. But if he " stored " petroleum, They cunningly provide • He 'd forfeit all the premium And lose his claim beside. Now, when the Civil War broke out, Like a good man and true, Williams did not stay home and spout, But donned the sacred blue. He fought until a rebel wound Subdued his zeal spontaneous, And sent him from the battle-ground With a disease cutaneous. And when by scratching he was flayed, By frequent imposition Of crude petroleum he allayed The heat of his condition. A little of this stuff he'd keep, But not enough to hurt, And when at night he could n't sleep He 'd saturate his shirt. One night an accidental fire His house and goods did spoil, But unless Sickels is a liar, It spared both shirt and oil.

237 238

|The Green Bag.|}}

The company refused to pay, Because of this small hoard Of crude petroleum, which, said they, He in his house had "stored." So Hand and Parsons came to court, And wrangled pro and con; The cause made much judicial sport When it was sat upon. Said one of the commissioners, "Suppose he drank the same, Or introduced it in his drawers, — How would he be to blame? It was but medicine he took, Outside instead of in, And 'storing,' this in any book Hath ne'er decided been." So Reynolds quoth, and Earl concurred, And Johnson, Lott, and Dwight Looked solemn as Minerva's bird; But Reynolds winked outright. The company, very low in mind. Crestfallen sneaked away, And little comfort could they find In the dissent of Gray. Good men rejoice whene'er they read This rare decision, which Is, — patriots for their land may bleed, But are not bound to itch.

Green Bag Vol. 1 p. 238 tailpiece.jpg
The Yale Law School.


THE YALE LAW SCHOOL. Bv Leonard M. Daggett. ' I ""HE Law School at Litchfield, the most celebrated of the early schools lately described in this journal, was discontinued in 1833. The approximate coincidence, in time, of this event with the establishment of the Yale School is probably the cause of a prevalent notion that the two schools had some formal connection, or that the Yale School succeeded the older institution. It is doubtless true that the dissolution of the one was a material help in the development of the other, and certainly true that through the agency of the Yale School, Connecticut's educators are still contributing their full share

to the scholarship and intelligence of the na tion's lawyers. But except for the inheri tance of a few books, the succession is one of responsibility only, the connection limited to the accidents of situation. The descent of the Yale School can be directly traced to one which flourished in New Haven for many years before the dissolution of the Litchfield School. Mr. Seth P. Staples, a graduate of Yale College in 1797, and doubtless now remem bered by some of the older members of the New York Bar as a leading commercial and patent lawyer in that city, was in the ear 240|The Green Bag.|}}

liest years of this century settled in New Haven. Here he enjoyed an active prac tice, and had an unusually valuable working library. As the same considerations which now influence a student in the choice of an office in which to "read" law must have been equally decisive in those days, it is not sur prising to hear that Mr. Staples soon had several young men studying in his office. He seems to have soon found it advisable to adopt a regular system of instruction. Among those whose studies he directed was Samuel J. Hitchcock, a young graduate of the college, who held a tutorship there while he was reading law. Mr. Hitchcock, a care ful and thorough student, was invited in 1822. by Mr. Staples, to assist him in the work of instruction. In 1824 Mr. Staples removed to New York to engage in practice, leaving his school, which must have become by this time an institution of importance, in the charge of Mr. Hitchcock and Judge Daggett. The connection of the school with the college is reckoned from that year because then for the first time the names of the pu pils were published in the College Catalogue. Two years later, in 1826, the connection was made more formal by the appointment of Judge Daggett, already at the head of the school, to be Kent Professor of Law in Yale College, upon a foundation established by the friends of Chancellor Kent. These two gen tlemen, Judge Daggett and Judge Hitchcock, continued in charge of the school for over twenty years, and under their successful man agement it grew prosperous and celebrated. Judge Hitchcock was not a public man. The only important public office held by him was that of Judge of the New Haven County Court. From the time of his first connection with the school until his death, in 1845, he devoted himself to the work of instruction, an occupation suited to his scholarly tastes and retiring disposition. A methodical and exact man, he never failed to make his students feel the value of dili gent and accurate scholarship in the law, or

to surprise and delight them by his intimacy with a wide field of reading, from which he drew many of his illustrations. He ranked with the most successful legal instructors of his time, and was frequently compared with Story and Green leaf by those who had lis tened to them all. The acknowledged abil ity of Judge Hitchcock and the eminence of Judge Daggett brought large numbers of stu dents to the school. It is, perhaps, not out of place to note a curious accident by which Judge Hitchcock's instruction has continued even after his death. His bequest in trust "for the support of indigent, pious young men preparing for the ministry in New Haven, Conn.," was adjudged by the Su preme Court void for uncertainty, and is each year cited in the class-room in illus tration of the familiar rule. Judge Daggett was considerably older than his associate, and came to his work of instruc tion with a broader and more active practi cal experience if with less scholarship. He held a ready pen, and had been the author of a number of political pamphlets of great local celebrity, in which force of argument was well set off by powers of sarcasm and invective, reminding one of Swift. The few years immediately preceding his connection with the school had been devoted exclu sively to private practice, but previously he had for twenty-five years almost continuously held office. He had been elected several times to the State Assembly, being for three years Speaker of the House, had been for eleven years at different times a member of the " Governor's Council," a body with func tions very similar to those now exercised by the State Senate and the Supreme Court of Errors. He had also been United States Senator from 1813 to 1819, being one of the last of the old-time federalists sent to Wash ington. At the bar he was an accomplished and celebrated "pleader," and one of the most successful practitioners of the State. Dur ing his professorship he sat for six years as an Associate Justice of the Supreme Court, and for two years as its Chief-Justice, retir The Yale Law School.


Mr. Henry White, an able and well-known ing only upon reaching the age set by the constitution for the retirement of judges. real-estate and probate lawyer, assisted in the school for about two years. Professor His lectures upon Constitutional Law, de livered before both the Law School and the Isaac H. Townsend was connected with the seniors of the college, were made especially school about four years, was appointed pro interesting by the recollections of a long pub fessor in 1846, but died early the follow lic service and familiarity with the practical ing year at the age of forty-four. He was application of constitutional principles, and peculiarly well fitted for such work, and also by his intimate fellowship with men of by his untimely death the school lost an

national fame and in instructor of much fluence. Old federal promise. At this time the ist that he was, he school had become undoubtedly shaped fully identified with the views of many a future lawyer toward the College, or Uni versity as it is now aconservative national policy. During the called. The connec last few years of his tion, as said before, connection with the dates from the pub school he took little lication of the names active part in its work of the students in the on account of his ex College Catalogue in treme age. He died 1 824, and the appoint ment of Judge Dag in 185 r, at the age of eighty-six. gett in 1826. Degrees Between 1842 and were conferred upon 1847 three professors graduates for the first served for short peri time in 1843, and in ods. One of these 1846 the school had was Judge William L. been formally consti Storrs, who was at the tuted, by vote of the time of his appoint Corporation of Yale ment a judge of the Su College, as one of its DAVID DAGGETT. preme Court of Errors, co-ordinate branches. and later its ChiefWhen it became Justice, and had been in the State Assem necessary in 1847 to find new instructors, the bly and National Congress. A scholarly and choice fell upon Hon. Clark Bissell and Mr. brilliant lawyer, he became one of Connec Henry Dutton. The former was at the time ticut's most distinguished judges, and was Governor of the State, and had been for ten unfortunately compelled to relinquish his years a judge of the Supreme Court of Errors. professorship because of its interference with He discharged his duties in the school with his judicial duties. During the present year great ability until 1855, when he retired from some members of his family 1 have founded active life. Governor Dutton is still well in the school a lectureship which will bear remembered, especially by his old pupils, for his name. his brilliancy and versatility and his warm kindly disposition. At the time of his ap 1 The daughters of the late Lucius F. Robinson, of Hart ford, a nephew of the Chief-Justice ami a graduate of the pointment he already had considerable ex perience in public life, and was known as school in the Class of 1845. 242|The Green Bag.|}}

one of the leaders of the State bar. While connected with the school he served one term as Governor of the State and five years as a judge of the Supreme Court of Errors. He was three times selected by the legisla ture a commissioner for the revision and compilation of the State Statutes, and him self thoroughly revised Swift's Digest of the of Connecticut. Owing to his more active professional duties, he was unable to devote as much of his time to the school and its work as Judge Hitchcock had done, but was assisted, after the retirement of Gov ernor Bissell, until 1865 by Judge Thomas B. Osborne. Judge Osborne received his legal educa tion in Mr. Staples' school, and had been a judge of the County Court and served two terms in Congress. As a lawyer he had directed his attention mainly to office prac tice and the execution of private trusts. As an instructor he was able and conscientious, careful in statement and conservative in the spirit of his teachings. He resigned his position in 1865, and died in 1869, the same year in which Governor Dutton's death occurred. This closes the first stage of the history of the school. It had educated about a thou sand men, many of whom had attained pro fessional eminence. Among them may be named Justices Davis and Strong of the United States Supreme Court, Judge Julius Rockwell of Massachusetts, Judges Seward Barculo and Alexander S. Johnson of New York, Judge H. B. Brown of Michigan, Chief-Justice Sheldon of Illinois, Governor Polk of Missouri, Gov. William Warner Hoppin of Rhode Island, Hon. Alphonso Taft of Cincinnati, Hon. William H. Hunt of Louisiana, Hon. Edward J. Phelps of Ver mont, Chief-Justice Smith of North Caro lina, Chief-Justice Watkins of Arkansas, Attorney-General Edwards Pierrepont, Gov ernors Hubbard, Ingersoll, and Harrison, and Judges Pardee, Loom is, Phelps, and Shipman of Connecticut, Chief-Justice Brown of Georgia, Chief-Justice Alwater of Minnesota,

Judge Shiras of Iowa, and Professors Dwight of the Columbia Law School, Bicknell of the Indiana University Law School, and Booth of the Chicago Law School. The second period of the school's history begins in 1869, when, after one or two tem porary changes in the management, three prominent members of the local bar were selected by the Corporation to assume con trol. They were Hon. William C. Robinson, Simeon E. Baldwin, and Johnson T. Piatt, who are all of them still actively engaged in the work of the school. In 1 871 Hon. Francis Wayland was chosen Dean of the Law Faculty, which office he still holds, and since that time Professors William K. Townsend and Theodore S. Woolsey have been added to the Faculty. The history of the school for the twenty years which has elapsed since then, and its present character and posi tion, prove the selection of these gentlemen to have been peculiarly fortunate. The at tendance, which had been for a few years quite small, very soon became larger than ever before and has lately been rapidly in creasing. There are one hundred and six students in attendance at present. During this period several other gentle men have been connected with the school for varying periods of time as special lec turers. Prof. James Hadley, LL.D., de livered his valuable lectures introductory to Roman Law, which have been published since his death. Rev. Leonard Bacon, D.D., LL.D., the Nestor of American Congre gationalism, lectured on Ecclesiastical Law; Ex-President Woolsey on International Law; Judge Charles J. McCurdy on Life Insur ance; Hon. LaFayette S. Foster, LL.D. (by whose will the school was given $60,000 with which to endow a professorship), on Parliamentary Law and the Science of Leg islation; Chief-Justice Origen S. Seymour on Code Pleading; Frederick H. Betts of New York on Patents; Prof. James M. Hoppin, D.D., of New Haven on Forensic Oratory, and Dr. Francis Bacon on Medical Jurisprudence. These auxiliary courses, con The Yale Law School.


ducted by men of such eminence in those years as Minister of the United States to departments of knowledge, have been a most England, but resumes his work of instruc successful innovation, and are an established tion with the coming year. Hon. Francis VVayland, LL.D., Dean of feature of the school. Among the special the Law Faculty, is a man of very wide ac lecturers and instructors who are now asso quaintance among prominent men, having ciated with the regular Faculty are the fol lowing : Hon. Edward J. Phelps, LL.D., held many other positions of honor, and been and Hon. Henry Stoddard, lately one of the prominently connected with many liberal Judges of the Superior Court of the State,

and charitable movements. He graduated at Brown University on the Law of Evi in 1846, and studied dence; Hon. William his profession at the E. Simonds, a wellHarvard Law School, known and successful commencing his prac patent lawyer, on Pa tice at Worcester, tent Law; Hon. Mor Mass. Soon after his ris W. Seymour on removal to New Haven Corporations; Mark he was elected Judge Bailey on Elocution; ' of Probate for the New M. Dwight Collier, on Haven District, was af Attachments, Judg terwards Lieutenantments, Executions; Thomas Thacher on Governor of the State with Gov. Marshall Corporate Trusts; James M. Townsend, Jewell, is now Presi Jr., on the Transfer dent of the Board of of Monetary Securi Directors of the State ties; Roger Foster Prison at Wetherson Federal Jurispru field, and an active dence; George M. and prominent mem Sharp, of the Mary ber of the National land Bar, for several Prison Reform Asso years Legal Editor of ciation, being Presi the " Baltimore Under dent also of the Con necWILLIAM L. STORRS writer," on Insurance. ticut Prison Society. Of these gentlemen He was for several Mr. Simonds resides in Hartford, Mr. Sey years President of the American Social mour in Bridgeport, Mr. Sharp in Baltimore, Science Association. The executive duties and Messrs. Collier, Thacher, Townsend, and of his position as head of the Faculty re Foster in New York City. Except in the quire his constant attention; and although cases of Professor Phelps and Mr. Bailey, he formerly taught the classes in the Law none of those named are otherwise connected of Evidence, he now takes no part in the with the Faculty of the University, the list work of instruction except to deliver two not including those members of the Univer courses of lectures upon English Consti sity Faculty who also deliver lectures in the tutional Law and International Law. He special and graduate courses of the Law also presides at the meetings of the Moot School. The President of the University is Courts. During the years that he has been ex officio one of the Law School Faculty. at the head of the school, its increased Professor Phelps has been absent for four prosperity and the uniformity of its develop244|The Green Bag.|}}

ment have proved the efficiency of his man agement. Hon. William C. Robinson, LL.D., Pro fessor of Elementary and Criminal Law and the Law of Real Property, is the senior member of the Faculty. He was graduated at Dartmouth College in 1854, and is a man of broad education and large experience. For several years he has withdrawn from active practice, and devoted his time to pri vate research and the duties of his pro fessorship. He is the author of Robinson's Elementary Law, — as orderly, concise, and accurate a guide to the study of the Com mon Law as can be desired, — and has for several years been engaged in preparing an exhaustive work on Patent Law which has just been completed for publication. A remarkably intimate knowledge of the Com mon Law and its history, a quick perception of the real difficulties of the student, and a clear, logical method of exposition make his instruction unusually successful. • In such a difficult subject as the Law of Real Property its value is especially felt. Professor Robin son devotes his time more exclusively to the work of instruction than any other member of the Faculty. Simeon E. Baldwin, M.A., Professor of Constitutional and Mercantile Law, Cor porations, and Wills, graduated from Yale College in 1861, and studied his profession partly at the Yale and partly at the Harvard Law School. He is descended from Roger Sherman, and comes of a family of lawyers who have for a century been distinguished for their scholarship and professional ability. As a constitutional and corporation lawyer he has a wide reputation and a large and lucrative practice, having been engaged in many important cases in the highest courts of the State and United States. He has also a large estate practice. He is President of the New Haven Colony Historical Society, has published a complete digest of the State Reports, was one of the commission chosen by the State Legislature for the revision of the Statutes concerning Education in 1873,

of that to revise the General Statutes in 1873, of that to prepare a Practice Act to introduce Code Pleading in 1878, and of that to revise the State system of Taxation in 1885. He has been for several years chair man of the committee on Jurisprudence and Law Reform of the American Bar Associa tion, and has prepared a number of reports and papers which appear in its publications. His activity is not limited to matters of a professional character, but extends- to those of general and local interest. In whatever he undertakes his work is characterized by method, industry, and accuracy, and never fails of a definite result. At the bar his large experience, skill in practice, and fami liarity with the technique of the law make him an especially formidable antagonist in any case. The same general features char acterize his work as an instructor, to which he brings an intimate knowledge of con stitutional history and gives the results of careful personal investigation. Every mo ment of his hour is fully utilized, every ques tion and statement important. The exercise is made a guide for future private study, the value of which the students are not slow in realizing and in proving by faithful work. Johnson T. Piatt, M.A., Professor of Gen eral Jurisprudence, Torts, and Equity, is a scholar in the philosophy of the law, thor oughly equipped with material for his work. He was graduated at the Harvard Law School in 1865, was Corporation Counsel of the City of New Haven in 1874, and for many years has been one of the two standing Masters in Chancery appointed by the United States Circuit Court for the District of Con necticut. Though in active practice and frequently engaged in important cases, he is a diligent and enthusiastic student. Two years ago he was the leading counsel for the defence in the celebrated " Boycott " case, which was so energetically fought in the Connecticut Supreme Court, and in which the law of criminal conspiracies, at that time a matter of critical importance, was exhaust ively discussed. Professor Piatt is one of The Yale Law School.


those few who have found in the law more at the Yale Law School in 1876, after pur than a means of livelihood and more than suing special studies in International Law for a year or two abroad. Although his a technical science, — who find in its liter ature and the lives of its leaders a means of special branch is an honor study, not being culture and of recreation. His courses in required of any but candidates for a high rank, the exercises are well attended and fol Equity and Torts are made especially inter esting by his careful citations of cases, which lowed with interest. Professor Woolsey aims to give particular attention to questions of are always appropriate and instructive. William K. Townsend, D.C.L., " Edward present interest in International relations.

The Faculty is as a J. Phelps Professor" whole, as well as indi of Contracts and Ad vidually, peculiarly ef miralty Jurisprudence, ficient. The division a graduate of Yale in of labor is such that the Class of 1871, re each professor is able ceived his legal educa to employ himself in tion in the Yale School, those lines for which taking his degree of he is by taste and abil D.C.L. in 1880, some ity especially qualified. time after admission Whatever the emi to the bar. He is an nence of any of its unusually enthusiastic members in public or and energetic man, a political life, they have thoroughly practical not been chosen on and successful lawyer that account, but for and instructor. At their legal ability and present he is Corpo scholarship. But their ration Counsel of the success is greater than City of New Haven. can be accounted for Professor Townsend, by even legal ability whose subjects are and scholarship, and such as appeal more its reason is to be strongly than many of found in the personal the others to the in FRANCIS WAYLAND. enthusiasm which they terest of the students, bring to their work; takes great pains to emphasize the more practical points and to in fact, the distinctive peculiarity of the develop each topic fully by the citation and school is the generous disposition of the discussion of leading and recent cases, and professors, not only in the routine work, succeeds to a remarkable degree, not only but also in friendly aid and suggestion out in guiding his classes to the knowledge of side the class-room. facts, but also in arousing among all the Since the gentlemen who are now in students a hearty enthusiasm for their charge of the school assumed its manage professional work. ment, and through their efforts, two impor Theodore S. Woolsey, M.A., Professor of tant changes have been made by which its International Law, a son of ex-President present location and its library have been Woolsey, is the only member of the Faculty gained. The school occupies the whole upper who has not been in active practice. He floor of the County Court-house, a handsome was graduated at Yale College in 1872, and building completed in 1873 at a cost of 33 246

The -Green Bag.

$134,000, facing upon the Green, or public square. By arrangement with the county authorities that floor was planned with spe cial reference to such use. The rooms are large, high, and well-lighted, and in most respects satisfactory, though it is not un likely that the further expansion of the school will before long necessitate a change. But the present situation has been and still is very fortunate and appropriate. On the lower floors the County Court of Common Pleas and the Superior Court are almost continually in session, where all the impor tant civil causes in the county are tried. The Supreme Court of Errors holds two terms each year in the rooms usually occu pied by the Superior Court. In addition to these courts, in another portion of the same building are held two terms of the Superior Court and more frequent sessions of the Court of Common Pleas for the trial of crim inal causes.- It was in this building that the famous Hayden and Malley murder cases were tried. These exceptional opportunities for observing the actual conduct of trials of all kinds are of very great practical impor tance. The students take a keen interest in some of the trials and arguments, especially when their own instructors are engaged as counsel. The school owes its present library also largely to the personal efforts of the present Faculty. Until about the year 1845 it is probable that the students were principally dependent upon the library of Judge Hitch cock, which they used freely. Upon his death it was purchased for the use of the school by the proceeds of a subscription and an appropriation from the college funds. This, with several hundred books from Judge Daggett's library and some additions by purchase, made a fair collection which was well maintained until about the time of Gov ernor Bissell's death. From that date few books were bought until 1869, when some of the leading sets were filled up by the liber ality of Hon. William Walter Phelps, of New Jersey, and soon afterwards, through

the efforts of Professor Wayland, a sub scription of $20,000 was raised. This was applied to the purchase of the necessary reports and books, in the selection and arrangement of which much is due to Pro fessor Piatt's aid. Since that time Hon. James E. English, of New Haven, has gen erously given a permanent fund of $10,000 for its maintenance. Owing to these and other private contributions, the library is now well equipped, containing all the English and American Reports and standard treatises and periodicals, also a large and valuable collection of books for reference in the study of both American and English constitutional and political history and of Roman Law; in all, about nine thousand volumes. The li brary of the County Bar Association on the floor below that occupied by the school con tains a complete set of standard English and American legal treatises. The two libraries are used in common by the students and the members of the association, and are man aged in conjunction with each other so that there may be as little duplication as possible, — an arrangement which is mutually advan tageous. The books are directly accessible to the students without the intervention of the Librarian, but cannot be taken from the rooms except for use in court. The libraries of the University are also open to members of the school. With this outline of the history of the school and general view of its Faculty and equipment, a discussion of its organization and methods will be better understood. The requirements for admission to the under graduate course are the exhibition of a degree from some collegiate institution or of a certifi cate that the student has passed a " Regents' Examination for Law Students " in New York, or, if the applicant can show neither degree nor certificate, he must pass an examination upon the outlines of English and American history and the text of the Constitution of the United States. Admis sion to the second year by those who have not been through the first is granted upon The Yale Law School. passing the same examination as is required of regular students and satisfying strict re quirements insuring the same preparation. Upon the completion of the second year, and after thorough examination, the degree of Bachelor of Laws (LL.B) is given. The Faculty believe that more than two years' study should be required before the bachlor's degree is conferred, but have felt that it is impracticable to insist upon such a requirement at the present time. There is no school in which such a degree cannot be obtained after two years' attendance, though there are several in which the required course extends over three years, in one at least of which the bachelor's degree is conferred after two years' residence, and that of Matter of Arts added for those who complete the full course. The policy of the Faculty of the Yale School has been to insist upon a high standard of work for two years, and give the opportunity for further study in the graduate courses. Following is the curriculum of the regular undergraduate and graduate courses : —

UNDERGRADUATE COURSE. Junior Year. Judge Stoddard : Recitations — Evidence. Professor Wayland : Lectures — English Consti tutional Law, International Law. Professor Robinson : Recitations — Elementary Law, Pleading. Professor Baldwin: Recitations — Mercantile Law. Lectures — Nature and History of American I,aw, Wills. Professor Plait : Recitations — General Juris prudence, Torts. Lectures — Jurisprudence. Professor Townsf.nd : Recitations — Contracts. Professor Woolsey : Recitations — International Law. Mr. Bailey: Lectures — Forensic Elocution. Senior Year. Professor Robinson: Recitations — Real Property, Criminal Law. Lectures — Estates, Convey ancing, Forensic Oratory.


Professor Baldwin: Recitations — Mercantile Law, Corporations. Lectures — American Con stitutional Law, Public Corporations, Wills or Roman Law, Practice. Professor Plait: Recitations — Equity. Professor Townsend : Recitations — Contracts. Professor Woolsey : Lectures — International Law. Mr. Seymour : Lectures — Private Corporations. Mr. Simonds : Lectures — Patents. Mr. Collier: Lectures — Attachments, Judgments, and Executions. Mr. Thacher : Lectures — Corporate Trusts. Mr. J. M. Townsend : Lectures — Transfer of Monetary Securities. Mr. Foster : Lectures — Federal Jurisprudence. Mr. Sharp : Lectures — Insurance. GRADUATE COURSE. First Year. Professor Robinson : Recitations — Patents. Professor Baldwin : Recitations — Railroad Law, Practice in United States Courts. Lectures — American Constitutional Law. Professor Platt : Recitations — Municipal Cor porations, Statute I^aw. Professor Townsend : Recitations — Admiralty Law, Sales. Professor Woolsey : Lectures — International Law. Professor Sumner : Lectures — Political History and Science. Professor A. M. Wheeler : Lectures — English Constitutional History. Professor Hadley : Lectures — Railway Manage ment. Ur. Raynoi.ds : Lectures — Roman Law. Second Year. Professor Robinson : Lectures — Canon Law. Professor Baldwin : Recitations — Comparative Jurisprudence, Code Napoleon, Conflict of Laws. Professor Platt : Recitations — General Juris prudence. Professor Wheeler: Lectures — English Con stitutional Law. Professor Sumner : Lectures — Political and Social Science. Mr. A. S. Wheeler: Recitations — Roman Law. Professor Hadley : Lectures — Economics of Transportation. 248|The Green Bag.|}}

In addition to the regular courses there are two special courses arranged, the first of which occupies one year, and is a selection of those studies of the regular course which deal with commercial relations rather than with technical legal science. The second of the special courses occupies two years, and includes the more abstract studies combined with some of the studies of what is termed the

Political Science Course of the Univer sity, of which a word will be said later. This special course is not intended as a prepara tion for practical pro fessional or business life, but to give a bet ter understanding of politics and govern ment; and upon its completion the student may apply for the de gree of Bachelor of Civil Law (K.C.L.) These courses are elas tic, capable of varia tion according to the preferences of the stu dent subject to the ap proval of the Faculty. Within a few years a new course of lec liDWARD tures and reading has been arranged by the University authorities for graduate students, known as the course of Political and Social Science. It covers two years, and is con ducted by such eminent men as Professors William G. Sumner, William H. Brewer, and Arthur T. Hadley, with the assistance of other younger lecturers, all of them enthusi astic students in that department of science. The topics and reading required are such as commend themselves to a law student, espe cially if he has any inclination toward public life, or an active interest in politics. Some of the lectures, as can be seen by the cur-

riculum, are included in the graduate courses of the Law School; but whether falling within the requirements of his course or not, the student may very profitably select a portion of that course, and pursue it in connection with his legal studies. An attempt was made about the year 1840 to organize a class for advanced studies in Jurisprudence : but although a course of lec tures was prepared, the experiment failed because a class of twenty could not be formed. But the pres ent graduate depart ment of the Law School is not an ex periment; it was or ganized in 1876, and its establishment and conduct are one of the notable accomplish ments of the present, management. Among those who have thus far studied in it are graduates of twelve different law schools; and four of them have since become Profes sors of Law. There are two of these regular courses J. PHELPS. of graduate instruc tion, of which the out line may be seen in the curriculum already given. The first of them is open to any one who has taken the degree of LL.B. at this or another Law School, and after a year's course the student may apply for the degree of Master of Laws (M.L.). The topics are chosen for their general interest and as an introduction to the higher grades of practice, although it is likely that the average student, looking at its more practical features, would choose the course because it deals largely with practice in the United States Courts, and subjects of which those courts have The Yale Law School. jurisdiction, including Patent and Admiralty Law. The second of these graduate courses is only available to those who have suc cessfully completed their studies for the de gree of Master of Laws, and have pursued a course of Roman Law. A good knowledge of Latin and of either French or German is also an essential requirement. The Faculty aim to make the completion of this course a

test of real attainments in legal scholarship, insisting upon an un usual standard of abil ity and industry, and never giving the de gree unless the candi date has proved him self especially worthy of the distinction. The degree conferred is that of Doctor of Civil Laws (D.C.L.). It is believed that there is no other Law School in the country which offers a fourth year of study, or which gives this degree regularly in course. There are certainly no better opportunities offered elsewhere for obtain ing a finished legal WILLIAM C. education. The special and graduate courses, however, are but auxiliary to the undergraduate course, which gives the necessary preparation to practice, and by which we must measure the usefulness of the school. In considering and comparing methods of instruction, we shall therefore have the undergraduate course especially in mind, and for convenience will notice in their order the general arrangement of the curriculum, the character of the work in the class-room and of that which is required out side of the class-room. The burden of the work is borne by four


of the Faculty, Professors Robinson, Bald win, Piatt, and Townsend, each of them de voting a certain number of hours a week to each class regularly during the college year. A glance at the curriculum will show that the principal subjects of study in the first year are Elementary Law, Pleading, Torts, Contracts, and Mercantile Law, which are intended to give a general classification of the law, and a knowl edge of its fundamen tal principles. Under Contracts, those subjects are selected at first which are of gen eral application, such as Agency, The Stat ute of Limitations, and the Statute of Frauds. Evidence and the Law of Wills, to which con siderable time is de voted, are especially valuable as familiariz ing the student with the general rules of construction. The study of the law of Evi dence, particularly, not only is an excellent training in the logic of the law, but also gives to the beginner an idea ROBINSON. of its motives or spirit, and aids in the de velopment of a critical and legal habit of mind. The accompanying courses on In ternational and Constitutional Law are not so evidently appropriate as first-year studies, but serve to open up to the student a wider view of his chosen science. In the second year the separation of topics is carried much further, and the more important divisions ex haustively studied, many of them being in cluded in the curriculum under the general term "Contracts." During the whole course practical work is required wherever possible, as in the drawing of wills and contracts, 2^0

|The Green Bag.|}}


and in pleading and conveyancing, especially the last two. An important feature of the practical work is the trial of cases by moot courts. These are trials held each week, always presided over by one of the profes sors as judge, in which the students act as counsel, thoroughly preparing the case for trial and conducting the argument, whether it be on an issue of law to the court alone,

or one of fact to a jury composed of their fel low-students. Within the last two years a new interest has been aroused in these moot courts by carrying them a step farther. With the assistance of one of the profes sors, the groundwork of actual fact for a case is carefully laid and counsel chosen for the parties. The counsel then bring the action by the proper pleadings, and prepare the case for trial. The witnesses are exam ined and cross-exam ined before the judge and jury, questions of evidence raised and SIMEON E. argued, depositions taken and read, and everything made to conform as nearly as possible to the conduct of an actual trial, — and the event watched with intense inter est. The two or three cases which have so far been conducted in this way have each necessitated two or more sessions of the court. Their value is proved beyond ques tion by the interest and enthusiasm of the counsel and of the other students. Lately a more informal court for practice in the preparation of pleadings has been tried with success. Judges are appointed in rotation from among the students, to whom counsel

bring their cases by appropriate pleadings, and argue the questions in pleading thus raised, and from whose decisions an appeal lies to the professor. In addition to the work thus far described, and which is a part of the regular course upon which examinations are based, there are voluntary organizations among the stu dents which carry such work still further. and which may prop erly be noticed in this connection. The three "Quiz-clubs " of the Junior Class are un der the indirect super vision of the Faculty, the Assistant Libra rian, a recent graduate of the school, repre senting them at all the meetings and aid ing the members in the choice and discussion of topics. But there is no interference with the freedom of their formation, so that the groups may be made up of men who will be congenial and work well together. The clubs of the Senior Class, of which there BALDWIN. are now two, are inde pendent of any super vision. All these clubs meet in the rooms of the school, have the use of the library, and are given ready aid and encouragement in every way. Frequent moot-trials are held by them, in which those not engaged as counsel sit as judges and deliver opin ions, sometimes in writing. There is also a weekly debating society open to all the students of the school, and another select society which does work similar to that of the Quiz-clubs. This auxiliary work, inde pendent of the curriculum proper, besides being peculiarly beneficial to those who en The Yale Law School.


gage in it, is one of the surest indications the general principles of the matter in hand, of the earnest spirit of the school. and asking for their application to actual or The four professors who have been spoken hypothetical cases in illustration. They are of as doing the substantial part of the work encouraged to ask questions freely, in order follow in the main the system of oral recita that no points of obscurity or difficulty may tions upon reading which has been previ be left in doubt, and that the students may ously assigned. They deliver lectures in be trained to a careful criticism of their read cases where the nature of the subject or ing. This is never time wasted, for even special circumstances make treatment by re questions which seem foolish may indicate

a real difficulty and en citations inexpedient; able the instructor to but in such cases the meet it. This method student is required to is much more produc take down dictated ab tive of good results stracts or notes, and to than the lecture sys prepare himself upon tem; for however able them as he would from a lecturer may be, and a text-book. The however well prepared other lecture courses are some of them in his lecture, it cannot expansion of impor reach the student as tant subjects which effectively as an exer have been previously cise in which he is re quired to do some of taught by recitation, some of them discus the thinking, — where sions of the law in its to catch the connec higher and broader ap tion of one question plications and rela with another, as his tions. They give the companions are called opportunity of inves upon, and to find a tigating the subject in solution for the one detail if desired, but which may at any mo are rather designed to ment be asked of him supplement other work self, he must be con JOHNSON T. PLATT. so that a general and stantly on the alert. systematic view of the Whether earnest in whole field of legal science may be presented. their work or not, few students are so care This is a general statement of the relation less of their instructor's efforts or of their which the lecture courses bear to the reci own reputation for readiness and ability, as tation work, especially in the undergraduate to be found inattentive when so called upon. course. The point here to be emphasized is The question which requires thought gener this, that the basis of work is the recitation ally receives it, and makes the more perma system. nent impression; if not convinced by the It is intended that the student shall have, logic of the professor, there may and pro a*s nearly as practicable, the benefit of private bably will be discussion by the student with instruction from his professors. To this end his companions or private investigation. The the recitation is made quite informal. A advantage of this system is that, besides in large portion of the hour is usually spent in suring a careful study of the text, the student questioning the students individually upon is trained to ready analysis of facts and quick 252|The Green Bag.|}}

application of principles as well as the expres sion of conclusions in words; and further, it enlists in his service the pride of the naturally careless student who would dream through the exercise if there were no danger of being caught napping. The Faculty of this school have excellent opportunities for a comparison of results, and their experience has dictated the present system as the most efficient. In preparation for the recitations, the study of text-books or treatises is required, regu lar portions being assigned by the professors. The reading of many cases in the reports is not encouraged in the first part of the course, but later is required in connection with the other reading. Each professor is of course free to conduct his department according to his own judgment and the demands of the subject-matter; and cases are more freely used by one than by another. But it is the general policy of the school to postpone their study until a groundwork' has been laid for their proper comprehension. Some of the more excellent text-books, prepared by in structors of experience, in their arrangement and argument, represent years of constant effort to overcome effectually the difficulties encountered by every student. They are the forms through which we make other genera tions contribute to our advancement. The work of the graduate courses, in both general plan and detail, is arranged and con ducted upon these same principles, modified only in their application by the higher char acter of the studies and by the further con sideration that they are pursued from choice, and not because their study is a prerequisite to admission to the bar. A few students are compelled by their cir cumstances to serve in offices while studying law. Others do so from preference. But the best time for acquiring a familiarity with office-practice is after the close of a Law School course. A knowledge of a science, it would seem, should precede an inquiry into the art of its application. There is ample work in the prescribed course of a professional school properly organized, to

keep the student fully occupied; and if he has any spare time it might to advantage be devoted to the study of kindred liberal branches, as has already been suggested. Yet, although New Haven does not afford the same opportunities for office-practice that are offered by its neighbors, New York and Boston, it has now grown to be a city of over eighty thousand inhabitants, and there are many good law offices where the students of the school can and do find places if they so desire. One of the distinctive features of the school has always been the wide range of territory from which its students come. Every State and Territory is represented in its catalogues except Idaho, Nebraska, Utah, and Wyoming. The list also includes graduates of seventynine different collegiate institutions, as fol lows : Amherst, Athens, Bates. Bethany, Bowdoin, Blackburn, Brown, Chicago, Co lumbia, Cornell, Dartmouth, Drake, Emi nence, Emmetsburg, . Emory and Henry, Fisk, Georgetown, Hampden Siding, Har vard, Haverford, Hamilton, Illinois, Illinois Wesleyan, Iowa Wesleyan, Jefferson, Kansas College, Kings (Nova Scotia), Knox, Kenyon, Jolliet, Lafayette, Lebanon Valley, Lewisburg, Lincoln, Louisville, Marietta, Mass. Agricultural, Mercer, Middlebury, Mount Union, Mount St. Mary's, Nashville, Na tional Normal University, College of City of New York, Penn. Military Academy, Princeton, Pritchell School Institute, Roch ester, Rutgers, Santa Clara, St. Charles, St. Francis, St. Ignatius, St. James, St. John's, St. Joseph, Syracuse, Tokio, Trinity, Tuscumbia, Union, University of Alabama. Uni versity of Georgia, University of Michigan, University of New York, University of North Carolina, University of Ohio, University of Oregon, University of Pennsylvania. Uni versity of South Carolina, University of Ver mont, Vanderbilt, Washburn, Washington (Md.), Washington (Penn.), Western Reserve Wesleyan, Williams, Wooster, and Wurtzburg. Alumni of fifteen Law Schools have also studied either in the undergraduate The Yale Law School. courses or in the advanced courses in the graduate department, as follows : Chaddock, Chicago, Columbia, Columbian, Georgetown, Iowa State, National, Northwestern, Uni versity of Georgia, University of Louisville, University of Maryland, University of New York, University of Pennsylvania, University of Virginia, and Yale. A number of the Japanese students who

have in recent years come to this country to study law have taken the special and graduate courses in the Yale School. Some also have taken the undergraduate course. Among them are Kazuo Hatoyama, who is now at the head of the law department of Tokio University, Under-Secretary of Foreign Affairs, and head of the treatymaking power in the P^mpire of Japan; Sawada, who is a member of the House of Commons of the Japanese Parl