i6o
The Green Bag,
ized action. Even Coke boasts that he has three hundred quotations from Virgil in his Institutes. William Wirt was a close student of literature, and his scholar, the famous Rufus Choate, made it a rule to let nothing in terfere with an hour every day to be given to such pursuits. Augustine Birrell is one of the acutest essayists on purely literary subjects, and he is a practising lawyer of note in England and has written possibly the one law book which can be read with actual pleas ure as a literary effort. Hannis Taylor of our own bar can also be mentioned. There is no doubt there is a danger in volved. Wirt before writing his famous Life of Patrick Henry consulted an eminent legal authority as to how such an attempt would be regarded and what effect it might have up on his business. Sir Walter Scott is an in stance in point of a man who actually gave up law and devoted himself to literature, as is Macaulay, and both with eminent success. Irving also started as a lawyer, and Montes quieu was a magistrate. In fact, there are numerous instances, the most striking per haps being that of a gentleman, known to us all, who lived some time ago in a little coun try town in England. This man seems to have .known a good deal of law, married ear ly, and was quite active,—in fact too much so in regard to poaching, and in consequence had to leave the country for London. There he first held horses, and went on the stage and wrote plays. What a fall was there! From being a lawyer, at least in the making, we find William Shakespeare de scend to literature,—unless the other the ory be correct that under the name of Ba con he was actually a lord chancellor, too. So that there is a danger of lawyers drifting into literature, and there is the other, possi bly greater danger, of the public's getting the erroneous impression that he is neglecting his profession. The true solution of the diffi culty is that suggested in the toast,—scholar ship should be a handmaiden and must
not rival in our affections Lady Law her self. There is a point of view from which scholarship is of the greatest importance to a lawyer. The tendency of the present day, fostered by encyclopedias and digests, is to make us a profession of case lawyers, or le gal mechanics. Cases are important, of course, and, if we do not have them and do not find others to convince the courts, we shall not be able to enjoy law, literature or life. It is necessary to treat our profession as an art. But there is more to law than this, for it is a science, and in some sense the greatest of all sciences. It studies and enforces the principles underly ing society itself, and regulates the relations and intercourse of all human beings. As such it can be studied in one of two ways,— either as a philosophy or as a history. Philo sophically treated we look with the greatest reverence to Austin and Bentham, and their tendency it is which creates and is embodied in codes. Valuable as this view is, it is large ly a priori and endeavors to start from funda mental principles. Particularly is this so with the Germans, even with my old instructor Windscheid, for the Germans are all influ enced by Kant or his successors, although they may think they are studying historically. The difficulty about the philosophical method is' that it is impossible to begin with a tabula rasa, for the present always grows out of the past; and therein is the value of the histori cal study. Law grows by assimilation of new materials on one side and sloughing off ob solete matter on the other. In the study of its development three* great names stand out. The first is our old friend William Blackstone, who first put the common law in one book and in readable shape, much to the dis gust and derision of some of his contempora ries. He showed us how. much of English law goes back to feudal times and feudal principles. The second we find on our side of the Atlantic, and perhaps sometimes we
