The Study of Legal Biography
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Webster was brought from Boston to argue the case against Horace Binney. John Marshall's decision—he being then dead—was cited as conclusive authority against the maintenance of the trust; Mr. Binney, through an ample knowledge of the history of chancery—a branch in which John Marshall was not particularly versed though he was strong on many sides—was able to satisfy Mr. Justice Story, not only of his own original error but of the error of Chief Justice Marshall in misreading a certain ancient precedent as to which there were four conflicting reports in the books, three of which were absolutely unreliable. I mention this as an instance, showing how sometimes, right at the very basis of a great department of jurisprudence, the wholesome growth of a doctrine may be checked and perhaps buried for a time, or utterly destroyed; and its rescue is due to some man having studied the very roots and foundations of the profession, and learned to estimate at their true worth and value the reporters who have transmitted the decisions of courts for our guidance.
Take, too, an illustration which occurs to me just at this moment. I never knew how it was that an English counsel who had been promoted from stuff to silk and had been made King's Counsel, could defend a prisoner at the bar against the Attorney-General, the true allegiance of the King's Counsel being to the Crown. I could find no explanation of it in the books. Nobody seemed to have considered the matter, until there happened to come into my possession a document addressed to Sir James Scarlett, afterwards Lord Abinger, the most successful verdict-getter England ever saw, which explained the whole matter. It was a petition on the part of Scarlett, one of the King's Counsel,
addressed to William the Fourth, reciting the fact that, as King's Counsel, he owed allegiance to the Crown, but as it was the desire of the Earl of Cadogan to have the services of Scarlett in his defense, he petitioned the monarch most graciously to dispense with his services so that he might serve the Earl, and His Majesty responded that he was so "graciously inclined." The King waived his right and expressly licensed his counsel to defend the prisoner, and the document, signed by William the Fourth and attested by Sir Robert Peel, I have in my possession. I have also the original recognizance, in the handwriting of John Marshall, holding Aaron Burr to bail on his trial for treason. I have letters written by the Justices of the Supreme Court of the United States, the early Justices I mean, like James Wilson of Pennsylvania and John Blair of Virginia, addressed to President Washington thanking him for the positions which have been conferred, and one addressed to the Governor of Virginia resigning the Chancellorship in order to take a seat among the federal judiciary. Without attempting to weary you with detail, or pointing out specific instances of this or the other aspect, I simply indicate that here is a branch of much neglected study which, if properly pursued—I mean earnestly and systematically pursued—so as to become saturated with a personal knowledge of these men, of how their work came into conflict with the work of other men, of how their ambitions clashed in the great questions that they argued, will invest the leading cases with an atmosphere which makes them living forces in the development of jurisprudence, instead of mere dead dry bones of the law buried in the charnel houses of books —mere annals or calendars of a bygone age.
Now, what can be done with regard
