Ililllili ■^■.jfljiiil CIS" QJnrnpU ICatu ^rljonl ICtbrary Cornell University Library | KF 389.C75 An address to the graduates of the Law S 3 1924 018 811 764 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018811764 AN ADDRESS hmlt^ ^i l|i mtU 8ii!|i^i^l COLUMBIA COLLEGE, DELIVERED BY . ^X^ ALEXANDER W. BRADFORD, LL.D., AND P0BU8HED AT THE REftUEST OP THE BOARD OF TRUSTEES, NEW YORK: MAY, 18 62, GrENTLEMEN,- Geaduates of THE' tixyf SoHboL OF Columbia College : At the request of The Trustees of this Ven- erable Institution of Learning, it becomes my duty to address you a few words, belbre your parting. You have passed, under most favorable auspices, through the first and preparatory stage of the study of the Law ; and have reached an epoch of grave import, eventuating in a birth into a great and noble profession. To-day you are made associates not only with living Ad- vocates, and illustrious Judges, but with a long line of Jurists, reaching back to the earliest ages, and connect- ing you with the science of Jurisprudence, as developed, expanded, adorned, and illustrated, through a period of two thousand years. You are now members incorporate of an ancient and honored fraternity, in whose ranks you may claim brotherhood with a throng of immortal dead. who have won their crown, and a greater throng of the living, who are still pressing on towards the mark. Crossing the threshold of active life, with eager feet, as the portals open before you, pause a moment with me, before entering upon your career, and let us consider together some of the characteristics of the profession you have adopted. My theme is. The Unity and The Dignity of the Law. The Law has an historical unity. In its origin, pro- gress, growth, and maturity, it is an integral body. To its intelligent study, comprehension, and application, we shall derive great advantage from examining its history as a science, exploring the sources, tracing its prQgress, from remote periods, through all the mutations of society, and showing its development under every form of civilization. The subject affords scope for ex- tended inquiry, and might readily exhaust volumes. I can now only indicate its general outlines, and point you to a course of study and investigation which, in the future, you can pursue for yourselves. There were three chief sources from which modern civilization derived the principles of Civil, Constitutional, and International Law — Judea, Greece, and Rome. Tn each of these social organizations, during a long period of separate existence, there had been developed peculiar and strongly marked characteristics, — ^in Judea, the principles of true religion — duty to God and duty to man — the foundation of all law ; in Greece, the philosophy of the mind, in all its various relations, — the foundation of exact thinking and reasoning ; and, in Rome, the science of Government, in its practical appli- cation to the welfare of the people— the foundation of all equal, just, and impartial legislation. These three were to be brought into one. First, Greece stretched her victorious arms over the East, Alexander her stand- ard-bearer ; and next, Rome enlarged the circle of her power and overlapped the former ; so that in Jerusalem, at the promulgation of Christianity, might be observed everywhere the influence of three systems, originally distinct, combining and coalescing so as ultimately to be blended harmoniously together. This union was pre- ceded, and largely induced by the spread of the Greek tongue through the West and East, and the influence of the Hellenic literature, alike at Rome and in Jerusalem. It was promoted, also, by the dispersion of the Jews — compulsory and voluntary — not only in Babylonia, but through Greece, and Italy. They readily became natu- ralized, they received proselytes, their influence extended, and thus they constituted, throughout the Empire, a medium by which Rome, Greece, and Jerusalem were brought together. What a wonderful assemblage was gathered on the day of Pentecost, when Peter spoke :— " There were dwelling at Jerusalem, Jews, devout men — out of every NATION UNDER HeAVEN." Acts^ u. II. " Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia, and in Judea, and Cappadocia, in Pon- tus and Asia, Phrygia and Pamphylia, in Egypt and in the parts of Libya about Gyrene, and strangers of Rome, Jews and proselytes, Cretes and Arabians." The presence of these three forms of civilization, and their combination, are well illustrated in the case of St. Paul, the tent-maker of Tarsus, in Cilicia, a province where Cicero had ruled. He bore the name of the Roman patrician family, the TEmillian Pauli. lie was sur- rounded by a Greek population governed by a Roman pro-consul ; though a Hebrew of the Hebrews, and a student of Holy Scripture from early childhood, he was familiar with the poetry and the philosophy of Athens, and with the laws of Rome. A Pharisee, brought up at the feet of Gamaliel, in the school of Hillel, he could . dispute alike with Jewish doctors or with "philosophers of the Epicureans and of the Stoics." He spoke Greek, Hebrew and Latin ; he could plead before Agrippa and Festus at Caesarea, or before the Areopagus on Mars Hill. Of the tribe of Benjamin, yet he was a Roman citizen, and, as such, demanded his right of appeal, under the Roman law, from Festus to Ca3sar. His writings abound with allusions to the Roman law, especially its provisions relative to heirship, testaments, adoption, the right of citizenship, and slavery. A remarkable proof of the extent to which the influ- ence of the jurisprudence of Rome had reached, is indi- cated also in the Gospel. By the laws of the Twelve Tables, the plaintiff in a suit, on meeting his adversary, might order him to go before the prtetor or judge, say- ing, in jus voco te. This was the process, or summons commencing the action ; if he consented to go, the de- fendant offered the tip of his ear, which the plaintiff touched, and then the plaintiff took him forthwith to the judge. They might, however, adjust the difference when it had reached this serious point ; and, so the law pro- vided expressly that if they made up the matter by the way, endo via, the process was dropped. This rule of the Twelve Tables was so familiar to the inhabitants of Judea, that it was made the subject ^of a figure illustrat- ing moral truth in the discourse of our Lord, " Agree with thine adversary quickly whiles thou art in the way with him — endo via — ^lest at any time, thg adversary de- liver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison." (Matt, v: 25.) yhere is an inscription upon a Christian tomb in the catacombs, of which the name is Latin, the letters Greek, and the conclusion in Hebrew ; the superscription oyer the cross could be read by Jews, Greeks, and Ro- mans. These represent to us at a glance the three great peoples, whose religion, philosophy, and laws, gradually blending, and brought into convergence and ultimate unity, became the perennial fountain of Christian civili- zation and jurisprudence. The process of mutual trans- fusion and assimilation between these three systems, not- withstanding the persecution of the Church, continued through the first ages of the Christian era, until, by the adoption of Christianity by Constantine, and the trans- ferrence of the Imperial Court to Byzantium, all lines of distinction were removed, and the basis was laid for the promulgation by Justinian of a system of jurisprudence which combines the clear, polished intellectuality of the Athenian, the manly sense, practical reason, and wide experience of the Roman, and the pure morality of the Christian. In tracing the History of the Roman Law, we find little of value anterior to the Twelve Tables. But few fragments remain of the Leges Begice, or the laws which prevailed at Rome under the monarchy. After the expulsion of the kings, the first name that meets us is Papyrius, Pontifex Maximus — who is said by Pompanius to have reduced all the laws into one body, known by his name Jus Givile Papirianum} He had the honor of being the first Roman Codifier. There were so many uncertainties and inequalities in the administration of the law, especially as between the plebeians and patricians, that the popular leaders pressed the question of legal reform upon the consideration of the Senate with incessant vigor of argument and determina- tion, until that body finally yielded to a public necessity. Pliny, in his Natural History, speaks of a statue erected in the forum to Hermodorus, the Ephesian — who was " an interpreter of the laws of the Twelve Tables. " — This Ionian exile, was, no doubt, skilled in the laws of the Athenians, and it was probably through his influence, that three Commissioners were sent to examine the laws of the Greek States of Italy, as well as those of Ancient Greece. They spent a year abroad, partly in travel, but chiefly, however, at Athens, where they studied the laws of Solon — " indytas leges Soloms." — On their return, the fruits of their labors and research were laid before the Decem- I Bee no sufficient ground for yielding to the doubts raised with regard to Papyrius. The assertion of Pompouius is clear and distinct — " Is liber, ut diximus, appellatur Jus Civile Papieianum, non quia Papieius de suo guicguam ibi adjecit, sed quod leges sine ordine lataSin unum compoanit." The passage in Dionysius which is supposed to shake this, seems to me substantially to confirm it. The whole subject is considered with great learning in Qluck de jure Givili Papiriano and ' Mollenbech't Dispulatio. Salae, 1780. 10 viri appoiated by the Senate, ■wlio, after several months of careful deliberation, produced the code which, with its subsequent additions, became known as the Twelve Tables. This was the ground and basis of the civil law. Prom the year of the city 302, when it was adopted, it was the text of lawyers, senators, jurists, and praetors. As around a frame-work, by the beautiful process of affinity, chrys- tals form, and grow, and cluster, until that which was their primal bond of union, is lost in their light, and glit- ter and beauty — so the Twelve Tables became the centre of treatise, comment, elegant and philosophical inquiry, acute and rigid discussion, exact and careful criticism, humane and catholic rationalism, until, as if upon twelve glorious columns, there arose in splendor and majesty, a Temple of Justice worthy of the divine nature of man. When asked why, at this advanced stage of the world, we should return so far back for precedents, and the grounds and rules of legal decisions, we reply, that in the Roman experience there were constantly occurring cases similar to those of our own time ; and in their solution the elementary principles of justice were examined, discussed, and determined, the rules adopted were considered and based upon the grounds of right reasoning, and were 11 necessarily just and correct guides of action, not only for that day but for all time. There was something eminently practical in the Roman mind ; there was a great breadth of common sense, and a vivid perception, consciousness, and appreciation of legal right ; and these characteristics were applied with marvellous power to the development of legal principles. The great patrician families, who for centuries had their thousands of clients, — a sort of clan whom they pro- tected, — esteemed it a privilege to give this large client- age legal advice, and this was done without fee or reward. It was not a gratuity, but the discharge of an honorable duty. From this arose a custom, which to late years was a rule of the English law, that an action would not lie for the fees of counsel. Indeed, it is evident from numerous passages in the Anglo-Saxon laws, before the time of Edward the Confessor, that the Roman relation of patron and client subsisted in its fullest dimensions in England. Every person was dependent upon some Tilaford lord, or patron. It is an error to suppose this was an original product of feudalism. It had its rise in the an- cient distinction of patrician and plebeian at Rome, was continued in the customs thence derived by the barba- rians, was imported into the feudal system, and was trans- formed into the relation of lord and vassal. 13 To return, however, — the Roman Patrician delighted in the duty of advising his clients, or family adherents; To a large extent, in their mutual relations, he became substantially their Judge. He was the head of the house as it were, and they would appeal to t)ther authority with caution and hesitation. It was a natural conse- quence of this institution that the Patrician should emulate to be a good lawyer, and as his decisions might become the subject of criticism, that he should endeavor to base them on grounds that would stand the test of examination. Hence arose the responsa jurisconsul- torum — a large body of decisions upon a great variety of cases, considered, discussed, weighed, and determined, by the very best intellectual force of Rome. Again, the Pr^tors or Judges published, at the begin- ning of their year, the general rules which would govern them in their administration of Justice, and these, neces- sarily grew into a system, which eventually was adopted in what was called The Perpetual Edict. Again, individual authors and commentators appeared in the field, and published original disquisitions and treatises upon particular branches of the law, which gained great and widely extended authority. Ulpian, Paulus, Modestinus, Papinian, and others, in this manner, influenced, very deeply, the Roman Jurisprudence. 13 One instance, in this respect is conspicuous : The Pour Books of the Institutes of Justinian are noted for a masterly exposition, in a condensed form, of the principles of Justice. They were known to be taken largely from Gains, called by Justinian, with a natural pride, our Gaius, noster Gains : but who Gains was, or when he lived, was not exactly known, and is yet un- determined. The historian Niebuhr, iu the year 1816, passing through the library at Verona, observed that one of the MSS. there preserved, a palimpsest, was written over an ancient MSS., containing passages of a Roman Jurist, who, he did not doubt, was Gains. He communicated the discovery to Savigny, and the information resulted in a commission of learned men. who ultimately found buried, under monkish writings of the works of St. Jerome, The Institutes of Gains : and, when recovered and restored. The Institutes of Gains were found to be substantially the basis of The Institutes of Justinian, which the Codifier had bodily adopted as the analytical exposition of the fundamental principles of The Roman Law, and which were now revived, and made known to the modern world, after having been entombed for 1,400 years. It will thus be perceived, that the mode of expound- 14 ing, illustrating, applying, and administering law at Rome, contained a principle of wonderful elasticity, and which, instead of allowing the law to be reduced to a system of cast-iron rigidity, — whereto there is always a tendency in the early stages of society, — accommodated itself to new circumstances as they arose. When, therefore, the Roman commerce spread over the world, — when nation after nation was reduced to subjection, and, though governed as a province, left to its own municipal institutions and local customs, — when not only the laws relating to government and public polity, the marine and the military power, but those affecting the civil status, the intercourse of people of different origin, the rights depending upon contracts, buying, selling, loaning, testaments, succession, tutelage, bankruptcy — when these and a multitude of kindred questions became the subject of forensic discussion and judicial action, not only as between Roman citizens but as between the inhabitants of different states under the Roman power, it is obvious that the Roman Jurispru- dence must ultimately have embraced almost every form and variety of case that could be presented to the human understanding and judgment. The profession and practice of the law was pre-emi- nejitly the great civil institution of Rome. The study of 15 the law was the favorite pursuit. In earlier ages, stu- dents had not the benefit of any formal instruction ;^ they simply attended the jurisconsults, and learned what they could from the opinions delivered. Cicero studied under the two ScEevolas, and an earlier generation under Cato and Appius Claudius. Towards the close of the Republic there were professors of law who received a fee for their lectures. ^ Subsequently Masurius Sabinus, led by want, " ad panem liicrandum" to get his daily bread, opened a school, and the practice was soon followed by others ; ultimately government took charge of these in- stitutions, and, under the care of the State, they attained great renown. There was one at Rome, another at Be- rytus, and another at Constantinople.* At Rome law was taught in Latin: at Berytus, styled by Justinian " the mother and nurse of the laws," it was taught in Greek. The school at Berytus, which already flourished in the middle of the third century, was endowed with many privileges by Diocletian and Maximilian. Justinian esteemed its management so important that he placed its direction in charge of the Bishop of the city, and the President of the province, in connection with the profes- 1 Opuscula de div /am juriscon. Ottho cap. 1. 3 Cicero, Brut., 19; Gellius xiii. IS; Eisenhart Just. Hist. Jur, Lit., cap. iii. g 3 ; Cujac, Observ., L. xxvii. c. 1 . Bachii. Hist. Jur. Eom. Lib., III., cap. i, sect. iii. 16 sors. The school at Constantinople was also largely fre- quented. For these schools Gains wrote his Commenta- ries, and Justinian prepared his Institutes. The first year, the Institutes of Gains and particular elementary treatises were studied; the second year, edicts on certain titles of the law specially selected ; the third year was chiefly occupied with case reading and the eight books of the Responses of Papinian ; and the fourth was employed with the Responses of Paulus. This four years' course constituted the gradus of every student of law down to the time of Justinian, who en- larged the period to five years and modified the studies. He forbad any one to act as an advocate who had not passed the curriculum. It was termed the Justinian or Tribonian Method. The students were instructed the first year in the Institutes and ra irpSiTci, — the first four books of the Digest. This class had met with the com- mon fate of Freshmen, and had received a ridiculous ap- pellation — Dupondii} The Emperor now honored them with his own name, and they were called Justiniani Novi. The second year they were taught in the > The Dupondiium was the coin of lowest value,.T— on the depreciation of the currency two " as" having been coined in one. The freshmen were " two-penny fellows," — ^that is, they did not escape the contemptuous expression generally ap- plied to the youngest academical class, — a usage not liniited to Constantinople, but continued in the Middle Ages, and even in our own time. Dicti idea Dupon- dii quasi nuUius pretii homines. Heineccii Syntagma-proem, 46, 17 second and ttird parts of the Digest, and they were called Edictales ; the third was especially devoted to Papinian, and they were called Papmiamstce ; the fourth to the remaining parts of the Digest, and they were called Lytce,^ from being supposed now capable of solving any problem in law ; and the fifth to the Codex, when they were called Prolytce. The quinquennial course sub- sequently obtained in all the schools and universities.^ The professors in Constantinople, Antecessores, were men of great learning, and held high oflSces and titles ; they were not only termed dissertissimi^facundissimi, but also clarissimi or tllustres. But, to return to the earlier days of Rome, when the law was in process of formation, and its study had not yet attained definite form, — it is worthy of observa- tion, that during his novitiate, the law student, as well after as before law schools were founded, in addition to his formal studies, attended the trial of causes, the dis- cussions of the Roman Bar, and especially delighted to sit at the feet of the Jurisconsult, catching the words of legal wisdom as they distilled from his lips. 1 Iii/tce, from Kvrai quasi solvendis qucBstioibua idonei. Heine. Syntag proem, 46. Qui juris nodos Ugwpinqm anigmata solvunt. Juv. Sat. viii. 50. 3 Stat. Univers. Cantab. — Taylor says, " With us I find one White of Basing- stocke, a son of the famous civilian of that name, about the reign of Queen Mary, styling himself Magister Artium et Lyta Juris." Civil Law, p. 39. 18 There is nothing presented in Roman history more attractive and delightful than the records of the bar, whether we visit the forum and the Senate, or withdraw with the advocate and jurist to the elegant seclusion and refined companionship of his luxurious villa. The Roman lawyer had his vacations, and he enjoyed them with a large mixture of intellectual pleasures.^ " In omne vitce cursu optimum visum est, ut quantum cessare a causarum defensione licuisset, tantum ad eruditorum hominum, tui que similium congressum aliquem sermonem conferre." He adorned his retirement with the presence of learned men. On these occasions the lawyers sought relief from the toils of their profession in agreeable and instructive conversation. They discoursed of the poets, of what constituted oratory ; they inquired concerning divine things and the supernatural, disputed on fate, the na- ture of the Gods ; conversed upon friendship and old age, philosophised upon the foundations and sources of the laws, and mingled profound speculations and reflections with wit and sentiment. Cicero has preserved a charm- ing view of these scenes. Great pleaders like Crassus and Lselius meet and converse upon topics of deep in- terest. Their manners and language are courteous and refined. The young men admitted to this noble company 1 Macrob., Sat. 1, Cap. 2. 19 approach with grave respect. The dialogue flows in dignified periods ; the argument proceeds with warmth, vigor, and no rudeness, and each character manifestly represents an actual original. During the Saturnalia there was less gravity and more abandonment, especially in the days of the Empire. One of the seven days in Macrobius is partly given to repeat- ing witty sayings, and among these he records various jokes of Cicero, in which amusement, '■^ facundissimus ut in omnibus^" he excelled, as in all things. The great orator who thundered with tempestuous vehemence against Catiline and Verres could, in his genial moments, indulge in humor, play of thought, and pleasing satire. On one occasion he did not spare even his own brother, "ftctTO cum in ea provincia quam ille rexerat, vidisset cly- peatam imaginem ejus, ingentibus linearmntis, usque ad pectus ex more pictam,^'' (a great picture of his brother to the breast), he said, (his brother was small of stature,) " Frater meus dimidius major quam totus." The half of my brother is bigger than the whole. When he saw Lentulus, his son-in-law, who was a little fellow, girded with a long sword, he exclaimed ; " Quis generum meum ad gladium alligaviV Who tied my brother-in- law to a sword? Caninius Rebilus was Consul for one day. Cicero never ceased to joke upon it. " Vigilan- 20 tem liabemus consulem Canimum, qui in consulatu suo somnum non vidit."^ We have in Caninius a watchful Consul, who, during his Consulship, never slept. Pom- pey, upon the invasion of Italy by Csesar, fled to Mace- donia, and there, after a long delay, Cicero followed him. He found that Pompey, with his usual indolence, had made no preparation to meet the enemy. On Cicero being reproached for his tardy appearance, he said : " Minime sero vem, nam nihil hie paratum video." When, during Caesar's power, a Laodicean told him he had come to Rome to beg liberty for his native country, Cicero said to him in Greek, " When you have obtained it intercede for us."^ The orator tells, himself, a good story of cross-examination. Crassus cross-examined a witness, Silus, who related something he had heard against Piso. " Potest fieri," said Crassus to him, " Sile, ut is unde te audisse dicis, iratus dixit." " May it not be, Silus, that he who told you was angry ?" " Annuit Silus." '■'■Potest etiam ut tu non reete intellexeris." " It may be, also, that you did not understand it exactly." " Id quoque toto capite annuit, ut se Grasso daret." Silus nodded. " Potest etiam fieri, inquit, ut omnino quod te I Macrob., Sat. 2, III. 2. Maorobius relates that a book containing the Tnllian jests and retorts was in existence, compiled probably by one of Cicero's retainers, though by soniQ attributed to himself, 21 aiidisse diets, nunquam audieris.'''' " It may be, also, that what you say you heard, you never heard." Silus would probably have nodded to this, but the humor of the question was too much for the Court-room, and the audience overwhelmed the witness with bursts of laugh- ter. " Hoc ita proeter'- expectationem accidtt, ut testem, omnium visits obrueret." But we can no longer linger in this pleasant com- pany, and must turn to graver matter. For several centuries the profession of the law at Rome was the most dignified and influential occupation of the Pa- trician. A long line of distinguished jurists adorned' the bar and the bench, the forum and the senate-house. These great men were not contented with the ephemeral reputation which the mere pleader enjoys, whose fame expires with his life, or fades away with a brief tradition. They thought and wrote upon the great principles of their profession, and treated the law as a science worthy of the deepest philosophical investigation. The most striking characteristic of this race of lawyers was the rare combination exhibited of subtle disquisition and exact interpretation, close examination of the very grounds of reason and justice, and the practical deduc- tion of reasonable rules of human action, public and 1 Cicero, de oratore, 2, 70. 22 private. To these remarkable intiellectual traits and habits, we owe most that is precious in the civil law. The system is no mere legislative production. It is not the result of an Imperial edict. It is not a customary law, the birth of accident, and prevailing by force of local usage. It is the science of Justice, constructed upon the fundamental principles of reason, natural right and equity, and as such, demanding universal recognition and possess- ing universal authority. Finally, when from the vast accumulation of legal dis- quisition, the propriety was indicated of systematizing this mass, of discarding that which was exceptional or adventitious, and analyzing that which was cardinal, Jus- tinian promulgated the Institutes, Code, and Pandects — " The public reason of the Romans." At this time Christianity had become the established religion of the Empire. Wherever the Roman Eagle was carried, by its side the Banner of the Cross was planted, and upon the ecclesiastic and military powers, as if sup- ported by two armor-bearers, the civil law was borne along with the tide of Roman Empire, until it spread over the wide domain of Europe. There is no time to trace minutely its progress. Enough, that on emerging from the long night which settled down upon the social convulsions that shipwrecked the Roman dominion, the 23 civil law was found to be the basis of the established, jurisprudence of all civilized nations. " The common law of Germany," says Savigny, " is no other than the Roman law, considered in its particular applications to Germany." In Spain, the Forum Judicium^ or Fuero Juzgo^ as it is called, proclaimed in the Seventh Century, contains the Roman law, modified to suit the condition of the Goths. Craig says of Scotland: " We follow principally the rules and decisions of the civil law." The Code Civil of France, which, with modifications, has been adopted generally over the Continent, is, ac- cording to Dupin, extracted literally and bodily from the works of Pothier, and Pothier was nurtured and bred a civilian, almost from his cradle. Abroad we find the colonies following the parent country. British Guiana, The Cape of Good Hope, and the Island of Ceylon, are governed by the Roman Dutch Law; St. Lucie and Lower Canada, by the Goutume of Paris ; the former Spanish possessions in America, and the Islands of Cuba and Trinidad, by the Spanish Roman law ; Louisiana by the French law ; Guernsey and Jersey by the Goutume of Normandy ; Mauritius by the Code Civil. 24 This extensive adoption of the Roman law in Europe was not entirely the result of the prevalence of the Roman power. Still, the influences attributable to that cause in a measure survived the shock which over- turned the Empire, so that, on the revival of learning, it was to the civil law, rulers and judges resorted for maxims of justice and precedents of authority. The discovery of the Pandects, at Amalphi, in 1120, was shortly succeeded by the establishment of the famous Law School at Bologna, where the great Irnerius in- augurated anew the academic study of legal science. Crowds of students flowed thither from other countries who, on their departure, carried home the knowledge of the ancient jurisprudence. New schools sprang up at Rome and other Italian cities, and the example was soon followed at all the great seats of learning in Europe.' In this manner the rules which had been preserved as part of the common law, mixed with local usages and customs, were restored to their original exactness, and applied with more precision and regularity. The Roman jurisprudence was reinstated in its ancient dominion, and once more became the subject of careful study and laborious comment.'' a4itr 1 Savigny' Mit;«aj*, B., ISQ-ISV, 319. Eisenhart, § 58, Cap. III. 2 With the schools arose various sects. The Proculians and Sabinians of the Empire, who contended, the one for the older forms of law, when Rome was a free 25 I have, on a previous occasion, endeavored to show, with much detail, how largely the Common Law of England, in all its prominent features, was indebted to the civil law. The subject is of great interest to the legal scholar, and abundantly repays investigation. It will be found that the Roman law is the basis of the law military and maritime ; the law relating to the estates of deceased persons, testaments, advancements to children, bailments, suretyship, agency, natural accessions, allu- vions, partnership, marriage, guardianship — testamentary and general, — security for guardians, presumption of death from absence, imprisonment for debt, bankruptcy, and insolvent assignments, fee farm rents and copyhold estates, warranty of title, merger, limitation of actions — the whole system of special pleading, the action, excep- tion, replication, duplication, triplication, quadtuplica- tion, answering to the declaration, plea, replication. republic, and the other for the later jurisprudence, were revived after the death of Irneriua, who was a Proculian, in the sects of Bulgarus, who imitated the Pro- culians in their conservative tendencies, and Martinus Gosia, who inclined to novelties and deference to imperial authority. The Gosians and Bulgarians divided the schools for many years. Irnerius collected the scattered volumes of the Justinian law, and wrote brief comments upon the text. He also composed a formulary. His system of teaching was known as the Irnerian method. Accur- sius, who taught in England, introduced a new method. He collected the expositions of Irnerius, Bulgarus, and others, and added observations of his own. Instruction was given from compendiums or dictionaries, and the followers of this school were called Summistce. Cujaciua finally gave more breadth to the system of teaching, by mingling elegantiores Utteras cum juHsprudentia. Eisenhart, Cap. III., §V, et. seq. Slevog. Opuscula de Sect. Kom. 26 rejoinder, surrejoinder, rebutter, — ^proctor or attorney at law, — cautions by the plainti£f or defendant, saUsdaUons, answering to the pledges to prosecute, John Doe and Richard Roe, and to special bail — compurgation or put^ ting a party to his oath, advocation or the writ of cer- tiorari^ information by the Attorney General, injunc- tions, and the constitution of' the judicial tribunals into separate courts for law, equity, and revenue or exchequer cases. To the same source may be attributed the division of property, corporeal and incorporeal, rights of persons and of things, the old common law rules denying counsel to one accused of treason, prohibiting condemnation in the absence of a criminal, and permit- ting the public prosecutor alone to compel the attend- ance of witnesses in capital cases. Our circuits are imitations of the progress of the Roman Judges through the principal cities and towns, once a year, for the administration of justice. Even the time rule, by which brevity of speech is sought at the expense of elaborate argument, is borrowed. The hour-glass stood at the judicial hand, and when the water had fallen the speaker stopped. Pliny, at the trial of Flavins Martianus, a case so important that Cornelius Tacitus was his associate counsel, plumes himself upon the special favor acceded to him. He says : "I went on very nearly five hours, 27 for besides the ten large water clocks at first granted me, I had the allowance of four more."^ I have thus briefly indicated in broad and general out- line, the Historical Unity of the law, as one and the same system, flowing down from the same original foun- tain, and requiring to be traced through all the changes of society to its flnaKspurcg. in order to be properly studied, understood, objooto ^ , and illustrated. The UNITY of the law is exhibited not only in its his- tory, but also in its analysis and principles. However society may be constituted, — whether upon the simple forms of barbarism, or the complex system which grows up with art and commerce, luxury and wealth, the principles governing the administraj,ion of justice must ever be the same, although the modes of application may be various. There is a universal law, which Cicero so justly deflnes as vera lex, recta ratio, constans, sempiterna. The greater number of the positive institutions of law, says Savigny, are founded on the very nature of reason. I Sometimes there was greater liberality. Quoties judico gitantum guis pluri- murn postulat aquoe do. Pliny Epis., vi. 2. When I am on the bench I give the lawyers aa much time aa they require. 28 Hear what the Institutes^ say : Jurisprudence is the science of the just and the unjust ; jiisti atque injusti scientia. The precepts of law are these : honeste vivere, alterum non loedere, suum cuique tribuere. That which natv/ral reason determines among all men, is called the j?^ gentium, as a law which all use. Natural law which prevails among all nations, is con- stituted by a certain divine providence and — semper firma atque immutahilis permanet — it stands fast forever. Celsus says : " Jus est ars honi et cequi. Where can be found more pure and noble precepts — more broad and catholic views of what is just, and right, and true ? Slavery was an institution of positive law — what do the jurists pronounce of it by the law of nature ? — '■'■Jure naturali omnes homines ah initio, liberi nasce- bantur." All men, from the beginning, by natural law, are born free ! Liberi nascebantur. There spoke out the voice 1 Inst. Lib. 1, Tit. 1, 2. 29 of nature and justice from the midst of a desolate waste of slavery, and declaring the glorious truth of natural liberty, even in the shadow of the throne and the Impe- rial purple, — and it comes to us through the series of ages over to these western shores, a vindication of man's divine nature, inscribed on the very portals of Roman Jurisprudence. From what has been said, the dignity of the law is obvious. It has to do with the foundations of social order, —the ordaining of constitutions, — the arrangement of the various departments of government in their peculiar spheres — the intercourse with foreign nations, the rights of war and peace, of trade and commerce — the domestic relations, all the varied rights of persons and property, with everything, in a word, which pertains to man in his earthly existence. The sound jurist is an essential ele- ment of the well-ordered commonwealth. The lawyer is in need when states are convulsed, when constitutional liberty is assailed, when treason stalks abroad and lifts her viperous head, to sustain the tottering fabric of gov- ernment, by a vigorous legislation, and to enforce the law by a faithful administration. The law presides at our birth and at our death — ^in all the delicate and intricate machinery of society — in all the tender relations and ties of life. It penetrates the 30 sanctuary of home, and by our firesides and our altars we have the majesty of its protection. And where shall not justice enter ? Founded on the immutable laws of God, how shall time, or place, or cir- cumstance, human pride, or power, or wealth, or arms, violence, or oppression, subvert its eternal principles, while there remains a divinity within us to assert its ce- lestial supremacy. In conclusion, gentlemen, permit me to offer you a few words of advice as to your professional course after leaving this institution. Never in the history of time was there a period when the young men who are to become our rulers, and legis- lators, and judges, had so dear and sacred a trust reposed in them, as in this age and nation. But to fit yourselves for these high positions requires a world of labor, patience, and industry. Without this nothing can be accomplished beyond a poor miserable mediocrity. You are students for life — scholars to-day and forever — gleaning your way through the fields of learning, inch by inch, hour by hour, day by day, year by year, laying up treasures to be dispensed at need under the drafts and requisitions made upon the great lawyer in the height of his professional career. 31 There is no one single precept more wortliy of incul- cation upon the minds of young men entering upon the practice of a laborious and learned profession, than the necessity of employing all the hours of youth, and all the faculties of the mind in diligent study. There is no gift of genius so great as to dispense with earnest, hearty toil ; no intellectual power so commanding as to scale the heights of knowledge alone and unaided. Work is the normal condition of man, and while it brings in to the professional husbandman the rich returns of a bountiful harvest, it will be found to invigorate all his powers, enlarge the sphere of his pleasures, and exalt his moral nature. Labor is dignified. — It adorns our life, secures our in- dependence, and elevates our whole being. Labor is joyful. — Nothing can surpass the delight which attends the construction and accomplishment of some great scheme, or the conduct and happy termina- tion of a protracted inquiry, which has absorbed all our thoughts. Rising from the demonstration of the laws of the planetary system, Kepler exclaimed, in ecstacy : " the intense pleasure I have received from this discov- ery never can be told in words. I regretted no more the time wasted — days and nights spent in calculations. I tired of no labor, I shunned no toil of reckoning." 32 Labor is honest. — It earns all it acquires. Its product is its own. It has everything to give and nothing to beg. Labor is manly. — Who earns his bread in the sweat of his brow, feels his bosom glow with an honest pride, and treads the earth with a firmer step. And labor has its sweet rewards in rest. — The plough- man homeward plods his weary way, but it is to balmy repose and unbroken slumbers. The student ceases from work to refresh his drooping spirit, — but it is for that delicious dreamy meditation, which lights up the soul, like the soft twilight of a summer's eve. Known unto thee alone, child of toil, are the precious blessings of rest from labor, of tranquil sleep, and peaceful Sab- baths. But when we turn from its inward psychological influ- ences, to its exterior advantages, we still find the rule generally true, that industry is essential to greatness. Indeed, it is impossible to read the life of any person of distinction without being struck with the vast and surprising extent of his labors and the constancy of his occupation. Without estimating them by their quality, think, for a moment, merely of the quantity of the pro- ductions of Plato, Cicero, Bacon, Franklin, Grotius, Coke, Story, and Kent. A general has ordinarily enough to do in the field, and yet the despatches and correspondence of Marlborough, Wellington, Napoleon, and Washington are amazing proofs of their incessant occupation, without regard at all to those military exploits upon which their distinction chiefly rests. And these are mere specimens selected at random ; the whole realm of biography is filled with the proof That industry must succeed, and will be rewarded, is, I rejoice to say, a law of Nature. There may be appar- ent exceptions, but the law itself stands, and you can depend upon it, — and work up to it, — and prove it, — ^by your own constant diligence. And it is a glorious law, an honest and a righteous law, stamped upon every page of history, cut upon the monuments of human greatness, cheering on the young and true-hearted candidate for honor to patient continuance in well-doing. In the world's vision we see the resplendent glories of a great and over-shadowing fame, but not till far advanced in its career, towering up above the .com- mon level. We wonder and admire, — as men gaze at the culminating luminary. But who can tell the strivings, the toils, the vigils, the days and nights of study, the long years of obscurity, — and yet these were the school 34 in which was prepared and whence came out this man who now commands our applause. Look at Hugh Miller — the stone-cutter — a great heart was there, hammering out its way without a " master or monitor." " The necessity," he says, " of ever toiling from one week's end to another, and all for a little coarse food and homely raiment, seemed to be a dire one, and fain would I have avoided it. But there was no escape, and so I determined on being a mason ! " And a mason he was, building up his renown ; and as betimes he wan- dered about the shores, over pebble beds, and water rolled fragments of rocks, in mole-skin clothes, and hob- nailed shoes, or worked with his mallet in the old red- sandstone quarries of Cromarty, he found the footprints of his Creator there — and then, he exclaims " noble, upright, self-denying toil — who that knows thy solid worth and value, would be ashamed of thy hard hands, and thy soiled vestments, and thy obscure tasks, thy humble cottage, and hard couch, and humble fare ! " Take courage, young man, who, without the aids of pros- perous fortune, without influence, without friends, with nothing but a stout heart, and earnest will, art left to work your way. It is on the cloud the rainbow is painted. Your very deprivations will develope your resources. Your misfortune will be the occasion of 35 your hope and effort. It was when incarcerated in the Tower, crushed and world-forsaken — every promise and project blasted, and his proud ambition laid low in the dust, Walter Raleigh wrote his history of the world — that master-piece of epic prose — the capital, as it were, of his renown, before like a mighty column he fell. The crazy tinker, twelve years in Bedford jail, earn- ing his bread by making long-tagged thread-laces, was a sorry spectacle before the Lords and Prelates of England. " Look," says Parry, " into that damp and dreary cell, through the narrow chink which admits a few scanty rays of light, to render visible to the wretched, his abode of woe. Behold a prisoner, pale and emaciated, seated on the humid earth and pursuing his daily task, to earn the morsel which prolongs his existence and confinement together. Near him, reclined in pensive sadness, lies a blind daughter, compelled to eat the bread of affliction from the hard earnings of an imprisoned father." And yet from that living tomb broke forth a celestial fire, lighting up the waste places of the human heart, with the noble strains of the divine allegory — The Pilgrim's Progress. — No prison could bind that soul — far away it wandered in that dream of dreams, till, as an eagle, it went up to the city which shone like the sun, whose streets were paved with gold ! So we perceive, gentlemen, that a brave spirit can 36 make opportunities for itself, and through energy and self-help, triumph over every discouragement. But some may say, it is not given unto us all to win honor and distinction. Certainly not, but where is the prophetic eye to discern the man, before the hour has come. Who would have discovered in the unassuming, gentle manners and unostentatious deportment of Mar- shall and Kent, when they first came to the bar, — any token of their future eminence as jurists who were to render illustrious American jurisprudence over the world. Who would have foretold in the laborious youth, hardy toil, and simple life, of that young man who, a few years, since, was hewing his way through the western wilds, that there was preparing the man who, as honest Abra- ham Lincoln, would carry this great people, and this glorious Union, triumphantly through all "the storms and convulsions of a wicked rebellion. Who would have predicted in the slight form, and modest mein, of the young subaltern McClellan, that he was to save the Capitol, and carry our banner in victory over the hills and valleys of the Old Dominion. Most truly, tipae and opportunity come to all men, but the great difference consists in this, that all are not 37 equally prepared. The important secret of success is to be ready. Time enough, says indolence, when the oc- casion offers — and, consequently, indolence never is, in time. Forgive me, if I seem to urge too much upon you the necessity of spending the year now immediately fol- lowing your graduation, in study — study of the law, an- cient and modern — study of the languages, study of the sciences, arts, and of various and elegant learning, so that you may be fitted to take whatever place in your profession may offer. Depend upon it, that when you have once fsdrlj embarked upon the active practice of the law, it will be utterly impossible to make up for a youth squandered and wasted in idleness. It cannot be done — the precious moments lost can never be regained, and you will halt and stumble in your course, and your intellectual stature will be dwarfed and stunted by reason of your scanty supplies. And when you are ready, step right down into the stream of life, with boldness and confidence. Do not stand on the brink trembling — " He that will attain to it, Must fall in plump and duck himself at first — And that will make him hardy and adventurous. And not stand putting in one foot — shivering." Have faith — Quid fides — Quod non vides. Have hope. — Quid spes — Futura res. 38 Faith is without sight. You cannot see all the be- nignant powers working for the trustful laborer. All you have to do is to work straight on, plough right for- ward with an even furrow, — sow thy seed in the morning, and you will return bearing your sheaves with joy. I have thus, in the exhibition of the unity and dignity of the law, and the course you should pursue to become masters in your profession, endeavored to give you a word of advice, cheer, and encouragement. When I remember what ' young men have accom- plished — when I think of the youth of Cicero, Kepler, Galileo, Bacon, Newton, Bossuet, Boyle, Pothier — I feel how noble and honorable is well-spent youth — I cannot refrain from pointing you to such examples and bidding you God speed, on your way. It is a touching and tender spectacle in the sight of men and of angels, to see a young spirit starting upon its earthly course. How is the bark freighted, has it a compass, by what chart shall it steer ? These are the momentous questions, and, as they are answered, all depends. Young gentlemen, I envy you the age in which you are to live and take an active part. " Modern history," says Dr. Arnold, " is the last step — it appears to bear marks of the fullness of time — as if there would be no future beyond it." 89 I believe that we are living in a prophetic age. The times are ripe with great events. Look abroad, and see the portentous signs in China — India — ^Rome — Byzantium — Russia. Verily the pillars of heaven are shaken, and the fount- ains of the great deep are broken up. And at home "how the earth quakes and the sky re- sounds with the tramp of war and the thunder of artil- lery in the last struggle between freedom and slavery — the great, final conflict between human bondage and the glorious spirit of universal emancipation. In this hour of trial — ^in this hour of affliction, of sift- ing and refining, be true to the principles of law and justice in which yo.u have been trained and schooled. Be true to your age — ^be true to your country — ^be true to the laws — ^be true to the Constitution and to the Union ! WM. 0. BETANT A CO., PRINTKB8, 41 NASSAU STREET, OOB. LIBERTY. liliiii llillll