Neither duty nor inclination will permit me to take leave of you,
young gentlemen, without offering a few remarks, of general
application to the subject of our late studies.
We part, perhaps to meet no more. Some of you go into the active
business of life, some to pursue your researches under other guidance.
To both alike, my experience may enable me to suggest thoughts, and to
offer advice, which may be found of some practical value.
Whether your immediate destination is to the bar or the closet, you
will alike find the necessity of continuing your studies. To give them
such a direction as may be profitable and honorable to you, is my sole
remaining duty.
There are many branches of the law which you will still find time to
investigate at leisure. Many years will probably elapse, before you
will be called to take the _sole_ management of any case involving
valuable rights or intricate questions. The land law, and the
perplexing minutiæ of chancery jurisdiction, will be of this
description. When engaged in such cases, you will commonly find
yourself associated with older and abler counsel, from whom you will
then obtain, at a glance, more insight into these difficult subjects
than I have been able to afford. Under such guidance, you will have
opportunities to investigate the law, with an eye to its application
to your case. You will then see the practical value of the principles
with which you have been made acquainted, and may execute your first
tasks in that line, as successfully as if you were already imbued with
every thing but that knowledge which nothing but study and practice
combined can afford.
But though, in regard to matters of this sort, a general acquaintance
with the grand principles of the law is as much as you can be expected
to carry to the bar, there are other duties which you must assume, in
a complete state of preparation. Let me particularize a few of these.
You will find it then of the utmost importance, to be thoroughly
acquainted with the science of pleading. I have not concealed from you
that the loose practice of our courts dispenses habitually with many
of its rules, and has done much to confuse them all. But they still
retain all their truth, all their reasonableness, and much of their
authority. The courtesy of the bar will indeed save you from the
consequences of any mistake you may make in the outset. But though
this may screen your errors from the public eye, they will not escape
the animadversion of your brethren. They will be prevented from
forming such an estimate of your acquirements, as will lead them to
recommend you to their clients, in the hope of obtaining from you
valuable aid. It is by such recommendations that young men most
frequently gain opportunities to make an advantageous display of
talent, and an introduction into that sort of business which is, at
once, a source of honor and profit.
It sometimes happens, (though, to the credit of the profession such
occurrences are rare,) that a young man, on his first appearance at
the bar, encounters adversaries who do not extend to him the
forbearance which youth has a right to expect. He is taken at a
disadvantage. His want of experience and readiness lays him open to a
more practised opponent, who ungenerously strikes a blow by which his
client is injured, and he himself is brought into disrepute. To him
who is really deficient in capacity or acquirement, such an attack is
sometimes fatal. To him who, on a fit occasion can retaliate on his
adversary, it is of decisive advantage. Mankind are generally disposed
to take sides with the weak and injured party, and to visit with their
indignation any ungenerous abuse of accidental advantages. A young man
therefore, thus assailed, is sure to have with him the sympathy of the
profession and of the public. They look, for a time at least, with
interest to his course. They are impatient to see him redress himself;
and, until he has done so, all the rules of comity and forbearance
which generally regulate the practice, are suspended in his favor.
_He_ is free to take advantages of his ungenerous assailant, which,
under other circumstances would be denounced as ungentlemanly. And
they would be so, because they would be in violation of the covenanted
rules of the profession. But between him and his adversary there is no
such covenant. A state of war abrogates all treaties. It follows that
all the maxims of courtesy which forbid any advantage to be taken of
slips in pleading, do not restrain him; and he is free to hold the
other up to all the strictness of the law. It is expected he should do
so. If he does not, it is concluded that he does not know how. But if
he has once carefully studied the science and made himself acquainted
with its principles, he stands on strong ground, and sooner or later
his triumph is sure. The older and more hackneyed his adversary, the
greater his advantage; for it is true in law, as in morals, that evil
practice vitiates the understanding. The _habit_ of loose pleading
unsettles the knowledge of the rules and principles of pleading, and
many nice technicalities are totally forgotten. There is not, for
example, one old county-court lawyer in a hundred, who remembers that
$100 means nothing in pleading, and that a declaration in which the
sum should be no otherwise expressed, would be so bad as to make it
doubtful whether even the sovereign panacea of our late Statute of
Jeofails would cure it. But though _this_ be doubtful, there is no
doubt that, on demurrer, it would be fatal. A demurrer then, being
filed and submitted _sub silentio_, it is probable that such a defect
would escape even the eye of the court. In that case a reversal of the
judgment would be sure, and a triumph would be gained that would
gratify the profession, and command the admiration of the multitude.
A thousand cases of the same sort might be suggested, where an old
practitioner, though on his guard, (as he must be against one whom he
has provoked to retaliation,) would, from a mere defect of memory, or
the established influence of vicious practice, fall into blunders
which would place him at the mercy of an adversary who has his
learning more fresh about him. How many, for example, will remember
where to stop the defence, in drawing a plea in abatement, or to the
jurisdiction of the court? How many ever think of the necessity of
entitling their pleadings? How many know how to take advantage of this
defect, even when it occurs to them?
But though you should escape the attack of any illiberal practitioner,
yet cases will occur, in which the nature of the controversy will
require great accuracy in drawing out the pleadings to a precise and
well defined issue. In such cases, no disposition to mutual or
_self_-indulgence in the bar, can prevent the necessity of pleading
correctly. In such cases, opportunities will be offered you of
reciprocating the kindness of your seniors, by lending them the aid of
your pen, and assisting them to recall forgotten technicalities. The
value of such aids will raise you in their esteem, establish you in
their regard, and ensure you their good offices. Out of such
circumstances grow alliances which are strength and honor to both
parties. A well read young lawyer, associated with one of less
learning but more experience, sagacious, vigilant, and versed in human
nature and the established though irregular routine of business, is
like the lame man mounted on the shoulders of the blind. Their powers
are not merely united; they are reciprocally multiplied; they fall
together habitually. Their joint success commands confidence and
practice, and finally the fruit of all their triumphs enures to the
benefit of the survivor.
But there is another point of view in which an intimate knowledge of
the rules and principles of pleading is of permanent advantage,
notwithstanding all the looseness which our practitioners habitually
indulge. It has been well said, that "the record is the lock and key
of the law." You will often find that without this interpreter, the
ancient books are sealed to you. It is by this alone that you will
sometimes be able to discover the point really decided. The concise
notes of the old reporters taken for the use of those already familiar
with the great principles and leading maxims of the science of
pleading, are perfectly unintelligible to the mere sciolist.
It often happens too, that a lawyer undertakes a suit or defence which
cannot be sustained, and thus involves his client in unnecessary
expense. Such blunders would often be avoided by a ready familiarity
with the science of pleading. The attorney has but to ask himself,
"how shall I frame the declaration or plea?" and the answer shows him
the impossibility of making good his case. He advises accordingly;
and, though the advice be at the moment unpalatable, it will be
afterwards remembered with gratitude and respect. No reproach is
keener or more just, than that of a client who has been decoyed into
expensive litigation by the rapacity of the disingenuous, or the
blunders of the unskilful. A place among those whose advice may be
relied on, is the safest and most honorable at the bar. It cannot be
lost without some great error. It gives a lien on posterity. The
father hands down to the son a respect for his constant and faithful
adviser. Friend communicates it to friend; neighbor to neighbor. The
showy qualities which are the gift of nature to others, are
neutralized by it. The plain man, destitute of such endowments,
becomes the patron, the dispenser of business and benefits to him
whose eloquence shakes the court--commands his gratitude, secures his
friendship, and, on all admissible occasions, makes this envied talent
his own.
There is another subject on which an ever ready preparation is even
more indispensable than on the subject of pleading. I mean that of
_evidence_. On this, of necessity, we have touched but lightly. It
would be properly, one of the principal subjects of a second course.
To stop short between a cursory notice of it and a thorough
investigation, such as we have not had time to make, might mislead the
student. He might overrate his knowledge if he found himself as well
acquainted with that as with other branches of the law; and supposing
he had enough, might venture to the bar without acquiring more. But
this is a topic of which a superficial knowledge will not do, even at
the beginning. It must be understood perfectly; it must be understood
distinctly; it must be wrought into the very texture of the mind, and
ever present there. The occasions on which this knowledge is wanted,
can rarely be anticipated. They start up like fire from the ground,
and he whose information is not various, exact and ready, is liable to
be disconcerted, embarrassed and disgraced. They often occur in those
apparently plain cases, which the partiality of friends sometimes
intrusts to the sole management of an untried lawyer. To be baffled,
through want of skill in such cases, is to injure those who have
sought to serve you. It mortifies and discourages your friends, and
what is worse, it disheartens you.
You will be often employed too, to set aside an office judgment, and
plead, _pro forma_, in a case admitting of no defence on the merits.
In such a case, where nothing is expected, your adversary, however
able, may be unprepared through some neglect of his client. Relying on
your rawness and want of skill, he may venture to trial. You strike at
the gap in his armor with the dexterity of a veteran; he is nonsuited,
and your success is the immediate source of honor and emolument. You
find yourself gazed at, followed, and employed by those who never saw
you before, and who know nothing of you but that, in a plain case,
admitting of no meritorious defence, you had just baffled one of the
first men at the bar. The consequence is, you are presently engaged in
business of more consequence, and if you acquit yourself well in it,
your practice is established and your fortune made.
To these two subjects then, of pleading and evidence, I advise you to
apply so much attention as to make you feel sure that you understand
them thoroughly. Having done this, let them be again revised
immediately before you go to the bar, and let them, in all the early
stages of your practice, be the constant objects of your attention and
study. You can never understand them too well, and your knowledge of
the last especially, can never be too ready. It is by ignorance on
these topics, that men lose causes they ought to gain. Such defeats
are disgraceful and ruinous. When the right of the case is against
you, it is your misfortune; but you are never blamed. But to be
defeated with law and fact both on your side, is to be weighed in the
balance and found wanting.
And here let me say a word of the cases which you lose, because the
law is against you. For these there is one short rule. "Though you
lose your case, do not lose your temper." It is easy for a young man
to argue himself into a conviction of the justice of his client's
case; but if you do not make others see it too, you must learn to
distrust that conviction. Remember that the argument which has
convinced you, without convincing others, came to you through the
favorable medium of self-love. A young man who doubts the justice of
his first cause just after having argued it, must be either very dull,
or very philosophical, or the case must have been utterly desperate.
On the other hand, remember that the judge is rarely exposed to any
undue bias. He can scarcely ever have a motive to do wrong; and he is
a man of tried integrity, practised to resist and overcome the
influence of such motives. Then remember that he is old, learned and
experienced, selected from among his fellows for his endowments; and
thus learn to acquiesce in his decisions with that cheerful
complacency which so well becomes a young man, distrustful, as all
young men should be, of his own judgment.
Above all things, never stimulate the dissatisfaction of your client.
You tell him he is wronged. He believes you. _You_ blame the judge.
_He divides_ the blame between the _judge_ and _you_. Was the judge
prejudiced _against you_? Do not say so, or men will not employ you to
practice before him. Was he ignorant? was he dull? was he inattentive?
You had the same chance to awaken his attention, to rouse his dulness,
to enlighten his ignorance, as your adversary. If you did not succeed,
another might, and your client will try another the next time. Let him
believe, if he can bring himself to do so, that he only failed because
the law was against him, and there is nothing to prevent his trying
you again. Better so, than to gratify him for the moment by catering
to his evil passions, at the risque of injustice to another, and
injury to yourself. Apart too from the injustice, prudence forbids
that any blow be struck at men in power, which is not well aimed, and
sure to take effect. He that throws up stones, endangers his own head.
"He that spits against the wind," said Dr. Franklin, "spits in his own
face."
There is another consideration to be regarded here. The profession is
a _unit_. Its respectability depends on that of the head. It is an
arch, of which the bench is the key-stone. Let them who should uphold
it, withdraw their support, and all will fall together. Would you
degrade the seat to which you aspire? Would you dim the lustre of that
honor, which is to be the brightest reward of a life spent in the
labors of your profession? Hardly more unwise is the youth, who would
revoke the prerogatives of age, forgetting that he shall himself be
old.
But there is a present advantage in a gentle and complacent
acquiescence in the unfavorable decisions of the court. It engages the
sympathy, the respect, and good will of all who witness it. Among
others it bespeaks the regard of the judge himself. However impartial
he may be, this will not be without its value. If he is seen to be
your friend, men will employ you, in the _hope_ that his friendship
may produce a bias in your favor. Your very enemies will serve you, by
charging him with partiality, in the hearing of those who may wish to
avail themselves of it by engaging your services. Besides, man is but
man. We lean to conviction from those we love. Why else is the
eloquence of a lovely woman so persuasive? We may man ourselves
against prejudice; but the very effort to do so unfixes the attention,
and the words of one who is odious to us are lost in air. But the
voice of a friend is music to the ear, and sinks into the mind. He is
a poor metaphysician who undervalues the influence of the affections
on the very sense of hearing.
It is of great importance, in this point of view, that you should not
misapprehend the relation between the bar and bench. A young man
entering into life, is apt to magnify the consequence and authority of
office; and he naturally falls into the belief that the incumbent is
disposed to presume upon it, and abuse its powers. There can be no
greater mistake than to apply this notion to a judge. The beautiful
fiction of Law, by which the members of the profession are considered
as brethren, of whom the judge is but the elder, hardly deserves the
name of fiction. There is no corps animated by a spirit so truly
fraternal, nor is there any member of it to whose comfort this spirit
is so essential, as the judge himself. Few men attain to that
elevation, without learning that the sanction of judicial authority is
opinion. The judge is armed indeed with the process of contempt. But
what is its true use? To conciliate the forbearance of others by his
forbearance in refraining from the use of it. In this view, it is
right that he should have it. But his comfort, his respectability, the
very stability of his office are secured, not by the power that he
_does_, but that which he does not exercise. Depend on it, among all
the brethren of your profession, you will find none to whom your
friendship will be so desirable as the judge himself.
Remarks of the same sort may be made with regard to your intercourse
with the members of the bar. You will find them for the most part
gentlemen and friends, disposed to lead you gently by the hand.
Requite their courtesy in kind. If an advantage is taken of you, I
have told you how to retaliate. You will have the whole bar on your
side. But such cases are rare. You will probably meet with nothing
illiberal. None will crow at you until your spurs are fully grown. No
sarcasm will be dealt out against you, unless by a junior like
yourself. In such case, in general, pass it by. It will be thought
that your self-respect restrains you from affording sport to the
by-standers, and you will rise in the respect of others. Men naturally
respect those who are seen to respect themselves. You may indeed be
sometimes provoked to retort, by attacks which will make a retort
necessary and proper. In that case, your previous habit of forbearance
will stand your friend. It will dispose others to presume you to be in
the right, and to approve your conduct. It will enable you to reflect;
to do nothing rashly; to choose your words; to measure the force of
your blow; and to strike without laying yourself open. To such
rencounters apply the advice of Polonius to his son:
"Beware
Of entrance into quarrel, but being in
Bear it, that the opposer may beware of you."
If you are compelled to strike, let no second blow be necessary, and
you will not soon be called to give another.
I might multiply remarks of this sort without end, and perhaps with
little profit to you; for it is too true, "that no man learns wisdom
by another's experience." I am bound to own that it is not by the
practice of these maxims that I have learned their value. But
experience has perhaps convinced me of it somewhat sooner, because
they were inculcated in my youth, by one whose advice I fear was never
justly appreciated until his voice was hushed forever. My suggestions
to you may answer the same end. If, when my head lies low, the
recollection shall come to your minds accompanied by the feelings it
awakens in mine, my labor will not be lost or unrewarded.
But there is one maxim learned in that same school, which no one who
expects to thrive by his profession must neglect. The success of a
lawyer and his honor as a man depend on his fidelity and punctuality.
I need not recommend these to you. But a single auxiliary rule, in the
observance of which there is perfect safety, may be of use.
"Whenever you receive money for a client, always consider that
_specific_ money as his. Set apart the identical dollars and cents,
just as you received them, done up into a parcel labelled with his
name, and accompanied by a statement showing the amount received and
the balance due after deducting your fees and commissions. Let a
counterpart of this statement be drawn up in a book kept for the
purpose, and always carried with you; and at the foot of this
counterpart, take your client's receipt." In this proceeding there is
something level to the apprehension, and obvious to the senses of all
men. It will engage confidence, and multiply in your hands that sort
of business, which, if not the most honorable, is the least laborious,
and not the least profitable.
And now, my young friends, we close a relation which has been to me
one of the happiest of my life. God grant it may prove equally
profitable to you. If it does not, the fault is in me. I have indeed
the satisfaction to know that my exertions are appreciated by you, at
more than their real value; and that wherever your lots may be cast,
you will long remember the months we have spent together with feelings
responsive to my own. It has been my endeavor to divest the subject of
our studies of its dryness, and to render it, if possible, less
unpalatable than you had expected to find it. The task was difficult,
but I hope I have not altogether failed. I have felt it my duty too,
to lay aside the pedagogue, and to disarm my office of all austerity.
In doing this I had but to yield to my natural disposition. The rules
of our institution indeed placed me _in loco parentis_. But the
relation of an elder brother was more congenial to my feelings. I am
happy to believe that it has been so filled, as to establish the
sentiments appropriate to it in each of our minds; and that, when the
infirmities of age shall overtake me, there is not one of you who
would not extend an arm to stay my tottering steps, as there is not
one on whose shoulder I would not lean with confidence.
But my method of instruction was not adopted merely because it suited
my disposition. I believed it most appropriate to the subject of your
studies. It in some measure prepares you to enter in its true spirit
into that relation to the heads of your profession, of which I have
spoken. You will find few judges to whom the authority of office will
not be as irksome as it is to me; and it will be in your choice to
establish, between yourselves and your brethren of the bar and bench,
the same sentiments which make our separation at once pleasant and
painful.
I cannot take leave of you without offering and inviting
congratulations on the distinguished harmony which has pervaded every
department of our venerable institution. It has been a complete
fulfilment of the reciprocal pledges passed at the commencement of the
course, "that you should be treated as gentlemen, and that you would
so demean yourselves." How far this desirable end has been promoted by
the peculiar character and structure of the society of this place, you
are capable of deciding. We must have been unwise, not to avail
ourselves of the aids afforded by the moral influence of a circle of
gentlemen and ladies, intelligent, refined, polite and hospitable,
zealous for the honor and order of the college and the happiness of
its professors and students. It is this ever present influence that
has enabled us to dispense with the rigor of discipline, elsewhere so
necessary. It is this which enables William and Mary College to
preserve its distinctive characteristics. In any other situation they
would soon disappear. The city and the college have grown together.
They are moulded on each other. Each is a part of each. Each is
necessary to the other. You might learn as much, or more, elsewhere;
but where else would you leave behind, from what other place would you
carry with you so much of those kindly affections, the cultivation of
which is not the least important part of education? On these we have
determined to stake the usefulness, the permanency, and the prosperity
of our institution, and in these we find a reward for our labors,
which nothing can take away.
For the Southern Literary Messenger.