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Entered, according to act of Congress, in the year eighteen hundred and seventy-three,
BY WEED, PARSONS AND COMPANY,
APR 20 1966
THE ALBANY LAW: JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
to the extreme; for, speaking of it, he said: “Since
Sulpicius, I shall probably leave as many volumes of
works as he is said to have written." That number
Whether Sir William accomplished the task or not
we do not know, nor is it of moment. Most men, PLACING.
to do it, would require the strength of Hercules, and Whether or not the use of commonplace books is 1 the days of the planet Jupiter. beneficial has been the fruitful subject of diverse opin- Among the opponents of the practice was that ions. A number of men whose opinions we have sound thinker, and common sense philosopher, Dr. been accustomed to greatly respect have been earnest Johnson, who remarked: “Many readers I have advocates of their utility, while others, no less worthy found unalterably persuaded that nothing is certainly of attention, have condemned them, as commonly remembered but what is transcribed; and they have, used. Among the former we may mention so vener- therefore, passed weeks and months in transferring able an authority as Fulbeck, who said: “Common- large quotations to a commonplace book. Yet, why placing is a profitable course under titles to digest the any part of a book, which can be consulted at pleas•cases of the lawe, into which they may transfer such ure, should be copied, I was never able to discover." things as they have either heard or read. Neither is Idler, No. 74. And the illustrious Gibbon agreed it safe to trust to other men's abridgments, which are with the learned doctor, and said: “Commonplacing little available to such as have read a little; but that is a practice which I do not strenuously recommend,'' which we by our owne sweat and labor do gaine, we Gib. Misc. Works, 97. That charming writer, Samuel do firmly retain and in it we do principaliy delight; Warren, in his “Law Studies," likewise opposed this and I am persuaded that there hath never been any system of transcription; and Professor Washburn learned in the lawe and judicial, who hath not made than whose no judgment could be sounder-in his a collection of his own, though he hath not neglected excellent "Lectures on the Study and Practice of the the abridgment of others.” And Sir Matthew Hale Law," while conceding the utility of commonplace said: “ Whatever a student shall find in the course of books, "if judiciously used,” thought that they his reading he should abstract and enter the substance "should be used sparingly and for special purposes of it (and most especialiy of cases and points resolved) only.” “But it is an entire mistake,” he remarks, into his commonplace book, under their proper titles;" to suppose that writing a thing in a commonplace and he proceeds to give six separate advantages book is helping the memory to treasure it up as a attending this course, the last of which we quote, as part of one's knowledge. The memory soon grows the only one, in the view we take of the matter, that content with knowing that the thing is safely laid up can really be called an advantage (his plan being obvi- in such a book, and will not trouble itself to keep ously to transcribe the gist, if not the language, of one's charge of it any longer; and the consequence is, that reading). It is as follows: "6. He (the student) will the memory thus dealt with loses its tenacity and be able, upon any occasion, suddenly to find any grows weaker, just in proportion as it is accustomed thing he hath read without recourse to tables or other to remit its efforts to retain what is committed to its repertories which are oftentimes short, and give a charge.” lame account of the subject sought for.”— Pref. to Now we most heartily agree with the oppoRolle's Abridgment.
nents of commonplacing, if by that term is meant Sir William Jones was another believer in common- -as most of its advocates and opponents that we have placing for the lawyer, and was, apparently, one of the mentioned have regarded it ---- a mere transcription of few willing to endure the drudgery of it when carried the important passages or principles one reads. Life
is too short and books are too numerous and access- of time in the often vain search for authorities which ible for that; but there is another kind of common- he remembers to have seen, but does not remember placing that we know to be of great value, especially where. To use a homely illustration, he will have to the lawyer. Dr. Johnson, we believe it was, who
bird in the hand,” which is said to be “better said that “knowledge is of two kinds. We know a than two in the bush." Every decision of any imsubject ourselves, or we know where we can find portance read should be so indexed, for, though its information upon it." The knowledge of every law- use may not at the time be apparent, it will serve a yer at least, in these days of many books, must con- purpose at one time or another. Wirt said: “Old sist mainly of the knowing where to find a thing. fashioned economists will tell you never to pass an Especially is this true of the reported decisions. We old nail or an old horseshoe, or buckle or even a pin, all of us know that we have frequently read a decis- without taking it up, because, although you may not ion on some question not of present interest to us, want it now, you will find a use for it some time or and which left a faint impression on the memory, but other. I say the same thing to you with regard to which we have afterward, when it became important knowledge. However useless it may appear to you to us, searched for in vain. And just here is where at the moment, seize upon all that is fairly within the commonplace books becomes valuable to the law- your reach, for there is not a fact within the whole yer. As an Index Legum or memoria technica its advan-circle of human observation, nor even a fugitive anectages are incalculable; as a mere repository of princi- dote that you read in a newspaper or hear in converples and passages in extenso it is but a waste of time sation, that will not come in play some time or other; and a foe to the memory. Let the student or the and occasions will arise when they will involuntarily lawyer- and no one is too old to reap advantage from present their dim shadows in the train of your thinksuch a course take an ordinary blank book and set ing and reasoning as belonging to that train, and you apart certain pages to each of the different titles of will regret that you cannot recall them more disthe law, and then, as he reads the reports, make a tinctly.” In the law is this especially true, and the reference under the appropriate heading to the sub-plan that we have suggested will enable the lawyer ject-matter of each decision of any importance, and to have such a full control of his resources as he can to the volume and page where it is to be found, and acquire in no other way. he will, in a short time, have a book that will be of constant utility to him, and the utility of which will be constantly increasing. The title of the action need
CHIEF JUSTICE TANEY. not be given, but a very brief statement or rather Two recent events — the unveiling of the statue “catch line" of the nature of the opinion should be of Chief Justice Taney, at Annapolis, and the publirecorded. Each reference should not occupy over a cation of his memoir, call attention once more to one line, and the lines may be numbered for the purpose who, for nearly forty years, acted a prominent part of cross reference.
To illustrate our meaning we in the public affairs of the country; who was, for copy a few references from a book that has been so
twenty-seven years, the chief justice of a court which kept for years by a gentleman eminent at the bar and M. de Tocqueville spoke of as “standing at the head noted for the readiness with which he can turn to an of all known tribunals," but whose long public serauthority on almost any question.
vice, great ability, unquestioned integrity and devoted
loyalty were all forgotten, when the partisan passions 1. Grantee of husband, by quit-claim deed, not, in
of the people were aroused. action for dower. 1 Comst. 242; 1 Story's Eq., $ 130; 1
Roger Brooke Taney was born in Calvert county, Am. Law Reg. N. S. 604.
Maryland, March 17, 1777. His father, Michael 2. Presenting petition for discharge not estopped Taney, owned a good landed estate, and had an infrom setting up release. 16 N. Y. 560.
come sufficient to enable him to live comfortably, and 3. Mortgagor not, by judgment in favor of prior
to educate his children. His mother was the daughter mortgagee. 16 N. Y. 575. 4. Maker of note is if certifies note good. 7 Abb. 31;
of Roger Brooke, a wealthy land owner on Battel 26 Barb. 611.
Creek, and was, like his father, a Roman Catholic. 5. Defendant who induces plaintiff to bring suit is. The severe laws which were enacted against this sect 21 Wend. 96; C. & H.'s notes, 458; 29 Barb. 156; 6 Hill, during the reign of William and Mary, and which 534; 36 N. Y. 514; 47 N. Y. 493.
extended into Maryland, rendered it practically im6. Defendant who induces plaintiff to believe prop- possible, in many instances, for Catholic gentlemen erty in his possession not. 9 Cush. 490. 7. One joint contractor not by admission of other,
to educate their children; and Mrs. Taney's educaunless partners. 2 Comst. 512.
tion, so far as mere book-learning was concerned, 8. None can take place by expression of opinion on was a very limited one. But her son, with a filial question of law. 2 Seld. 253; 2 Comst. 19.
devotion which marked his whole life, and when near He who shall faithfully carry out such a plan will the close of that life said of her, that "her judgment soon find that his Index Legum is the most valuable was sound, and she had knowledge and qualities far book in his library, and will save himself a vast deal ! higher and better than mere human learning can give.
I remember and feel the effects of her teaching to cedent." Those were the days when pleading was a this hour."
science — the pride of the bench and the bar — and to At the age of eight years young Taney was sent, be unskilled in it was to be ignorant of the law. with the other children, to a school kept in a log The judges of the general court at that time wore cabin three miles distant, where reading, writing and scarlet cloaks, a gay costume, surely, for a dignitied arithmetic were the only subjects taught, the principal tribunal. Among the then leaders of the bar of school books being Dilwurth's spelling book and the Annapolis were Luther Martin, Philip Barton Key, Bible. They walked when the weather was pleasant, John Thompson Mason, John Johnson (father of and when it was not stayed at home. Later he was Reverdy Johnson) and Arthur Shaaf, great lawyers placed at a grammar school in the county, where he in their day, but whose names are now hardly known, remained only for a short time, the teacher- a stark at least outside their State, so ephemeral is the repulunatic — having been drowned in attempting Peter's tation of most of the great lights of the profession. feat of walking upon the water. Soon after he was Luther Martin is represented as a lawyer of unusual fifteen, Taney was sent to Dickinson College, Carlisle, ability — the acknowledged head of the Maryland where he devoted himself so sedulously to his studies bar — and, in many respects, a greater than Pinkney that on graduating three years later he was appointed (who was then abroad), but addicted to stimulants valedictorian — the highest honor conferred at the and careless of fame. He was the chief counsel in time. Among his teachers in college was Charles defense of Aaron Burr, and conducted the cause with Huston, afterward and for many years one of the masterly skill. But, after a most successful and lucrajudges of the supreme court of Pennsylvania. tive practice, he died a subject of charity. We notice,
Having determined to enter the profession of the in passing, a curious statute of Maryland, which indilaw, Mr. Taney, in the spring of 1796, went to Annap- cates how highly his abilities were appreciated in his olis and entered the office of Jeremiah Townley Chase, day and generation. It provided that “each and then one of the judges of the General Court of Mary-every practitioner of law in this State" should pay land, where he remained for three years, — “studying annually five dollars a year for a license to practice, closely," as he says, — when he was admitted, in his the proceeds of this tax to be devoted, through trustwenty-second year, to the bar. Of his place of study tees, to the use of Luther Martin. he says: “My reading in the office of a judge, instead Speaking of his student life, Mr. Taney said: "I of a practicing lawyer, had some advantages, but, upon have, for weeks together, read law twelve hours in the whole, was, I think, a disadvantage to me. It is the twenty-four, but I am convinced that this was true it gave me more time for uninterrupted study, mistaken diligence and that I should have profited but it gave me no instruction in the ordinary routine more if I had read law four or five hours, and spent of practice, nor any information as to the forms and some more hours in thinking it over and considering manner of pleading further than I could gather it from the principle it established and the cases to which the books. In the office of a lawyer in full practice, it might be applied.” He also abstained entirely the attention of the student is daily called to such from going into society, which he afterward thought matters, and he is employed in drawing declarations was a great mistake, as he missed that ease and self and pleas, special and general, until the usual forms possession in conversation so important to the lawyer, become familiar to his mind, and he learns, by actual but to be gained only by mingling with the world. practice in the office, the cases in which they should We commend this early experience of the late Chief be respectively used, and what averments are material Justice to the law student, and perhaps it may not and what are not. The want of this practical knowl- prove unprofitable to those older in the profession. edge and experience was a serious inconvenience to Time and again has it been recorded by men who me, and for some time after I commenced practice I did have achieved success in the profession that law is not venture to draw the most ordinary form of a dec- not to be learned by constant reading of books; that laration or plea without a precedent before me; and if much study, without reflection and digestion, is little the cause of action required a declaration varying in more than a weariness of the flesh, and that a cloisany degree from the ordinary money counts, or the de- teral life is not that best calculated to success at the fense required a special plea, I found it necessary to bar. examine the principles of pleading which applied to it, Mr. Taney's first effort at the bar was made in the and endeavored to find a precedent for a case of pre- mayor's court of Annapolis, in an action of assault cisely that character; nor was it so easy, in that day, for and battery. Naturally timid, and morbidly sensian inexperienced young lawyer to satisfy himself upon tive, his embarrassment on the occasion was, as dea question of special pleading. Chitty had not made scribed by him, something painful. He says: “I his appearance, and
you were obliged to look for the took no notes, for my hand shook so that I could not rule in Comyn's Digest or Bacon's Abridgment, or have written a word legibly if my life had depended Viuer's Abridgment, and the cases to which they on it; and, when I rose to speak, I was obliged to referred, and I have sometimes gone back to Lilly's fold my arms over my breast, pressing them firmly Entries and Doctrina Placitandi, in searching for a pre- against my body, and my knees trembled under me