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Tous les autres exemplaires originaux sont filmds en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et on terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sut la dernidre image de cheque micoficEie, selon le cas: le symbole — ► signifie "A SUIVRE", le symbole V signifie "FliM". Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le ncmbre d'images ndcessaire, Les diagrammes suivants illustrent la mdthode. t 2 3 1 2 3 4 5 6 NATIf^AL LlBKAllY CANADA Blj^.K>Iil QUE NATIONALE ^ AisiNUAL University Lecture ► " •^ "The Work of a Faculty of Law IN A University" BY 3 -^nt KRKDERICK PARKER WALTON, B.A. (Oxon.); LL.B. (Edin.) Advocate of the Scottish Bar, Dean of the Faculty of Law, and Professor of Roman Law, McGiLL University, Montreal. niontreal. The Gazette Pfintino Company. 1898. .1 • f "THE WORK OF A FACULTY OF LAW IN A UiNIVERSITY." Mr. Chairman, Mr. Principal, Members of Convocation, Ladies and Gentlemen: Wlion I was informed that I was to have the honor of delivering this year the University lecture, it seomod to me that it was an op- portunity not to be lost, of explaining, in general terms, what I re- gard as the proper work of a University Faculty of Law. I have taken this, thei-efore, as my subject, though [ am conscious that it is one upon which, perhaps, there is nothing very new to be said, un- less indeed one is to purchase novelty at the expense of truth. The Law Faculty of McCTill looks back upon a past, of which it is justly proud. It includes among its giaduates many men who have won for themselves distinguished positions at the Bar or on the Bench, and if you will allow mo as a comparative stranger to say so, it seems to me to say much for the loyalty and affection of its grad- uates that eminent judges and lawyers should be so ready to sacri- fice the scanty leisure of a busy life, in order to help their younger brethren to prepare themselves for professional life. I do not need to dwell here upon the noble and enlightened generosity of Mr. Mc- Donald, but for whom I am afraid the Law Faculty would have a hard struggle for exis'.encc. Mr. McDonald has monuments scattered about the campus more conspicuous than the rooms occupied by the Law Faculty. But it is unnecessary to remind anyone here that he has been our greatest — aim )3t our sole — benefactor, nor that only a week ago we received from him a further instance of his muniacence, for which wo beg to tender our grateful acknowledgment. But if the past of our Faculty is not inglorious, we hope that a still greater future awaits it. And it is not unprofitable from time to time to consider afresh what are the objects which we seek, and how far experience and observation might suggest any change in ouv methods. 2 Such a j-eviovv, if it does nothing else, may at least have the ad- vantage of enabling us to realize more distinctly the limits of the possible. And in the first place, I would begin wi(h the frank ad- mission that, in my opinion, it is impossible that a Faculty of Law should produce a fully equipped lawyer. This requires practice and experience of affairs, as well as theory. And indeed the theory it- self, which can bo given in courses of lectures, gradually acquires a fuller and richer meaning in the mind of the student, as ho sees it bit by bit illustrated and analysed in his subsequent practice. Wheth- er this is the case in other professional Faculties I do not presume to say, The first essays of the young doctor, unlike those of the young lawyer, are performed before no earthly judge. If we admit, then, that we cannot take a student at eighteen years old and turn him out at twenty-one an accomplished lawyer, the question remains, what can we reasonably expect to do for him ? To this I think we may reply generally: We can impress upon the mind of the student the fundamental principles of law. We can accustom him to ac- curate reasoning upon these principles, and the consequences which flow from them. Wo can illustrate them by comparison, and by anal- ogies taken from our own or other systems of law. Finally, we can trace for him the historical development of existing legal institutions. Here, at McGrill, in the course of three sessions, all the important topics of the Civil and Criminal codes and of the Code of Procedure are dealt with. Our programme also includes Roman Law, Legal History and Constitutional Law. There is an old maxim of very doubtful soundness to the effect that it is the pai't of a good judge to ox- tend his jurisdiction. It applies,no doubt, mutatis mutandis to a pvofos- sor. And asaprofes.sorofKomanLaw,! might perhaps be pardoned if I attempted on this occasion to magnify the importance of that subject. But I feel that here any such attempt would bo merely tilting against windmills. A knowledge of the Roman Law may in England, or in the United States, be something of a luxury. Here, at any rate, it is a necessity. The lawyers who are the most successful in practice are the first to admit the importance of a sound knowledge of the Roman Law. Even in the United States, where things are soon brought to the touchstone of practical results, the best lawyers recommend the study of the Roman law. Chancellor Kent said : "The Civil Law is taught and obeyed not only in France, Spain, G-ej-many, Hol- land and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of B'Aguesseau that the grand destinies of Rome are rot yot accomplished. She reigns throughout the world by her reason, after having ceased to reign by her authority." Chancellor Kent might have added to his catalogue, the Cape of Good llopo, and British Cruiana, where the Koman-Dutch Law provaih. Polhior devoted more than twelve years of his wonderfully laboi-ious life to his re ai-rangomont of Justinian's Pandects. The preface to that great work, though it appears under Pothier's name, was written by his friend and collaborateur, M. de Guionno. It contains an admirable vindication of the study of the Roman Law, as forming a neccssar}' part of a French la\v3'er'H education. The writer points out that little of value would be loft of the Droit Civil, if we were to take away that which it has boi-rowed from the Roman system. And he goes on to say, that it is impossible pro- perly to understand the rules of the French Law, without considering the source from which tliey are derived, and the manner in which they have been gradually developed. His logical and masterly statement is expressed in that fluent if not always strictly classical Latin, which was becoming a rare accomplishment in the middle of the 18th century. Pothier himself must liavo been among the last of the gi-eat law^'ci-s, who not only wrote Latin gracefully and easily, but was able to converse in that language. His frientl, Le Trosno, tells us that he accompanied Pothier on a journey to Rouen and Havre, which was almost the only occasion on which Pothier was induced to tear himself from his books. The two friends con- versed in Latin nearly all the time. No doubt, the comparative neglect of the Roman Law in the present day is in part due to the loss of any such familiarity with the language in wh ch it is written. There is one subject that forms part of the legal programme in many Universities, which is not covered in the outline I have just given. I refer to Natural Law, or JVuturrecht, for the true home of this study is in Germany, and it has never led more than a some- what sickly and precarious existence in other countries. It is possible, no doubt, to present in an interesting way, philosophical or metaphysical considerations as to the ultimate basis of law. I feel almost a sense of ingi-atitudo in speaking with any disrespect of this subject, when I remember the stimulating and ingenious prelections of the late Professor Lorimer, of Edinbui-gh, which I had the advantage of hearing. But as one ma}^ see things very plainly without understanding thoroughly the nature of sensation or perception, so one may be a very good lawyer, without having (lived very deep into the philoBOphy of the ultimate basis of law. Natural law, an c;onorally presented, deals with principles so lofty, and I'ormulatos rules so abstract, that it might perhaps bo called " stellar juiispiudence," for, if I may profane a fine lino of VVords- woi'th, its object appears to be '' to preserve the stars from wrong." There are indeed some cha.ming works on this subject. Perhaps, the most delightful is Culverwel's "Elegant and Learned Discourse of the Light of Nature," a book too little known. But to call them law books is an abuse of language, and I am afraid the very limited time at our disposal, makes it impossible to give a place to Natui-al Law in our curriculum. There is one other Kubjoct, for which at present no provisitm is made, which I think it would bo desirable to introduce. This is Medical Juris])i udence or Legal Medicine. This subject is includetl in most University Faculties of Law, and it has always seeinei to me to be of considerable utility. The lawyer, of course, cannot be ex|)ected to make a scientitic examination of a blood stain, tode'.ect the traces of poison, ov to judge whether a child was viable. J3ut about these and other kindred matters, it is an advantage to him to have received a little elementary instrnc- tion. If it does no more, it at lo.ist ramiliarizes him with some of the ordinary terms, which he is likely to hear afterwards in the mouths of medical experts, and it enlarges his horizon, by giving him a glimj)se into a branch of science so remote from his own. Having said so much shortly, as to the subjects with which our Faculty has to deal, and having so far described what it is or ought to be, 1 will adopt an old method, and say what we do not intend it to bo. I am sure I speak for my colleagues as for myself, when I say that we do not intend our Faculty to be a mere coaching establish- ment to prepare students lor the Bar examination. Of all the shallow and short-sighted views of education, there is surely none more shallow and more contemptible than that which lies in think- ing that nothing is worth learning which cannot bo put to im- mediate practical account. The student whose main anxiety is not to learn anything, which, as he would express it, will not "pay," is a deplorable spectacle. i do not think at McGill we have matiy such, but we want to exter- minate the species. In our Faculty we want to fill our students with generous enthusiasm for learning, with respect for knowledge patiently, painfully won, with largo and liberal views of life and its purposes, with the consciousness that they are preparing theuiselves for a noblo profession. We want to inspire thorn with a do.'^ii-e to play a worthy and stronuous part in the community, to add Ukmh to the number of those " Whom a thirst. Ardent, uiu|uenchiil)le lires, Not with tlie crowd to bu spent. Not without aim to go round, III jvn eddy of purposeless dust, Ert'ort unmeaning and vain." But certainly, law is in an especial de^'roo a profession, in which the most varied knowledge may be demanded at short notice. It is impossible to be sure beforehand what will or will not " pay." A busy lavryer may be occupied one day with a question involving antiquarian knowlediro of ancient customs. For the next, he may have to understand the intricacies of a new machine. The third day he may be confronted with a knotty point in the constitution of the Empire. 1 am not proposing to annex the Faculty of Applied Science. We shall not have a course of mechanics in the Law Faculty. But wo may do a little to give the student the scientific spirit and the pliability of mind, which will help him to cope with the difficulties which we hope await him. Nothing is so distinctive, I venture to think, of the truly scientific man, in whatever department, as the faculty of seeing, in every particular case, an exemplification of some general rule, and conversely of rapidly deducing from a general proposition, the particular con.sequences which it involves. It is precisely this faculty which it is the special function of scientific education to develop. It is as onishing sometimes to see the facility with which these operations are safely performed by men, whose minds, originally strong, have been thoroughly trained to avoid the fallacies into which the natural man— the " intellectus sibi permissm," as Bacon expresses it— is apt to fall. They appear to aiTive at their results less by a conscious process of induction and deduction, than by being able to clothe the particular in the universal, and to break up the universal into the particulars which compote it, by a single effort of thought. If anyone doubts that this is the merit of a really great lawyer, let him read the judgments of such men as Lord Mansfield or Sir George Jessel. And it is only the inexperienced who imagine that in the practice of the pleader glibnets of tongue and readiness of repartee, can ever make up for patient study of the facts of the case, and sound com- prohoiiHion of tho principloH of'law to ho applied to them. Tt i.s true the client is apt to mistake intellectual tiiewocUs for well-directed artillery. Hut tho judge is less easily deceived. Tho in?*tinct of the old advocate awakes in him, and makes him all attention to hear tho carefully prepared argument of the sound lawj'or. The showy rhetoi'ic ot the charlatan only lulls him into that slumhoi', which it is one of the chief arts of the Bench to conceal. And even the brain of tho client is sometimes cleared with his pockets, hy the payment of costs. From my own observation of 11 years in the courts, T am entirely convinced that tlio men who rise tc tho top of tho profession are, with few exceptions, the men whoso early education has been tho widest and tho deepest. The habit of study is seldom obtained in mature life. The 3'oung man who has acquired this habit, and to- gether with it, tho instinct of the scholar, lo take as littloas possible at second hand, but to explore for himself the sources from which a piinciple flows, is far nioio likely to become a good lawyer than if he had s])ent the same time in learning tho Codes and tho Statutes by heart. The maxim '^melius est petere fontes quam sectari rivulos" is one which every student should adopt as a guiding rule of practice. Jf our Faculty is to be worthy of its name, its teachers and students alikj mu>t have clear ideas as to tho ends and aims of edu- cation. And education does not consist in poui-ing into the torpid minds of students a mass of information, which they are to pour out again at the next examination. It consists, to use the noble image of Plato, in turning "tho eye of the soul " to the light. I ask you to look back upon A-our own experience of school and university. How much of what you then laboriously learned have you not afterwaids cheerfully forgotten ? Of the volumes of notes which you so painfully compiled how much has become part of the poi-ma- nent furniture of your minds? The real and solid gain which you derived from that period, was it not the intellectual stimulus, the brightening and vivifying of the mind, the love of good books, tho Kenso of the dignity and sweetness of a life, the main purpose of which is in the harmonious develop- ment of the whole man? It seems to me there never was a time when thei'e was greater danger of forgetting that a man is not edu- cated, merely by reason of living in an ago of mechanical invention, and that education itself is not a set of tools which we place in the hands of young men, to enable them to carve out commercial success. f Why HhouM \vc, who havo not, I Huppo.se, any of us, invoiitod any- thing' in particular, ^'o about in a stalo of fatuous soif-griitulation, bocauHO a fow men of j^cnius have faciliUitcd the mouns of locomo- tion or communication V The fact that I can Hpoalc to Boston through a telephone, docH not mtiko mo one whit bettor or elevorer than my grand fathor, who n\H)ko through a Haili.ig ship The day seomn to be approaching when wo mIuUI bo whisked about the planet with the velocity of torpedoes. But that will be nmall consolation if it finds us not worth whisking anywhere except into everlasting obscurity . r quite admit that a student is the bettor for some contact with the world. Practical pursuits are a valuable training for study. Some practical experience in necessary for the jjropcr appreciation of books. It may be argued that no such general educative effects can be anticipated from the teaching of a sub'Qct like law. But with this I can by no moans agree, Law is not so abstract as mathematics, and yet, a man who has learned to be a good mathematician has not only acquired in the processa certain amountof precise knowledge ; he has become a stronger, a more capable, abetter man. It is the busirle^sof every Faculty to make its teaching a vehicle of education in (he high- est sense of that much-abused word. To learn a law-book by heart is almost as profitless as to commit to memory a table of logarithms. The business of any Faculty is far loss to impart a number of facta, than to cultivate and develop in the student certain qualiiios and habits of mind. It is pos>ible in teaching law to explain the general principles, which, after all, ai-e not very numerous, in such away that an intelligent student will never forgot them. But even within the Codes and still more in the Statutes, there is a mass of law with which, in my judgment, it does not fall to the Faculty to deal, ex- cept in a very general way. No lawyer in practice dreams of charg- ing his memory with the minute details of the Merchant Shipping Act, or the Municipal Code, to take these merely as examples. Ho understands their outlines an 1 he knows where to look for the an- swer to a particular question when it presents itself. To teach min- utiffiof this kind to stu fonts is labor lost and deservedly lost. More- over, the view that a lawyer is a person who possesses a certain amount of accurate information upon the law, and can supply from memory an answer to any question which is put to him, is inade- quate, and indeed to h considerable extent fallacious. For the an- swer which is required is frequently not to be found in the books at 8 all. If tho law Is clearly Htatod in the Code there is no need of a judge to mako it clearer. Cadlt quaestio. It is where there is ara- 1 iguity, where two articles appear to conflict, or where the cas«3 which emerge- has not bean thought of by the Legislature that the servicesof a lawyer are required. Tho question cannot be solved by reference to the Codes, for the answer is not to be found there. It can only bo solved by understanding tho pi-inciples which under- lie the legal 8y::tem. To attain to a mastery of these is possible only lor the fow, and is the work of a lifetime. But a university course may do something to put tho student on tho right rails. I fancy I hear someone object, " Surely a iaw cui-riculum may include more than instruction in general principles." But I appeal with confidence to every lawyer of ton j'oars' experience to say if any knowledge is so valuable, oris so difficult to acquire in the "rough and tumble" of prac- tice. If the student has once acquired th's elementary frame- work he will be able in after-life to i-efer every particular consequence to its proper place. That which was at first abstract will become more and moio concrete, as he sees continually thegeneral rule illustrated by particular cases, ari.sing in the infinite diversity of ciicumstar.ces On the other hand, the young lawyer who has never firmly grasped the leading principles, is like a mariner without a compass. His experience is comparatively unprofitable for tho want of any means of co-ordiiiatin.o- the facts which he observes. It is preci.sely this knowledge of general ruloh, which is seldom picked up in a hap- hazard way iu practice. All of us who have spent a tew years at the bar, have come across men who never to the e.id of their lives acquired this kind of kaowlcdge at all. It happens occasionally that a man of this kind makesa tolerable shift to got along without law, by dint of common sense and force of character. But it is possible and indeed not rare, to possess neithei' law nor common sense, in which case tho chancer are not favorable. And tho.^o students whose common sense is the strongest, will be likely to gain tho most by a knowledge of principles, which, after all, are mainly based on the ac- oumulatod experience of tho community viewed in the cold li«''ht of reason. A Law Faculty, then, as I take it, has for its main purpose to give the student the framework which professional experience will afteiwards fill up. Legal principles, however, unlike those of an abstract science, can seldom be thoroughly grafpod, until we know how they came to be formulated in their present 8ba['e. I I 7 9 In no country can the law as it stands over bo fully understood without 8ome kriuwledgo of its historical development. As a French writer said of the Code Napoleon, " Les Codes dos peuples sefont aveo le temps, mais k propreraent parlor on ne les fait pas." Everywhore the past illumines the present. This is especially true where, as in this Province of Quebec, the law itself is derived from sources widely remote from each othei-. The main body of the law is, no doubt, French, but important branches of it are wholly or partly English, and one needs only to examine a few factums to see how necessary it is for the lawyer to be able to make use of both French and English authorities. And, moreover, the English- speaking lawyer seems to me — though upon such a subject I speak with the greatest diffidence— to be under a considerable dis- advantage in learning the Fionch law from an English translation. Legal terms, " terms of art," handed down from genei-ation to generation, acquire a kind of crust of associations. To translate a term of Fi-ench law by an Knglish word which is not a term of art is to strip it of half its mr uing. Such expressions as an " oppo- sition," "returns," " co. .ution nf ,-ent," do not convey half the meaning of " opposition," " rapports," " une rente constitute." The phrase 'en bon p6 e de famillo" seems strangely disguised in the dr_ ;3 of ''as a prudent administrator." Such examples might be easily multiplieil. 1 merely mention them because it seems to me that our English students would gain a great deal by having their attention constantly directed to the original phraseology. This is moi-e, however, than a mere matter of words. In oora- mencing my own studies of the French law proper I am ver3' conscious that [ must learn in a measure to c»-eato the atmos- phere in which the French student has grown up. The fundamental institutions of the Common law are deeply rooted in the manners and customs of the people. To one who has been familiar with them from childhood they have a reality and vividress, which they do not possess in a law book. I cannot help suspecting that our Eng- lish-speaking students are at some disadvantage, from the feeling that the P'rench lav/ is to theni a loieign system. That this may be got over, the examples of i.iany successful lawyers ai i honored judges sufficiently prove. But I am sure, those who, like myself, are conscious of this intellectual " aloofness " to begin with, should seriously set themselves to overcome it by familiarizing themselves with the historical development of the French law. And here I should like, with your permission, to venture for a moment upon 10 ground where 1 know it is incumbent to wall< veiy warily. But it does seem to me, that, in our differences of race and religion here in Montreal, the law lecture rooms might fairly be treated as neutral ter- ritory. I cannot see why, in treating of law in a scientific way, a word need bo said which can wound the most tender susceptibilities. And it is surely an advantage that law students of both races should have an opportunity of getting to know one another, and of forming friendships with one another, those durable friendships of youth, which are the best possessions given us by the gods. Our Faculty has always maintained, and 1 am sure will continue to maintain, the most cordial relations with the Faculty of Laval, w Hh which it enters into friendly rivalry. I hope that my rough statement of the aims of a Law Faculty will incline you to think that they form a proper part of the work of a university. This is not always admitted. There are on both sides of the Atlantic some lawyers who hold the opinion that the teaching of law does not properly fall within the province of the university. Let the university make it her busi- ness to unroll before her students the golden pages of the poets, the historians and the philosophers of the ancient world. Let it be hers to enable them to track those bloodless phantoms, x and y, through mazes all but inextricable. Let the professor of architecture build for tliem his castlco in the air, his cloud-capped towers and gorgeous palaces and solemn temples. The dark places of mirid may be explored for them by the professor of mental philosophy, those of matter by the professor of mining. In the Faculty of Applied Science, nature is to bo taken with des- perate machines by ,he throat and tortuied until she gives up her secrets. In the Faculty of Medicine every appliance that ingenuity can in- vent and money can purchase is to be placed at the disposal of an army of specialists. Air, earth and sea are to be ransacked to procure obscui'e birds, insects, beasts, reptiles and fishes, which may illustrate the action and re-action of structure and function and throw light upon the history of animal life, in ages when the problems of existence were simple and solved by j-udo met ods. I have only glanced _ a few of the many sided activities of a great modern university sue. as this. That of all the sciences, law alone ought to stand naked and shivering outside her gates, seems a hard saying. But to attempt to divoi-co the study of law from the univer- ] n ity is surely the blackest ingratitude. No science has owed so much to the universities. It was in a university that the first great re- vival of legal studies arose Most of the best writers on law have been university professors. The universities alone kept alive the Racrcd fire through many a cloudy and dark da3\ Let me justif3' in a few words those generalities. The great fabric of the Koman law was completed at a time when the empire, of which it is the most enduring monument, was already tottering to its fall. Most of the West had fallen to the Frank, the Burgundian, and the Vandal. NoLhorn Italy had been lost and again recovered. But it was overrun by the Lombards onl}'' three years after Jus- tinian's death. In the horror of black darkness which settled down over Europe from the 6th to the llih centurj'', it seemed as if the Justinianian compilations, and with them all scicntitio study of law, bad perished. 1 am aware that Dr. Maitland has said that when people speak of the Dark Ages they mean ihe ages that are dark to them. In spite of the taunt a lawj'er must confess that for him the darkness of the period is sufficiently palpable. JN'ot that it was equally profound in all places, and at all times during these long ages. Here and there, a flickering ray from some religious house or monastic school shoots up into the night. And in Northern Italy, especially in the cities of Lombardy,the conditions of classical art and culture never utterly died away. Speaking of Italy, Ozanam finely says that the dark age was but " une des ces nuits lumineuses ou les dernit^res clart^s du soir se prolongent jusqu'aux premieres blancheurs du matin." But the learning which lingered hero and there was not legal learning. Fitting has indeed made a desperate attempt to show that the books of Justinian were studied at Kome and Ravenna, and even at Orleans. With the zeal of a partisan he has claimed that there is suflficient evidence for the existence, during this period, of genuine schools of jurisprudence in these places. There seems t > be ground for believing that some rude and unintelligent copies of the Institutes and of part of the Code date from somewhere aboni the tenth cent- ury. But the superstructure which Fitting has erected on such slight foundations has, I think, been finally shattered by the powerful attack of Professor Flach, of Paris. Even Fitting hai'dly ventured to assert that any intelligent use was made of i,he Digest before the revival at Bologna, to which I shall presently refer. And the Roman law without the Digest is much like the play of Hamlet without the Prince of Denmark. 12 Between the Gth and the 1 1th century all the instruction given in law was merely as part of the study of grammar. Boys of twelve years old, childrr^n, as Flach indignantly calls them, learned the meaning of a few legal terms, as explainol generally by wildly erroneous etymologies, before they were considered old enough to approach the study of rhet)ric. Tney were taught that " crimen " is derived from carendo, apparently because wo have to go without a thing which a thief takes from us, that " lapis" comes from liodons pedom, because it is painful to kick a stone, that "argumentum" is equivalent to argute invontum. Such information you will admit was equally worthless, whether it was called grammar or law. At Bologna, and probably in other of the mediaeval schools teaching of a slightly more advanced kind came to be given under the name of Dictamen. The lecturer in Dictamen taught composition in verse and prose. His prose course comprised the rules for private letter- writing, au early form of the books called " Polite Letter Writers," which may still be seen in the windows of little shops in country villages all over llJurope. As supplementary to his course on letter- writing, he gave a set of rules for drawing up legal documents. The city statutes of Bologna directed that candidates for the pro- fession of a tabellio or notary were to bo examined as to their