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 ADDRESS 
 
 IlKLIVKUKl) in* 
 
 THE HON. A. G. ARCHIBALD, C.M.G., Q.C., LL.B., &c. 
 
 At the Opening of the Law Sshool, 
 

 ADDRESS 
 
 Delivered by HON. A. G. ARCHIBALD, Q. C, C. M. G., &c., on the 
 30tli day of October, A. D. 1883, on the occasion of the Open- 
 ing of a Law School in connection with Dalhousie College, 
 Halifax, Nova Scotia. 
 
 We are met this evening on an o( :asion of great interest. 
 A branch of collegiate education, not hitherto attempted in 
 this Province, is about to be opened. 
 
 The munificence of one of Nova Scotia's worthiest sons, has 
 enabled the Governors of Dalhousie to add the subject of law to 
 the curriculum of studies that may be pursued at the University. 
 Leading lawyers among us, including Judges on the Bench, 
 have seconded the effort. In a spirit of devotion and self-sacri- 
 fice (engaged as they are in the onerous duties that devolve on 
 Bench and Bar) they have undertaken to contribute to the 
 efficiency of the School. They recognize the principle which 
 Bacon lays down in such cases when he says : "I hold every 
 man a debtor to his profession — from the which, as men of 
 course do seek to secure countenance, and profit, so ought they 
 oi duty to endeavor theaiselves by way of amends, to be a help 
 and ornament thereunto." 
 
 There is one point, however, on which the Faculty have erred, 
 if I may be permitted the use of such an expression. They 
 should, for an inaugural address, have secured the services of a 
 gentleman, better fitted than I can pretend to be, for the dis- 
 charge of that duty. They have, among themselves, men who 
 could have done justice to the subject. If, though not till after 
 more than one remonstrance, I have yielded to the wishes of the 
 Faculty, it is not because I do not feel that the service will suf- 
 fer by the inefficiency of its execution, but because I acknow- 
 ledge in Bacon's phrase, the debt I owe my profession, and 
 must not when called upon shrink from the endeavor to be a 
 "help," however little I may hope to be "an ornament thereunto." 
 
In the history of education it is surprising that the science 
 of law should ever have been thought unworthy of a chair in a 
 University. "It is a science," says one of its ablest expounders, 
 •'which distinguishes the criterions of right and wrong, which 
 teaches to establish the one, and to prevent, punish, or redress 
 the other; which employs in its theory, the noblest faculties of 
 the soul, and exerts, in its practice, the cardinal virtues of the 
 heart ; a science which is universal in its use and extent, ac- 
 commodated to each individual, yet comprehending the whole 
 community." 
 
 The same eminent writer says in another passage : "I think 
 it an undeniable position that a competent knowledge of the 
 laws of thft society in which we live is the proper accomplish- 
 ment of every gentlemen and scholar, a highly useful, I had 
 almost said, essential part of liberal and polite education. And 
 in this I am warranted by the example of ancient Rome, where, 
 as Cicero informs us, the very boys were obliged to learn thj 
 twelve tables by heart, as a ' carmen necessarium' or indispen- 
 sable lesson, to imprint on their tender minds an early know- 
 ledge of the laws and constitution of their country.'' Yet what 
 aid do the collegiate institutions of this Province hold forth to 
 our youth who desire to have some knowledge of the Law and 
 Constitution under which they live.-* None whatever— and, as 
 for that class of young men who are entering upon the study ot 
 the law as a profession, happy are they, if they serve their time 
 with a Master who has leisure and inclination to help them over 
 the initial difficulties of the study. Without such aid — and we 
 fear, the number of pupils who receive it, is very limited, a 
 student must be content with making slow progress in the rudi- 
 ments of his profession, or else he must attain his knowledge at 
 '^.n expense of time, of effort and of energy, which, if incurred in 
 any other pursuit, would justly be considered wasteful and ex- 
 travagant. 
 
 Sir Edward Coke, in his quaint way, gives what he considers 
 as a proper apportionment of the day for a law student. 
 
 Six hours to sleep, to bw's grave study six, 
 Four spend in prayer, the rest on nature fix. 
 
But us from year to year, from generation to generation, 
 there is an accumulation of the materials which have to be stu- 
 died, there is reason to fear that this apportionment may not be 
 strictly observed — and that as time rolls on, a tendency may 
 grow to enlarge the time allotted for work, and abridge that as- 
 signed for prayer. 
 
 Sir William Jones makes a somewhat different division of the 
 day. Referring to the couplet of Coke, which we have quoted, 
 he says, " rather 
 
 Six hours tc law — to soothing slumber seven, 
 Ten tc the world, and all to heaven." 
 
 In his opinion the spirit of devotion should not prevail dur- 
 ing four hours only, to the exclusion of the rest of the day. 
 It should hover over every hour of the twenty-four. 
 
 There is no question that the religious element should enter 
 largely into the composition of a lawyer's mind, but, if we may 
 rely on the facts of history, we have reason to fear that, at all 
 events, in the times preceding ours, lawyers have not given due 
 heed to the precepts of either of these sages. Be that as it may 
 they do not, as a body, seem to have derived from their religious 
 exercises all the benefit which so much devotion should have in- 
 sured. 
 
 Of the work to be done, in the orthodox six hours a-day, sanc- 
 tioned by the authority, alike of Coke and of Jones, the student 
 will be able to form a better judgment after having his mind 
 turned for a iew minutes to the various Branches of jurispru- 
 dence which constitute the municipal law of England — the basis 
 of our own — and to the various sources from which it is derived. 
 
 First of all then we have the "Common Law," which Black- 
 stone describes as "that admirable system of maxims and unwrit- 
 ten customs, which is known by the name of the common law, as 
 extending its authority universally over the ivhole Realm^ 
 
 Some of the doctrines of the common law have undoubtedly 
 such an origin — Blackstone indeed traces a few of such back 
 to very early ages. But in the confusion arising from the various 
 invasions and conquests of England, beginning with that of the 
 Romans and ending with that of the Normans, intercalated as 
 
these were with other invasions and conquests by Picts, Jutes, 
 Anglo-Saxons and Danes, and the internecine quarrels on Eng- 
 lish soil, between the latter races, it is difficult to suppose that 
 there was in early days any very considerable body of customs 
 which prevailed uniformly over the whole of a country whose 
 population was made up of materials so heterogeneous. Some 
 customs and some rules, connected with matters of daily necessi- 
 ty there certainly were, which chrystallized into that form, but 
 the phrase 'the common law,* is understood to comprehend 
 much more than these. The idea underlaying the expression — 
 the idea in the mind of Counsel when addressing the Bench — 
 and in the mind of the Bench when addressed by Counsel, is 
 that there is in existence and has been irom time immemorial a 
 vast body of maxims and doctrines, having the force of law 
 which will meet and appl}' to any and every case that can come 
 before the court. The English law is, or rather has been, full 
 of Fictions, and this is one of the boldest of them. In the early 
 history of England, Fiction was the hand-maid of Justice. By 
 Fiction only could law, which, in its nature, is fixed and stable, 
 be made to keep pace with society, which in its nature, is 
 changeable and progressive. 
 
 Many of these Fictions, from that of the Common Recover- 
 ies of the Sixteenth Century, with the mythical Common Vouch- 
 ees, down to the well remembered John Doe and Richard Roe, 
 of thirty years ago, have in their days served useful purposes. 
 They enabled the courts to free themselves from the shackles 
 of doctrines that had fallen behind the times — and in certain 
 cases to administer justice by a side wind, when Lhey could not 
 do it directly. By and by, however, when Law, through the 
 aid of Fiction and of another auxiliary to be mentioned presently 
 had made great progress, the Legislature stepped in and 
 swept away a huge heap of make-believes, and enabled the courts 
 to do directly, what formerly they could do only by pretences 
 and subterfuges. Th e courts applied to such judicial inventions 
 the maxim that 'In fictione juris semper existit equitas.' They 
 permitted the use of them only when they subserved the objects 
 of Justice. But even this permission implied, that the law, as it 
 stood, was wrong or imperfect — that to administer it in that 
 
form, would work injustice — that to avoid this, it was proper as 
 Broom puts it, in his Maxims, "to make an assumption that a 
 thing was true which was not true, or which was as probably 
 false as true." 
 
 A considerable part of what has been called the common 
 law, had its origin not in universal customs, nor in ancient statutes, 
 nor in any other recognized source of law, but was really and 
 truly the creation of the Judges ; as much so as if power had 
 been expressly conferred on them to make law, where there was 
 none, or to settle it where it was doubtful. Sir James Mackintosh 
 says, that "the Law of England has been chiefly formed out of 
 the simple principles of natural justice, by a long series of 
 judicial decisions." 
 
 He might have added that in some of those decisions, we will 
 not say in any great proportion of them, the judge, in early days, 
 was governed by principles derived neither from immemorial cus- 
 tom, nor tradition, nor ancient practice,nor natural justice,nor any 
 other authority of indigenous growth, but from a code which he 
 ignored and affected to despise. The Judges and Parliaments 
 of those days, alike resisted the adoption of foreign laws. 
 "Nolumus leges Angliae mutari," was the motto of the Barons 
 assmbled at Merton,and the Courts affected to share the feelings 
 of the Senate. If, therefor, they appropriated from a foreign 
 code any doctrines and principles which, however sound in 
 themselves, had not yet found their way into English jurispru- 
 dence, it was necessary to suppose that they derived them from 
 that vast mythical collection of maxims and unwritten customs 
 to which Blackstone refers. The Clergy of the day were striving 
 to introduce the Civil Law into England, and this course of 
 the Judges reconciled the opponents of the Clergy to doctrines 
 and principles which they would not have tolerated if there 
 source had been known. 
 
 Good service was done to the English law by the work of 
 Bracton. "Do consuetudinibus et legibus Anglicanis." composed 
 about the middle of the thirteenth century, almost at the very 
 time that the Barons assembled at Merton were making their 
 celebrated declaration. This work is itself an illustration of the 
 extent to which English Law has been moulded by the hand of 
 
fiction. It is not necessary to go the length of Sir Henry- 
 Maine, '.vho, in speaking of this work, (and there should be no 
 better authority) says of it. 
 
 "That an English lawyer of the time of Henry HI. should 
 have been able to put off on bis countrymen as a compendium of 
 English law, a treatise of which the entire form, and a third of the 
 contents were directly borrowed from the Corpus Juris, and that 
 he should have ventured on this experiment in a country wh'jre 
 the systematic study of the Roman law was formally proscribed, 
 will always be among the most hopeless enigmas of English 
 Jurisprudence." 
 
 And yet this work, owing much, as undoubtedly it did, to a 
 code that had no force in England, the study of which was 
 actually prohibited, was treated as a repository of ancient 
 customs and met with the most marked favour. Great numbers 
 of manuscript copies were made and scattered over the realm. 
 Many of these are still in existence. There are eight of them 
 in the Book Department of the British MiiSeum at this moment. 
 
 Two centuries however had still to elapse before the inven- 
 tion of printing, and still another before this book was to be put in 
 type. In that form it has become a recognized exponent of the 
 Common Law, and on it, largely, are based the subsequent 
 systematic treatises on English Law. 
 
 The Common Law can hardly, therefore, be said to be, as 
 the theoi/ was, a code in existence from time immemorial, not 
 written indeed, but locked up in the breast of Judges, who 
 let out from time to time so much of it as was necessary for the 
 adjudication of the particular cases before them. 
 
 By their law-making power, the Judges not only created law 
 when there was none, but sometimes by the aid of their fictions, 
 they found out a way indirectly, to repeal acts of Parliament, passed 
 in the most solemn form. The fiction threw a decent veil over 
 the usurpation, and probably was treated as fact by the rude and 
 illiterate men to whom the functions of legislation in early times 
 belonged. By-and-by, when the general scheme of municipal 
 law had acquired some degree of completeness, the necessity for 
 judge-made law, grew less and less urgent, while on the other 
 hand the improvement and progress of society rendered it no 
 
longer necessary that the functions of the legislature should 
 exercised by any body but itself 
 
 While on this subject permit me to spy, that there is so 
 thing in the principles which govern our judicial decisions adv 
 to the creation of a symmetrical system of law. With us 
 judgment on a case before the Court depends upon the spe 
 circumstances of the individual case. A judge must be un 
 stood as deciding only the points in controversy in that c 
 To them alone the arguments of the counsel are to be dircc 
 On them alone the decision of the judge is authoritative. I 
 goes further, and gives an opinion beyond what the case requ 
 this is an 'obiter dictum' without authority and is callec 
 qu«:^stion whenever a case arises which really involves the p 
 to which the ' obiter dictum ' referred. So far as this conci 
 the question directly in controversy, the decision of the ju 
 establishes the law and is considered binding in subseqi 
 casv-3. 
 
 In the old Roman systc ,, a case when decided by the ji 
 was settled for ever, but it affected only the litigants themsel 
 It was not quoted as an authority to govern future cases, 
 law remained the same after the decision that it was bel 
 The bench therefor, though it decided cases, did not make 
 But what to our minds seems an anomaly, is that in a par 
 stage of legal developement, the function of creating much of 
 law, which with us was exercised by the Bench, with them fe 
 private members of the Bar. 
 
 In our Province we all know that every young gentleman 
 studies law hopes to be at least Chief Justice. If he were sti 
 ing in England, he would not be content with any position ur 
 that of Lord Chancellor. In like manner a Roman lawyer 
 his pet object of ambition, and that was to become Praetor, w 
 for a year at least, he would exercise the highest judicial functi 
 and be the fountain at once of equity and law. 
 
 In preparing himself for this, the highest post to which 
 could aspire, he devoted himself assiduously to the study of 
 profession. He was also engaged in daily practice as an at 
 cate and juris-consult. 
 
 In this way a lawyer of eminent ability, acquired a distinc 
 
8 
 
 so marked that his opinion was to a large extent looked upon as 
 law, and certainly came in time to be the source and origin of much 
 that was law. In dealing with cases submitted to him, he was 
 not obliged to confine himself to the points raised by the partic- 
 ular facts, but he rounded off his opmion by a view of the prin- 
 ciples which he considered tc underlay the class of cases of 
 which this was one. In this manner the 'Responsa prudentum' 
 which is the only thing in the Roman system analagous to our 
 case law, gave to that code a character of symmetry and 
 harmony which we look for in vain under the English system. 
 
 Legal writers and commentators in those days addressed 
 themselves, not to the cases decided by the Praetors, but to the 
 opinions thus given, and drew their deductions from, and made 
 their comments upon, the doctrines of these eminent juris-con- 
 sults. The result is that the Roman law furnishes a set of 
 principles applicable to cases, while the English system gives us 
 cases from which principles are to be deduced. The one 
 system furnishes the essence and spirit of law, the other the raw 
 materials from which the essence and spirit are to be distilled. The 
 Roman law with its digests and institutes and commentaries, is 
 voluminous enough, but the books in which it is contained bear 
 no proportion in number to those which embalm for us, the 
 cases that have given occupation to our courts for six centuries. 
 The volumes of reports at the time of Sir Edmund Coke was 
 counted by hundreds. Now they may be counted by thousands. 
 
 When we consider the slow and fragmentary way in which 
 our case law has been built up, by a long series of judicial decisions, 
 extending from the earliest times to the present day, touching 
 almost every point th?.t can be raised before a court, covering no 
 entire principle or branch of the law, but dealing with each case 
 as it arose, and then only with so much of the case as was neces- 
 sary to dispose of the particular controversy, it is not a matter of 
 wonder that the system should be somewhat irregular and un- 
 symmetrical. 
 
 Imagine any material structure, erected upon no settled plan, 
 begun in a remote age, put up bit by bit, here a little and there a 
 little, a wing at one time, a porch at another, here a tower, and 
 there a steeple, a roof raised a story in one part, and lowered a 
 
9 
 
 story in another; the materials of brick, of wood, of stone by 
 turns, and built by workmen of every century. From such a 
 mode of building we would not expect a very harmonious whole. 
 Yet such a structure is the law of England, and, considering the 
 way in which it has been erected, it is perfectly marvellous that 
 the fabric should challenge as it does the admiration of the world. 
 There has been in England no greater law reformer than Jeremy 
 Bentham. He is probably the severest critic of British law, which 
 England has produced. In reierring to the points of which we 
 have been speaking, he says of the English Law: "Confused, 
 indeterminate, inadequate, ill adapted and inconsistent, as to a 
 vast extent the provision or no provision would be found to be, 
 that has been made by it for the various cases that have 
 happened to present themselves for decision, yet, in the character 
 of a repository for such cases, it affords for the manufactory of 
 real Law, a stock of materials which is beyond all price. 
 Traverse the whole continent of Europe, ransack all the Libraries 
 belonging to all the jurisprudential systems of the several political 
 states, add the contents together, you would not be able to com- 
 pose a collection of cases equal in variety, in amplitude, in clearness 
 of statement, in a word, on all points taken together, in construc- 
 tiveness, to that which may be seen to be afforded by the collec- 
 tion of English Reports of adjudged cases." 
 
 The splendid eulogium at the close of this estimate, is an 
 ample set off to the censure, not altogether justifiable, with 
 which it is introduced and derives much of its value from the 
 known hostility with which the writer viewed many parts of the 
 English system. 
 
 But whatever its origin, and whatever its faults, the system 
 is destined to exercise an enormous influence over human affairs. 
 It is true the continent of Europe, and the north part of the 
 Island of Great Britain are largely governed by Roman Law. 
 But England and almost every Country in which England has 
 planted her flag, has its legal system based on the principles of 
 English Law. Throughout the United States, with their fifty 
 million of inhabitants — in this Dominion from the Atlantic to 
 the Pacific— in Africa— in Australia and Austral Asia— in 
 the Islands of the Pacific— in the West Indies and India itself, 
 
10 
 
 the English system is either the Basis of the Law or is largely 
 adopted in its administration. Of the two systems it may be 
 said with truth, that English Law of indigenous growth, and 
 Roman Law, between them govern the legal relations of the 
 whole civilized world. 
 
 I need not dwell on the vast body of the Law of England, 
 which consists of legislative enactments. These are contained 
 in some where about one hundred and fifty volumes, with an 
 average of perhaps five hundred pages to a volume. 
 
 But there is another branch of the municipal Law of England 
 which cannot be passed over so rapidly. This lies side by side 
 with the common Law, but it is founded on distinct principles, 
 and claims incidentally to supersede the common Law by virtue 
 of a superior sanctity inherent in those principles. It differs 
 from fictions, inasmuch as its interference with the civil law is 
 open and avowed. There were certain mischiefs in connection 
 with the administration of the common Law which, we have 
 seen, were cured by the judges themselves. There were other 
 mischiefs which either they could not reach or were not disposed 
 to reach by their fictions. Yet the law as they administered it, 
 was in some cases a violation of those principles of right and 
 wrong, which God has implanted in the breast of every man. 
 These mischiefs required a remedy, and it was found in the 
 doctrines of Equity. These derive their force neither from 
 ancient customs, nor legislative enactments, nor from any other 
 external source. They depend upon their intrinsic vigor as a 
 system of ethics, which would not allow the Law to be used as 
 a cloak for fraud or deception. These principles were assumed 
 to flow from the conscience of the sovereign. He committed 
 the administration of them, to his Chancellor, who in olden times 
 was generally a cleric. By degrees the doctrines of Equity, 
 were moulded by a succession of judges, until they became as 
 fixed and certain as those of the common Law. The decisions 
 of the Court, in cases where equity is involved, are recorded in 
 a vast body of Chancery Reports, which swell the books of 
 reference to which a Lawyer has occasion to resort, by some 
 hundreds of additional volumes. 
 
 There is still another large branch of the municipal law, 
 
n 
 
 being that formerly administered by tlie Ecclesiastical Courts, 
 and yet another containing the Principles of Maritime and Inter- 
 national Law. On all these branches the Student must have 
 some information ; so that it is clear he has before him no idle 
 life, if he expects to attain a high standing in his profession. 
 
 Now when a student makes an effort to inform himself how 
 he is to commence the work before him, he naturally looks for 
 advice to the men who have themselves acquired distinction in 
 the profession. Suppose he takes up the fascinating book which 
 Lord Campbell has written of the Lives of his brother Chancel- 
 lors. He will find in the biography of Lord Eldon the advice 
 given by a sage of the Law to a person just entering upon the 
 study of it. Lord Campbell says, " When I was commencing 
 my legal curriculum, I was told this anecdote. A young 
 student asked Sir Vicary Gibbs how he should learn his profes- 
 sion. Sir Vicary. 'Read Coke upon Littleton.' Student. *I 
 have read Coke on Littleton.' Sir Vicary. 'Read Coke upon 
 Littleton over again.' Student. 'I have read it twice over.' 
 Sir Vicary. 'Thrice.' Student. 'Yes thrice.' Sir Vicary. 
 •You may now sit down and make an abstract of it." 
 
 Sir Vicary's student life began over a century ago — and we 
 are not much surprised at finding him express an opinion that 
 had then been prevalent for nearly two hundred years, and was 
 regarded almost as a legal maxim. But we may wonder at the 
 emphatic confirmation of that opinion given by Lord Campbell, 
 who studied law about the beginning of this century and who 
 committed his opinion to writing not more than forty years ago. 
 He says. 'If my opinion is of any value, I heartly join in the 
 same advice. The Book contains much that is obsolete, and much 
 that is altered by statutable enactments, but no man can thor- 
 oughly understand the law as it now stands, without being fami- 
 liar with the writings of Lord Coke, nor is he by any means 
 so dry and forbidding as is generally supposed. He is certainly 
 unmethodical, but he is singularly perspicuous. He fixes the 
 attention— his quaintness is often most amusing and he excites 
 our admiration by the inexhaustable stores of erudition which 
 without any effort he seems spontaneously to pour forth— Thus 
 were our genuine lawyers formed. Lord Eldon read Coke up- 
 
12 
 
 on Littleton, once, twice, thrice, and made an abstract of the 
 whole work as a useful exercise, obeying the wise injunction. 
 
 "Legere Multum non Multa." 
 
 We must receive this utterance with respect, because it pro- 
 ceeds from a man of the highest rank in his profession. But 
 will it be considered presumptuous to say that it does not carry 
 conviction. 
 
 There is truth in the statement that familiarity with the 
 work in question is of great service to a lawyer. But the point 
 of Lord Campbell's anecdote is, not the value of the knowledge 
 to be attained from the work, but the mode and especially the 
 time.in which the Book should be read. The student should begin 
 with it, should read it over and over again, and then abstract it, 
 and all this before attempting any other Book. He admits that 
 a great deal of it is obsolete, a great deal more not now law. Yet 
 the student is to burden his memory with a huge amount of 
 legal rubbish. He is for the time to believe that to be law, 
 which is not law, and wh ch he is afterwards to unlearn. He is 
 by and by to jettison hal ^he cargo he has taken on board, 
 and still later on, to find that much remains that should have 
 been thrown overboard before — and he is to begin his study 
 without the slightest acquaintance with the technical terms 
 which stare him in the lace the moment he opens the Book. 
 This mode of studying law seems to me on a par with that 
 adopted for the dead languages in some schools, where Greek is 
 learned from a grammar compiled in Latin. The pupil has to 
 learn a language of which he knows nothing by the aid of 
 another of which he knows almost as little. This is not exactly 
 on the principle of the Dictionary which was said to define "Ignota 
 per Ignotiora" but it comes pretty near to it. 
 
 It seems to me that a law student who without any prepar- 
 ation for the difficulties of the work, without any knowledge of 
 the technical language in which it is written, takes up Coke on 
 Littleton to study it, is groping in darkness almost Cimmer- 
 ian. There may be some men who can do this and yet not be- 
 come disgusted with the study, where the threshold is made so 
 repulsive. Sir Vicary Gibbs may have done it. He does not 
 indeed say that he did. All that we learn is, that he advised a 
 
 '\ : I 
 
13 
 
 student to do it. Lord Campbell may have done it. He does 
 not say that he did. He merely advises others to do it. The 
 only thing he asserts as a matter of fact is, that Lord Eldon 
 actually did it. This may be true. Lord Eldon did many things 
 which no ordinary man could do. He could drink two bottles of 
 strong Newcastle Port, and go on immediately to deliver a Judg- 
 ment covering the most abstruse and complicateu points in a 
 Case in Equity — expressing himself with perfect clearness and 
 precision. What would have muddled an ordinary brain and si- 
 lenced an ordinary tongue, only seemed to clear Lord Eldon's in- 
 tellect and smooth the flow of his graceful oratory. One who, as a 
 judge, could do what it is believed no other judge ever did, or was 
 able to do, or would have cared to do, or to be thought able to 
 do, might, as a student, have succeeded in many things which an 
 ordinary person should not be advised to attempt. 
 
 But we are not so much surprised at this course of study 
 being recommended by English Lawyers, particularly the older 
 class of them, as we are to find their opinions concurred in by 
 eminent members of the profession on this side of the water. 
 As late as the year 1850, one of these gentlemen, who held a 
 high position at the American Bar, delivers himself in this wise, 
 on the subject we are now discussing. 
 
 •Old authorities no longer divide with old wine, the rever- 
 ence 0: either Seniors or Juniors. Most of the old Law Books 
 that used to be thought as good a foundation for their part of 
 the truth as the prophets and apostles are for the whole truth, 
 are taken away, I rather think, from the bottom or the building 
 and thrown into the ground. The Littleton, upon whom Coke 
 sits, or seems to sit, to the end of things, as Carlyle says, has 
 fewer than of old to sit with him, for long hours to alleviate the 
 incumbrance. 
 
 For the most part, as I am told, the incumbent and the suc- 
 cumbent lie together in the dust, which uppermost not many 
 care to know. 
 
 "Almost any law-book that is more than 21 years of age, like 
 a single lady who has attained that climacteric, is said to be too 
 old for much devotion. Indexes, Digests, and Treatises, which 
 supply thoughts without cultivating the power of thinking, and 
 
\ \ ] I 
 
 u 
 
 are renewed with notes and commentaries *de die in diem* to 
 spare the fatigue of reserirch are supposed to be the most conven- 
 ient society for student as wel! as practitioner. Such arc the 
 rumors which float upon the air. "All old things are passed 
 away, all things are become new." A great truth in its one 
 sense, when first spoken and always, is now thought to be true 
 in all senses, and renewable from year to year for ever." 
 
 The man who gave utterance to these opinions was himself 
 an eminent lawyer of Pennsylvania. Side by side with his State, 
 there were, as side by side with our Province there are, some 
 forty civilized States and Provinces, deriving their law from an 
 English source. Each of these States and Provinces has its separ- 
 ate judicial Tribunals, with reports of the cases adjudicated before 
 them. These Communities were placed in circumstances simi- 
 lar to his own, as they are to ours. It might therefore well be 
 supposed that the questions brought before the Courts in all 
 these countries, must bear a close similitude to each other. The 
 Reports of cases in one country, if not authoritative in another, 
 would at all events through the arguments used by Counsel and the 
 decisions of Judges, throw much light on the points of controversy. 
 It would become necessary, therefore, for the legal practitioner 
 on this side of the water, not only to study the decisions of the 
 English Courts, which up to a certain date are authoritative in 
 every State and Province, but in addition he would have occas- 
 ionally to refer to these Reports, which are comprised in some 
 thousands of volumes. One cannot therefore, but be surprised 
 at the sneers in which the orator indulges at the aid offered by 
 Indexes, Digests, Treatises and Notes. What indeed under such 
 circumstances could be more hopeless than to attempt by per- 
 sonal research of the Reports themselves, to find the cases which 
 may be applicable to a particular controversy ? A lawyer might 
 have at his finger ends all that is to be found in Coke upon 
 Littleton, and still, if applied to on any question, which, in uine 
 cases out of ten, comes before a Court of Law with us or in the 
 United States he would be as helpless as a child. 
 
 In the Case of the Bar in a New Country, there are many 
 additional reasons why the course of legal study should difTer 
 from that which would be proper in England. 
 
15 
 
 There the Profession is divided in various ways. First of 
 all, there are two great Branches of the Profession. Lawyers 
 are divided according as they pre(3are the written papers and 
 proceedings— or as they address the Court. The first-class are 
 Attorneys, Solicitors, or Proctors. The latter, Barristers or 
 Advocates, taking the title according to the Courts in which 
 they respectively practice. Then again each of these classes is 
 sub-divided into sections which devote themselves to a particu- 
 lar portion o^ the business belonging to the class. Thus con- 
 fining themselves within a limited range, they acquire peculiar 
 skill in the conduct of cases coming within the sphere of ac- 
 tivity which they select. They seldom, if ever, travel beyond 
 that sphere. With us, and in all countries situate like ours, the 
 case is entirely different. Here practically all members of the 
 profession are Attornies, Solicitors, Proctors, Barristers, and 
 Advocates. They must be prepared to appear in every Court — 
 to be concerned in every case. They must know something of 
 Law, and something of Equity. They must have some acquain- 
 tance with the law of Nations, and some with the law of 
 Divorce. They must be ready to draft a bill in Equity, or a 
 Libel in the Admiralty, alternately with a Declaration in a 
 Civil Cause, or an Indictment in a Criminal one. In fact the 
 business of a Lawyer in a New Country, requires great versa- 
 tility of talent, great readiness of resource. It requires a gen- 
 eral information about everything, which is hardly consistent 
 with very profound information about anything. Consequent- 
 ly there is less reason for, or rather, there is more reason for 
 not, pursuing the special course of study recommended by the 
 eminent authorities we have quoted. The special knowledge 
 which might in this way be acquired, like the Greek and Latin, 
 which are supposed by some people to be 'Education.' has a 
 value in the one case, as it has in the other, but if the time 
 spent in acquiring it, had been devoted to objects that would 
 better prepare the student for the work of life, the world would 
 be the better of the student, and the student better fittcw for 
 the world. 
 
 In such a state of things, Indexes, and Digests, Treatises 
 and Notes, are of inestimable value. Books written within 
 
I I ) 
 
 10 
 
 twenty-one years, which give the law to a late date, are a thousand 
 times more useful than the Entries and Year Books, and Littleton 
 with Coke on his back, whose desertion by the profession, our 
 American friend so eloquently bewails. In point of fact, it is to 
 these that our Lawyer is indebted for the time to think. Had 
 he, in each case in which he is engaged, to search for himself, 
 in the Reports, for Cases in point, he would waste recklessly the 
 time which should be employed in thinking. If he is to exercise 
 any thought at all, he will owe it to the time which these aids 
 enable him to save. 
 
 There is another point of difTerence between an old and a 
 new Country that must not be lost sight of. 
 
 In England the young men who propose to devote themselves 
 to the higher walks of the profession, as a rule, begin after having 
 received a good Collegiate Education, and when they enter upon 
 the study of law, have arrived at the age of manhood. They 
 can devote to the new persuit a trained and mature intellect. 
 They are not disheartened by the necessity of giving attention, 
 at the same time, to other studies. It is easy to see how much 
 this affects the course of study, which it is possible to pursue. 
 What would be practicable in England, is impossible here. The 
 time may come, when our circumstances will permit a longer 
 course of study, before commencing the active work of life. It 
 has not yet come. 
 
 In the cases of the great Lawyers to whom we have had 
 occasion to refer, it is worth our while enquiring how far they 
 come within the limits:, of our distinction. 
 
 Sir Vicary Gibbs spent his youth at Eton, and his early 
 manhood at Kings College, Cambridge, where he became a 
 fellow. He wa;s called to the Bar after this long educational 
 period at the mature age of thirty one. 
 
 Lord Eldon was sent to Oxford when sixteen years old, and 
 remained there till after he came of age. He obtained a fellow- 
 ship at that university, which however he lost by running away 
 with and marrying a coal fitter's daughter. He was twenty-five 
 years old when admitted to the Bar. 
 
 Lord Campbell spent eight years of his early life at the 
 
17 
 
 University of St. Andrews, and had reached his twenty seventh 
 year at the time of his admission to the Bar. 
 
 In every one of these cases, the Collegiate Course was com- 
 pleted before the professional course was commenced. In each 
 the Student was of mature years, and entered on his special 
 studies with the advantage of an intellect thoroughly trained, 
 and a mind instructed by other studies. 
 
 At the age when the youngest of these great lawyers was 
 admitted to the Bar, our men who devote themselves to the 'aw, 
 arc as a rule actively engaged in professional business, supporting 
 themselves from its proceeds. I do not say that it would not be 
 far better, for them and for us — I believe it would — that they 
 should study longer and begin later. But what can we do.^ We 
 must adapt ourselves to our circumstanees and do as we can, not 
 as we would. 
 
 We might carry our argument a little further, and ask whether 
 in the changed condition of society, and the enormous growth 
 of personal properly and of litigation depending on contract, 
 there is any ground for giving such preeminence to the study of 
 the Tenure of Real Estate. But we have already occupied too 
 much of your time, with this branch of the subject. 
 
 Instead of devoting to the study of Coke such primary and ex- 
 clusive attention, we think it much better for the student to take 
 for his early reading some treatise which gives the best general 
 idea of the whole system of municipal Law. Having thus 
 acquired the outlines of the science, and having in his mind a 
 map of the whole, he can fill up the interior as time and 
 occasion permit. Since the appearance of Blacksitone's Com- 
 mentaries about one hundred and twenty years ago, this work 
 has been an early companion of the Law student. Some of its 
 law, as Campbell says of most of Coke's, has become obsolete or 
 been repealed, but the work is an admirable one for the student 
 to begin with. Sir William Jones has pronounced it to be "the 
 most beautiful outline that was ever given of any science." 
 
 An eloquent clergyman has spoken of it in these glowing 
 words : 
 
 'Nothing can exceed the luminous arrangement, the vast 
 comprehension and (we may venture to add from the best 
 
I 
 
 18 
 
 i I 
 
 authorities) the legal accuracy, of this wonderful performance, 
 which in style and composition is distinguished by an unaffected 
 grace, a maiestic simplicity, which can only be eclipsed by the 
 splendour of its higher qualities.' 
 
 The author of this eloquent enconium was an admirable 
 judge of the grace and beauty of the style — he could fairly esti- 
 mate the skill, exhibited in the plan of the composition, but^ not 
 being himself of the profession, he docs not venture, of his own 
 knowledge, to speak ot its legal accuracy. Of that he judges, as 
 he says himself, on the authority of others. 
 
 In that respect the opinion of a professional critic of our 
 day is much more moderate, and probably in some respects 
 more correct : 
 
 'It may,' says the writer we refer to, * be noticed that the 
 great work of Blackstone marks an era in the developement of 
 legal ideas in England. It was not merely th ~ first, as it still 
 remains the only adequate attempt to expound the leading prin- 
 ciples of the whole body of law, but it was distinctly inspired by 
 a rationalizing method. Blackstone tried, not only to express 
 but to illustrate, legal rules, and had a keen sense of the value 
 of historical illustrations. He worked, of course with the 
 materials at his command. His manner and his work are 
 obnoxious alike to the modern jurist and the modern historian. 
 He is accused by the one, of perverting history, by the other of 
 confusing the law. But his scheme is a great advance on any- 
 thing that has been attempted before, and if his work has been 
 prolific in popular fallacies, at all events it enriched English 
 literature by a conspectus of the law, in which the logical 
 connexion of its principles 'inter se,' and its relation to historical 
 facts were distinctly, if erroneously, recognized." The praise 
 bestowed on this great work every one who has studied it, will 
 recognize as well deserved, while there may be some foundation 
 for a portion of the adverse criticism which is blended with the 
 praise. 
 
 With the choice between Coke on Littleton on the one hand, 
 and Blackstone on the other, there can be no hesitation. It is 
 the choice between a common place book, in which the author 
 notes down, without system or method, everything that occurs 
 
19 
 
 to him, relative or irrelative to the text on which he is comment- 
 ing; a choice between that and a systematic treatise, in which 
 every branch of the law is assigned its fitting place. 
 
 The work has gone through a great many editions, has been 
 overloaded with notes, and reduced by excisions. But in our 
 judgment the book in its original form without note or comment, 
 is a most admirable introduction to legal studies. With Black- 
 stone's scheme of law once fairly impressed on the mind by a 
 careful perusal, the student on a second and subsequent readings 
 will appreciate, and benefit by, notes which in the first instance 
 would only have perplexed him. 
 
 It is worth while to note the origin of this great work. 
 Blackstone was educated at Oxford, of which he became a 
 Fellow. Afterwards he studied law, and was admitted to the Bar. 
 He practised his profession for some years, when it occurred to 
 him that he would supply a want that had always existed at his 
 Alma Mater, at which no course of lectures on the Law and 
 Constitution of England had been established. With all her 
 splendid equipment in every branch of science and literature, 
 there was no chair for common law. Accordingly he organized 
 a course of lectures, which were highly successful. They were 
 repeated from year to year, till by and by they were collected 
 and published as Blackstone's Commentaries. Convinced of 
 the value of this course of lectures, Mr. Viner, a private 
 gentleman, a lawyer by profession, determined, as he says in 
 his will, to dedicate the bulk of his property "to the benefit of 
 posterity and the perpetual service of his country," and gave 
 the sum of ;^ 12,000 sterling, to endow a chair and establish 
 fellowships, to giv. permanence to the course. If England can 
 boast of the munificence of its Viner, and of the disposal he made 
 of his wealth, we have equal reason to be proud of our Munro. 
 The names of both will descend to posterity inscribed on the 
 same scroll of honor. 
 
 The experiment at Oxford owed its success in the first 
 instance to the eminent talents of the Lecturer. But there was 
 then, and there is now, much in the conditions of lite in England ; 
 much 1. what we have already referred to, in the distinctions 
 which prevail there between different branches of the profession ; 
 
80 
 
 much in the time of life at which young men there are in the 
 hahit of commencinpj their Icgai studios; and still somcthini^j 
 more in the situation of country towns like Oxford and Camhridijje, 
 (University towi:s thou^jh they be,) adverse to the success of 
 such an enterprise. In ICngland everything connected with law 
 clusters in and about London. There arc situate the Inns of 
 Court, hallowed by the traditions of five centuries, through one 
 or other of which every Knglish Barrister has had to pass on 
 his way to the profession. There all the business of the higher 
 Courts is conducted, except only the trial of issues in country 
 causes. There sat the full benches of the High Courts. There 
 the Lord Chancellor and the various subordinates and func- 
 tionaries under him, discharged their judicial duties. There sat 
 the High Court of Admiralty, and there also the Court for the 
 Probate of Wills, and of Marriage and Divorce. These Courts, 
 to be sure, now form but on";, but all the business which they 
 did as separate Courts is now done by the Supreme Court which 
 takes their place, and it is done in London. There sat, and there 
 sits now, the Judicial Committee of the Privy Council to hear 
 appeals from every quarter of the globe in which there is a 
 colony or country subordinate to the crown of England, — 
 appeals in which questions arise and are disposed of; now on 
 laws which were passed but yesterday, now upon Codes which 
 were in full force when our ancestors were wandering savages 
 in the wilds of Britain. There too sits, while Parliament meets, 
 the great tribunal of appeal, the last resort in litigation in causes 
 arising within the realm. Before these Courts appear day by 
 day, the ablest counsel the bar of England can furnish discussing 
 every conceivable point of law and equity. The law student in 
 London has the aid of the splendid libraries of the Inns of Court. 
 He has the opportunity of daily attendance on the Courts of the 
 branch of the profession he proposes to follow. He may listen 
 to the arguments of the most able and astute lawyers the world 
 can produce. He has thus access to a school of law which 
 dwarfs anything else that can be set up beside it. Whether, 
 therefore, in England a chair of common law is successful or 
 not, in London or out of it, no argument, drawn from its want of 
 success there, has any bearing on the question of its success in a 
 
 ',>;ii 
 
 I 
 

 21 
 
 new country. On our side of the Atlantic \vc find these schools 
 affiliated to almost every leading University, and working with 
 marked success. Their influence for ^ood is felt far and wide 
 over the cf)untries in which they have been established. VVc 
 ourselves have been oblifj;ed, practically, to reco^jjuizc ihcir i^Tcat 
 value, and to contribute oiu' mile towards their success. Some 
 of our 1 V students, disj^usted with the absence of any course of 
 \cgd\ ''^^ : mction in our collcfijes, or out of them, and unwillin^jj 
 to enter their profession without the advantages which these 
 schools afford, have resorted to the neif^hbourint; Union, and 
 from the law lectures of Harvard, or some other school of law 
 in the United States, have learned to form a higher and a 
 broader view of their profession than they could ever have 
 attained from the uninstructive routine of a law office in Nova 
 Scotia. IJy listeninf; to lectures which explain the principles 
 underlaying all law, the student comes, in the language of 
 Littleton, "to understand and apprehend the arguments and 
 reasons of the law, &c., for by the arguments and reasons of the 
 law, a man more sooner shall come to the certainty and 
 knowledge of the law." 
 
 " Lex plus laiulatur qiiando ratiotie probatiir." 
 
 Such discourses open up to him entirely new views of the 
 field over which his studies are to range. They help him 
 to trace law backwards to its first germs in the family group, to 
 follow it as the family developes into a community, and the 
 family usages into customary law, or into a code or some other 
 written form — to learn to distinguish between the essential and 
 the accidental, between what is common to all law, and what is 
 peculiar to one system or to one country. With a mind thus 
 prepared he can approach the study of our municipal law with 
 great advantage — and it must be his own fault, if, when he comes 
 to enter upon the active duties of his profession, he finds himself 
 eclipsed by men who have won distinction without having 
 enjoyed the advantages that have fallen to his lot. 
 
 Beyond and above all things, a lawyer should cultivate a 
 high sense of personal honor — next to that, he should feel to be 
 dear to him, the honor of his profession. He should thus, 
 
22 
 
 ' ll 
 
 I I 
 
 first for his own sake, secondly for theirs, shrink from any 
 act or proceeding, either as attorney or in the higher sphere of 
 barrister, which could compromise or sully his own reputation, 
 and through it, that of the profession. He is not engaged in a 
 irade. It is the lowest view of his profession to consider it as a 
 business to make money by. There is no more despicable 
 creature on the face of the earth than the lawyer whose whole 
 soul is absorbed in Bills of Costs— who uses the opportunities 
 his profession affords for no higher purpose than to exact fees — 
 to mulct somebody — no matter whether client or antagonist — 
 in Bills of Costs. Some acts done by lawyers through tricks 
 and quirks of the law, (far be it from me to say that any Nova 
 Scotia lawyer has ever done the like,) whereby they succeed in 
 robbing an innocent man of his money, deserve to be placed on 
 a par with acts of piracy. The men who do these things may 
 be in — but they cannot be of — the profession. Siill it is by such 
 men as these that a noble profession is degraded. It is the fact 
 that men of the kind exist in some countries, that accounts 
 for, if it does not justify, such sneers as that of Addison when 
 he tells the anecdote of a king sending to a neighboring prince 
 for 30,000 swine, and receiving a reply that the swine could not 
 be spared, but he had 30,000 lawyers who were quite at his 
 service. 
 
 It is only of late years that we have had the courage to place 
 in the avenues to the profession, the slightest impediment to pre- 
 vent any from entering that chose to do so. Nov\ .ve require some 
 educational and moral tests. A youth is no longer allowed to 
 er ter upon his pupilage without being called upon to show that 
 he has some qualifications Tor the profession. It is to be hoped 
 that as time goes on, the preliminary examination will become 
 more and more strict, and that when the student shall have bad 
 the opportunities which the school of law will afford, the final 
 examination will also be conducted with increased vigor. There 
 will then be no excuse on the part of the examiners, for not 
 exhibiting towards the profession and the public, some of that 
 pity and sympathy which they are sure to feel for the individual. 
 
 The education which the school will afford, will not of course 
 make a lawyer, any more than an ordinary education at college 
 

 23 
 
 will make a scholar. But it will afford an admirable prepara- 
 tion for legal pursuits. As regards all education, it may be said 
 in the language of Gibbon, that " every man who rises above 
 the common level, receives two educations, the first from his 
 instructors — the second, the most personal and important, from 
 himself." 
 
 If this be so as regards ordinary education, it is still more 
 so in respect to Law. One of the oldest of legal maxims 
 declares the " Lucubrationes viginti annorum" necessary to 
 the making of a thorough lawyer. If the emphatic saying of 
 Carlyle, " that our school hours are all the days and nights of 
 our existence," be applicable to ordinary education, it is espe- 
 cially so to the Law — where life is a continuous study Every 
 case is a lesson ; every search required in the exigencies of daily 
 work, widens and broadens and deepens our acquaintance with 
 a science of almost boundless width, and breadth, and depth. 
 
 In a new country like ours, lawyers exercise a large influence. 
 They naturally take a leading part in the local business of every 
 community. Their habits of ready speech, their acquaintance 
 with the forms of deliberative assemblies, make them an author- 
 ity at those meetings which every community in a free country 
 has occasion to hold. It is of the highest importance, therefore, 
 that they should possess a character for candor, for public spirit, 
 for honor and integrity, in the communities in which they reside. 
 With such qualities they can be most useful in their several 
 spheres — as useful as without them they would be mischievous 
 and dangerous. Every well-wisher of his country, therefore, 
 will welcon e any effort to raise ihe character and standing of 
 the profession. We hail this enterprise as having for its aim an 
 object so important. We trust that it v/ill hcve an effect, not 
 only on the lawyers as a class, but, through them, on the com- 
 munities in which they dwell. We hope that the effect will be 
 such as to justify the expectations which have led the munificent 
 founder of the chair of law, to add this to his other splendid 
 benefactions to Dalhousie, for which our people can never be 
 sufficiently grateful.