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Entered, according to act of Congress, in the year eighteen hundred and seventy-three,
BY WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.
APR 2 0 1966
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
ALBANY, JANUARY 4, 1873.
THE USES AND ABUSES OF COMMONPLACING.
Whether or not the use of commonplace books is beneficial has been the fruitful subject of diverse opinions. A number of men whose opinions we have been accustomed to greatly respect have been earnest advocates of their utility, while others, no less worthy of attention, have condemned them, as commonly used. Among the former we may mention so venerable an authority as Fulbeck, who said: "Commonplacing is a profitable course under titles to digest the cases of the lawe, into which they may transfer such things as they have either heard or read. Neither is it safe to trust to other men's abridgments, which are little available to such as have read a little; but that which we by our owne sweat and labor do gaine, we do firmly retain and in it we do principally delight; and I am persuaded that there hath never been any learned in the lawe and judicial, who hath not made a collection of his own, though he hath not neglected the abridgment of others." And Sir Matthew Hale said: "Whatever a student shall find in the course of his reading he should abstract and enter the substance of it (and most especially of cases and points resolved) into his commonplace book, under their proper titles;" and he proceeds to give six separate advantages attending this course, the last of which we quote, as the only one, in the view we take of the matter, that can really be called an advantage (his plan being obviously to transcribe the gist, if not the language, of one's reading). It is as follows: "6. He (the student) will be able, upon any occasion, suddenly to find any thing he hath read without recourse to tables or other repertories which are oftentimes short, and give a lame account of the subject sought for."- Pref. to Rolle's Abridgment.
Sir William Jones was another believer in commonplacing for the lawyer, and was, apparently, one of the few willing to endure the drudgery of it when carried
to the extreme; for, speaking of it, he said: "Since it is my wish to become, in time, as great a lawyer as Sulpicius, I shall probably leave as many volumes of works as he is said to have written." That number we believe was computed at one hundred and eighty. Whether Sir William accomplished the task or not we do not know, nor is it of moment. Most men, to do it, would require the strength of Hercules, and the days of the planet Jupiter.
Among the opponents of the practice was that sound thinker, and common sense philosopher, Dr. Johnson, who remarked: "Many readers I have found unalterably persuaded that nothing is certainly remembered but what is transcribed; and they have, therefore, passed weeks and months in transferring large quotations to a commonplace book. Yet, why any part of a book, which can be consulted at pleasure, should be copied, I was never able to discover." Idler, No. 74. And the illustrious Gibbon agreed with the learned doctor, and said: "Commonplacing is a practice which I do not strenuously recommend," Gib. Misc. Works, 97. That charming writer, Samuel Warren, in his "Law Studies," likewise opposed this system of transcription; and Professor Washburn than whose no judgment could be sounder-in his excellent "Lectures on the Study and Practice of the Law," while conceding the utility of commonplace books, "if judiciously used," thought that they "should be used sparingly and for special purposes only." "But it is an entire mistake," he remarks, "to suppose that writing a thing in a commonplace book is helping the memory to treasure it up as a part of one's knowledge. The memory soon grows content with knowing that the thing is safely laid up in such a book, and will not trouble itself to keep charge of it any longer; and the consequence is, that the memory thus dealt with loses its tenacity and grows weaker, just in proportion as it is accustomed to remit its efforts to retain what is committed to its charge."
Now we most heartily agree with the opponents of commonplacing, if by that term is meant -as most of its advocates and opponents that we have mentioned have regarded it - a mere transcription of the important passages or principles one reads. Life
is too short and books are too numerous and accessible for that; but there is another kind of commonplacing that we know to be of great value, especially to the lawyer. Dr. Johnson, we believe it was, who said that "knowledge is of two kinds. We know a subject ourselves, or we know where we can find information upon it." The knowledge of every lawyer at least, in these days of many books, must consist mainly of the knowing where to find a thing. Especially is this true of the reported decisions. We all of us know that we have frequently read a decision on some question not of present interest to us, and which left a faint impression on the memory, but which we have afterward, when it became important to us, searched for in vain. And just here is where the commonplace books becomes valuable to the lawyer. As an Index Legum or memoria technica its advantages are incalculable; as a mere repository of principles and passages in extenso it is but a waste of time and a foe to the memory. Let the student or the lawyer- and no one is too old to reap advantage from such a course take an ordinary blank book and set apart certain pages to each of the different titles of the law, and then, as he reads the reports, make a reference under the appropriate heading to the subject-matter of each decision of any importance, and to the volume and page where it is to be found, and 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 not be given, but a very brief statement or rather "catch line" of the nature of the opinion should be recorded. Each reference should not occupy over a line, and the lines may be numbered for the purpose of cross reference. To illustrate our meaning we copy a few references from a book that has been so kept for years by a gentleman eminent at the bar and noted for the readiness with which he can turn to an authority on almost any question.
7. One joint contractor not by admission of other, unless partners. 2 Comst. 512.
8. None can take place by expression of opinion on question of law. 2 Seld. 253; 2 Comst. 19.
of time in the often vain search for authorities which he remembers to have seen, but does not remember where. To use a homely illustration, he will have that "bird in the hand," which is said to be "better than two in the bush." Every decision of any importance read should be so indexed, for, though its use may not at the time be apparent, it will serve a purpose at one time or another. Wirt said: "Old fashioned economists will tell you never to pass an old nail or an old horseshoe, or buckle or even a pin, without taking it up, because, although you may not want it now, you will find a use for it some time or other. I say the same thing to you with regard to knowledge. However useless it may appear to you at the moment, seize upon all that is fairly within your reach, for there is not a fact within the whole circle of human observation, nor even a fugitive anecdote that you read in a newspaper or hear in conversation, that will not come in play some time or other; and occasions will arise when they will involuntarily present their dim shadows in the train of your thinking and reasoning as belonging to that train, and you will regret that you cannot recall them more distinctly." In the law is this especially true, and the plan that we have suggested will enable the lawyer to have such a full control of his resources as he can acquire in no other way.
1. Grantee of husband, by quit-claim deed, not, in action for dower. 1 Comst. 242; 1 Story's Eq., § 130; 1 Am. Law Reg. N. S. 604.
2. Presenting petition for discharge not estopped Taney, owned a good landed estate, and had an infrom setting up release. 16 N. Y. 560.
3. Mortgagor not, by judgment in favor of prior mortgagee. 16 N. Y. 575.
4. Maker of note is if certifies note good. 7 Abb. 31; 26 Barb. 611.
5. Defendant who induces plaintiff to bring suit is. 21 Wend. 96; C. & H.'s notes, 458; 29 Barb. 156; 6 Hill, 534; 36 N. Y. 514; 47 N. Y. 493.
6. Defendant who induces plaintiff to believe property in his possession not. 9 Cush. 490.
come sufficient to enable him to live comfortably, and to educate his children. His mother was the daughter of Roger Brooke, a wealthy land owner on Battel Creek, and was, like his father, a Roman Catholic. The severe laws which were enacted against this sect during the reign of William and Mary, and which extended into Maryland, rendered it practically impossible, in many instances, for Catholic gentlemen to educate their children; and Mrs. Taney's educa tion, so far as mere book-learning was concerned, was a very limited one. But her son, with a filial devotion which marked his whole life, and when near the close of that life said of her, that "her judgment was sound, and she had knowledge and qualities far higher and better than mere human learning can give.
He who shall faithfully carry out such a plan will soon find that his Index Legum is the most valuable book in his library, and will save himself a vast deal
CHIEF JUSTICE TANEY.
Two recent events the unveiling of the statue of Chief Justice Taney, at Annapolis, and the publication of his memoir, call attention once more to one who, for nearly forty years, acted a prominent part in the public affairs of the country; who was, for twenty-seven years, the chief justice of a court which M. de Tocqueville spoke of as "standing at the head of all known tribunals," but whose long public service, great ability, unquestioned integrity and devoted loyalty were all forgotten, when the partisan passions of the people were aroused.
Roger Brooke Taney was born in Calvert county, Maryland, March 17, 1777. His father, Michael
I remember and feel the effects of her teaching to this hour."
At the age of eight years young Taney was sent, with the other children, to a school kept in a log cabin three miles distant, where reading, writing and arithmetic were the only subjects taught, the principal school books being Dilwurth's spelling book and the Bible. They walked when the weather was pleasant, and when it was not stayed at home. Later he was placed at a grammar school in the county, where he remained only for a short time, the teacher—a stark lunatic having been drowned in attempting Peter's feat of walking upon the water. Soon after he was fifteen, Taney was sent to Dickinson College, Carlisle, where he devoted himself so sedulously to his studies that on graduating three years later he was appointed valedictorian- the highest honor conferred at the time. Among his teachers in college was Charles Huston, afterward and for many years one of the judges of the supreme court of Pennsylvania.
Having determined to enter the profession of the law, Mr. Taney, in the spring of 1796, went to Annapolis and entered the office of Jeremiah Townley Chase, then one of the judges of the General Court of Maryland, where he remained for three years, - "studying closely," as he says, when he was admitted, in his twenty-second year, to the bar. Of his place of study he says: "My reading in the office of a judge, instead of a practicing lawyer, had some advantages, but, upon the whole, was, I think, a disadvantage to me. It is true it gave me more time for uninterrupted study, but it gave me no instruction in the ordinary routine of practice, nor any information as to the forms and manner of pleading further than I could gather it from the books. In the office of a lawyer in full practice, the attention of the student is daily called to such matters, and he is employed in drawing declarations and pleas, special and general, until the usual forms become familiar to his mind, and he learns, by actual practice in the office, the cases in which they should be respectively used, and what averments are material and what are not. The want of this practical knowledge and experience was a serious inconvenience to me, and for some time after I commenced practice I did not venture to draw the most ordinary form of a declaration or plea without a precedent before me; and if the cause of action required a declaration varying in any degree from the ordinary money counts, or the defense required a special plea, I found it necessary to examine the principles of pleading which applied to it, and endeavored to find a precedent for a case of precisely that character; nor was it so easy, in that day, for an inexperienced young lawyer to satisfy himself upon a question of special pleading. Chitty had not made his appearance, and you were obliged to look for the rule in Comyn's Digest or Bacon's Abridgment, or Viner's Abridgment, and the cases to which they referred, and I have sometimes gone back to Lilly's Entries and Doctrina Placitandi, in searching for a pre
cedent." Those were the days when pleading was a science the pride of the bench and the bar and to be unskilled in it was to be ignorant of the law.
The judges of the general court at that time wore scarlet cloaks, a gay costume, surely, for a dignified tribunal. Among the then leaders of the bar of Annapolis were Luther Martin, Philip Barton Key, John Thompson Mason, John Johnson (father of Reverdy Johnson) and Arthur Shaaf, great lawyers in their day, but whose names are now hardly known, at least outside their State, so ephemeral is the reputation of most of the great lights of the profession. Luther Martin is represented as a lawyer of unusual ability the acknowledged head of the Maryland bar-and, in many respects, a greater than Pinkney (who was then abroad), but addicted to stimulants and careless of fame. He was the chief counsel in defense of Aaron Burr, and conducted the cause with masterly skill. But, after a most successful and lucrative practice, he died a subject of charity. We notice, in passing, a curious statute of Maryland, which indicates how highly his abilities were appreciated in his day and generation. It provided that "each and every practitioner of law in this State" should pay annually five dollars a year for a license to practice, the proceeds of this tax to be devoted, through trustees, to the use of Luther Martin.
Speaking of his student life, Mr. Taney said: "I have, for weeks together, read law twelve hours in the twenty-four, but I am convinced that this was mistaken diligence and that I should have profited more if I had read law four or five hours, and spent some more hours in thinking it over and considering the principle it established and the cases to which it might be applied." He also abstained entirely from going into society, which he afterward thought was a great mistake, as he missed that ease and self possession in conversation so important to the lawyer, but to be gained only by mingling with the world. We commend this early experience of the late Chief Justice to the law student, and perhaps it may not prove unprofitable to those older in the profession. Time and again has it been recorded by men who have achieved success in the profession that law is not to be learned by constant reading of books; that much study, without reflection and digestion, is little more than a weariness of the flesh, and that a cloisteral life is not that best calculated to success at the bar.
Mr. Taney's first effort at the bar was made in the mayor's court of Annapolis, in an action of assault and battery. Naturally timid, and morbidly sensitive, his embarrassment on the occasion was, as described by him, something painful. He says: "I took no notes, for my hand shook so that I could not have written a word legibly if my life had depended on it; and, when I rose to speak, I was obliged to fold my arms over my breast, pressing them firmly against my body, and my knees trembled under me