Contents -BIBLIOGRAPHIC RECORD

S. Austin Allibone, comp. Prose Quotations from Socrates to Macaulay. 1880.

Horace Binney

It has been said that the law of England derived the doctrine of charitable uses from the Roman Civil Law. Lord Thurlow has said it, and there are others who have said the same thing. It is by no means clear. It may very well be doubted. It is not worth the time necessary for the investigation. One of the worst doctrines, as formerly understood in England, the doctrine of Cy-pres, has been derived from the Roman law, and perhaps little else. Constantine certainly sanctioned what are called pious uses. A successor, Valentinian, restrained donations to churches, without disturbing donations to the poor; and Justinian abolished the restraint, and confirmed and established such uses generally and forever.

Here are the two great principles upon which charitable or pious uses depend. The love of God is the basis of all that are bestowed for His honour, the building up of His church, the support of His ministers, the religious instruction of mankind. The love of his neighbour is the principle that prompts and consecrates all the rest. The currents of these two great affections finally run together, and they are at all times so near that they can hardly be said to be separated. The love of one’s neighbour leads the heart upward to the common Father of all, and the love of God leads it through Him to all His children.

I have no pleasure in a public investigation of even points of law that require me to speak upon the subject of religion. Few men who think seriously in regard to it are over ready to utter what they think in mixed assemblies. Few men who think with the greatest attention upon it, and are happiest in always expressing precisely what they think, are over willing to trust themselves with it in a debate like this. In a contest for victory we are not always masters of our language, not always perhaps followers of our principles. Though the subject, and the duty we owe to it, require us to weigh our words “in scales of gold,” yet light words that will not bear the weighing may thoughtlessly escape, to our own prejudice, and, what is much worse, words alloyed below the standard may be hastily uttered, to the prejudice and dishonour of religion itself.

There are two very different methods of acquiring knowledge of the laws of England, and by each of them men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel, as much as to know, what is in harmony with the system and what not. The other is, to get an outline of the system by the aid of commentaries, and to fill it up by desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired until it is given by investigation in the course of practice. A good deal of law may be put together by a facile or flexible man in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer.

The world, my fellow-citizens, has produced fewer instances of truly great Judges than it has of great men in almost every other department of civil life. A large portion of the ages that are past has been altogether incapable of producing this excellence. It is the growth only of a government of laws, and of a political constitution so free as to invite to the acquisition of the highest attainments, and to permit the exercise of the purest virtues, without exposure to degradation and contempt, under the frown of power. The virtues of a prince may partially correct the mischiefs of arbitrary rule, and we may see some rare examples of judicial merit, where the laws have had no sanction, and the government no foundation, but in the uncontrolled will of a despot; but a truly great Judge belongs to an age of political liberty, and of public morality, in which he is the representative of the abstract justice of the people in the administration of the law, and is rewarded for the highest achievements of duty by proportionate admiration and reverence.

A lawyer who has passed his youth and early manhood in the society of such men is the happier for it through life, and especially in old age. On all occasions of vexation or weariness with things near at hand, he can escape at pleasure into the past of these men, which was full of their influence, full also of judicial independence and dignity, and full of professional honour, with unlimited public respect; from which scene the few clouds that are to be found in the clearest skies have been absorbed or dispelled by time, and to which the clouds of his own day, if there are any, cannot follow him.

Old authorities no longer divide with old wine the reverence of either seniors or juniors. Most of the old law books, that used to be thought almost 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 of the building, and thrown into the garret. That Littleton upon whom Coke sits, or seems to sit to the end of things, as Carlyle says, has fewer than of old, I suspect, to sit with him for long hours to alleviate the incumbrance. For the most part, as I am told, the incumbent and the succumbent lie together in the dust,—which uppermost not many care to know. All the Entries, Brooke, and Coke, and Levinz, and Rastall, and the others, have made their exits some time ago, and will not appear again before the epilogue. Almost any law book that is more than twenty-one years of age, like a single lady who has attained that climacter, is said to be too old for much devotion. Indexes, Digests, and Treatises, which supply thoughts without cultivating the power of thinking, and are renewed with notes and commentaries de die en diem, to spare the fatigue of research, are supposed to be the best current society for student as well as for practitioner. Such are the rumours which float upon the air. “Old things are passed away, all things are new,”—a great truth in its own sense when it was first spoken, and always,—is now thought to be true in all senses, and renewable from year to year, forever; and lawyers give as ready a welcome to new things, and turn as cold a shoulder to the old, as the rest of the world. Such is the apprehension.

We are now under the direction of a fearful mandate which compels our Judges to enter the arena of a popular election for their offices, and for a term of years so short as to keep the source of their elevation to the Bench continually before their eyes. At least once again in the life of every Judge we may suppose he will be compelled by a necessity much stronger than at first to enter the same field; and the greater the necessity the less will his eyes ever close upon the fact. It is this fact, re-eligibility to office, with the hope of re-election, that puts a cord around the neck of every one of them during the whole term of his office. It is transcendency worse than the principle of original election at the polls…. A leasehold elective tenure by the judiciary is a frightful solecism in such a government. It enfeebles the guarantee of other guarantees—the trial by jury—the writ of habeas corpus—the freedom and purity of elections by the people—and the true liberty and responsibility of the press. It takes strength from the only arm that can do no mischief by its strength, and gives it to those who have no general intelligence to this end in the use of it, and therefore no ability to use it for their own protection. The certainty and permanence of the law depend in great degree upon the Judges; and all experience misleads us, and the very demonstrations of reason are fallacies, if the certainty and permanence of the judicial office by the tenure of good behaviour are not inseparably connected with a righteous as well as with a scientific administration of the law.

I must say, in reference to Indexes generally, that I have come to regard a good book as curtailed of half its value if it has not a pretty full Index. It is almost impossible, without such a guide, to reproduce on demand the most striking thoughts or facts the book may contain, whether for citation or further consideration. If I had my own way in the modification of the Copyright Law, I think I would make the duration of the privilege depend materially on its having such a directory. One may recollect generally that certain thoughts or facts are to be found in a certain book; but without a good Index such a recollection may hardly be more available than that of the cabin-boy, who knew where the ship’s tea-kettle was, because he saw it fall overboard. In truth, a very large part of every man’s reading falls overboard; and unless he has good Indexes he will never find it again. I have three books in my library which I value more than any other three, except the very books of which they are a verbal Index: Cruden’s Concordance of the Bible, Mrs. Cowden Clarke’s Concordance of Shakespeare, and Prendergast’s Concordance of Milton. We may not want such frequent soundings on the charts of most books; but the fuller they are, the more time they save, and the more accurately they enable the reader to explore and retain in memory the depths of the best authors for his present occasions.

I certainly think that the best book in the world would owe the most to a good Index, and the worst book, if it had but a single good thought in it, might be kept alive by it.