CHAPTER III.

A PARALLEL BETWEEN THE PAST AND PRESENT LAWYERS OF THE UNITED STATES.

IT is said that comparison gives definiteness and clearness to thought, and that we never can understand anything well, without comparing it with something else.

I am drawing a line between the period before and after the Civil War, and I put the old generation of American lawyers on the farther side, and the new ones on this side of the line. I thus institute a comparison which I think is happy. I cannot speak with complete knowledge of the old generation. I was not of it. It was gradually disappearing when I became an apprentice to the law. I gathered enough, however, from instruction and association, to speak with some authority of the past. The fundamental difference between the old and new régime of lawyers is this: the great aim of the old lawyers was to master the elements of law; they depended upon an eloquent presentation of their causes; they stood nearer to

the courts than the lawyers of to-day; the judges had the time, and it was their pleasure, to listen to the advocates; "commercialism" did not exist; there were less legal tricks or technical legerdemain to resort to, because that dire plague of codification had not yet spread itself over the profession, and destroyed its science, as it existed under the common law, where, while form was strictly observed, the substance or merits of a controversy, were principally sought for.

The lawyers of to-day are case and code lawyers. The search for principle is subordinate to an investigation for a precedent. The right or justice, or the merits of controversies, disappear under a mass of irreconcilable decisions and forms. It requires a different kind of intellectual development to be a lawyer than it did in the days long gone by. The modern code lawyer is bright enough, and his wits, like the quills on a fretful porcupine, are always in full play. He knows little of elementary law, but he carries, as a soldier would a knapsack, a memory filled with sections of codes and adjudicated cases. A legal combat now consists of hurling provisions of the Code and "pat" precedents at each other. Hence the modern advocate's nose is always to be found in a digest, "case"-law accumulating so fast that he must have indices to search

for his precedents. Poor soul! if he cannot find a precedent, he is in a terrible sweat. But he is resourceful and sophistical, and in the absence of his "authority" he begins to differentiate and distinguish, and he grinds away at the precedent of his adversary until it is whittled to nothing. If he is clever in his presentation, the courts generally follow him, and wipe out the old precedent by differentiation, and with a mock respect for stare decisis, pay as much attention to it, when it stands in the way of their latest convictions, as a court of last resort would regard a decision of a primary magistrate.

I must pause here to say a word in reference to the doctrine of stare decisis. It is a venerable principle in Anglo-Saxon jurisprudence. To-day, while there is an affected respect for it, there is often an actual departure from it, introducing manifold inconsistencies and confusion. It is a serious question whether the doctrine of stare decisis can be, now, strictly upheld. Under any conditions it necessarily dwarfed the intellect, and stifled moral convictions. No lawyer, or court, could accept a precedent, which he believed to be wrong, without a struggle, and with reluctance. The effort of the legal and judicial mind in these times is to differentiate it, and thus escape from its consequences. Whatever merit the doctrine possessed a century ago (and as a rule of property

it was great as fixing stability), precedents have accumulated so fast that the mind is lost in a maze of confusion in endeavoring to follow them. When the law reports were few, and the precedents shone like bright stars, in the legal firmament, and the lawyers knew and followed them, as astronomers do the particular planets, the application of stare decisis was easy and simple. But now-it flitters between the thousands of decisions as a phantom of the law-not as a vital principle.

I will give a striking instance occurring in the State of New York, which illustrates the condition of the doctrine of stare decisis, caused by a multiplicity of decisions and legal reports.

In the case of Williams v. Trust Co., decided in May, 18921 it appeared that the plaintiff had pledged to the defendant certain bonds, as security for a loan under a collateral stock note, providing that in case of default in payment at the time specified, defendant might sell the securities "in such manner as they in their discretion may deem proper without notice." The note was dated March 1st, 1884, and was payable six months after date. The plaintiff's rights were not foreclosed on the maturity of the loan, but there were numerous interviews and communications between the parties looking to the

1 133 N. Y. 660.

extension of the loan, and operating, as claimed by the plaintiff, as a waiver. Notwithstanding the efforts of the plaintiff, to have the question of waiver determined by the jury, as one of fact, the Court refused, and held that the defendants had the right to foreclose the pledge, without notice, at any time, after the maturity of the loan, unless the written agreement was in some way modified, and that the parties had not modified their rights by anything that occurred after the 1st of September, when the loan matured. The Court of Appeals sustained this view, and defeated the plaintiff, holding that the Court below committed no error, in not submitting the case to the jury.

This direct question came again before the Court in the case of Toplitz v. Bauer,1 in January, 1900, nearly eight years after the preceding case. In that case the Court, contrary to its decision in the preceding case of Williams, held that the contract of bailment, whereby personal property is pledged, as security for a debt, is one of the class of contracts where the mere indulgence on the part of the creditor by a promise to extend the time, or by his conduct, will effect a change in the duties and obligations of the parties to each other, as prescribed by the original agreement, and that where the original contract

1 161 N. Y. 325,