Newton on Blackstone

VOLUME 159

NUMBER 1

JANUARY 1937

BY A. EDWARD NEWTON

I

THIS is an important day in the lives of all of us in this auditorium. For you who are being graduated, a great university has done all that it could to fit you for the world — it is a debt that you can only repay by being true to her and to her traditions. I would not have you think that the world is waiting for you. You will find it, in Shakespeare’s phrase, an oyster, but one that will not open readily — it never did so open. Everyone must open it for himself.

I have recently been reading old Montaigne. The French essayist died in 1592. Shakespeare had not then written his greatest plays, yet Montaigne was complaining that the world had seen its best days, that things were not as they used to be; and he believed it, too, for an honester man than Montaigne never lived. The English have a comic weekly, Punch — it has been functioning now for almost a hundred years; someone said, long ago, that it is not as good as it used to be — to be met by the rejoinder that it never was. There will be cakes and ale again — and ginger hot in the mouth, too. I have had mine and you will get yours and enjoy them, but you must be patient, diligent, and not too easily discouraged. A famous philosopher once said that most apprehension is needless pain, that the things we fear most never happen. There was a song sung by some of us during the war, the refrain of which was, ‘It’s a terrible, terrible, terrible war, still it’s better than no war at all.’ And so I say of the world. But, in the words of Walt Whitman, ‘I sing myself.’

Several years ago I received an invitation from a person unknown asking me to be the guest of honor upon the occasion of the annual gambol of the Presbyterian ministers of Philadelphia and vicinity. I was to address them upon any subject that might be agreeable to me. I replied, very pertly, — as is my habit, I fear, — that I must decline the invitation; adding that they would not care to hear my opinion of ministers in general, and of Presbyterian ministers in particular. I supposed that that would settle the matter, but not so. Instantly came a reply. ‘Splendid! ’ it said. ‘We now insist upon having you tell us your opinion of Presbyterian ministers; it will be great fun.’ How could I decline? And upon this text I spake. I found the ministers to be capital fellows — when not working at their jobs — and a good time was had by all. And in the same humor I shall make my Commentary upon Blackstone.

Copyright 1936, by The Atlantic Monthly Company, Boston, Mass, All rights reserved.

But first may I say how fully I endorse all that has been said as to my merits? They have been, if anything, understated. (Turning to the President of the University) You will be pleased to know, my Lud, that the proposed action of your honorable self and your Trustees meets with general approval. I am not, I hope, betraying confidence when I say that I have received an anonymous letter signed by all of the leading members of the Bench and Bar of Philadelphia endorsing the action of your Board. This gives me courage further to address you.

When, several months ago, you did me the honor of informing me that it was the intention of the University to confer upon me the degree of Doctor of Laws, I feared myself unworthy of such distinction: I feared that, like the Clown in Twelfth Night, I might be thought a dissembler in this gown, for I am not tall enough to become the function well, nor am I lean enough to be thought a good student. But, as Dr. Johnson said when he was praised by his King, it is not for me to bandy civilities with my sovereign, and I shall endeavor to prove worthy of the honor you do me. When I become a little more accustomed to the rôle I shall henceforth play in the world I shall, I hope, be able to speak without notes, but at this moment, conscious that there must be no fumbling in the message that I am privileged to deliver to this distinguished audience, I permit myself the use of pen, ink, and paper — toys, play with which I have indulged myself for many years, and more dangerous than most.

Lawyers, my Lud, together with soothsayers, prophets, preachers, and physicians, are among the learned professions which compel the respect and admiration of society. They form a great trades-union, of which you are about to make me a member, and I thank you for the honor. I am not blind to the fact that, as in a nation of one-eyed men a two-eyed man is king, so, by the mere process of being able to read, the members of this union first secured their exalted position. With the passage of time came wealth and increase of dignity, so that to-day the members of this band, this guild, this brotherhood, do not hesitate to announce to the world their importance by adorning themselves in costly and gayly colored robes, that by their magnificence they may stun the imagination of those who come to them for succor or for advice. Looking at the portraits of the famous Chief Justices and Lord Chancellors which adorn the walls of the National Portrait Gallery in London, I sometimes ask myself whether these men were aware that their air severe was but a mere — veneer; an affectation born of a morbid love of admiration.

There in the front row before me sits my friend Dr. Tait McKenzie, the distinguished sculptor — looking like a scarlet woman in the robes of the University of McGill. If fine feathers make fine birds, as we are told they do, then Tait is the finest bird in this auditorium. I envy him his plumage. In England, too, whence many of our legal customs come, lawyers do not disdain to cover their heads with a thatch, usually called a wig, now made of the tails and manes of horses. Wigs were introduced in courts of justice in 1670, but something over a century ago a wigmaker invented the modern article, composed of horsehair in the proportion of five white strands to one of black. The advantage of this type is that it retains its curl without grease and requires no powder. It is commonly thought that a head which can wear a wig can hardly fail in the matter of wisdom, and it is a matter of keen regret to me that the great university which has seen fit so signally to honor me has not provided me with one: it is for this reason that I appear before you, if not exactly baldheaded, yet lacking somewhat in the appearance of dignity and wisdom. You will recall, sir, that Charles James Fox, looking at a portrait of Lord Chancellor Thurlow, his full-bottom wig falling bountifully to his shoulders and giving him that appearance of sagacity for which he is remembered, observed, ‘No man ever was so wise as Thurlow looks.’ And but for the unimpeachable integrity of Charles Lamb we might well doubt his observation that ‘lawyers were children once.’

We have it upon the authority of Shakespeare that apparel oft proclaims the man; without the trappings of office a man is, after all, but a forked radish. As such — man, not radish — I venture very respectfully to address you. And even you, my Lud, who have forsaken the uphill road of the man of affairs for the primrose path of the college president — even you, sir, distinguished as you look to-day in the panoply of your high office, how, think you, do you appear in the eyes of your wife appareled in bed-smock and nightcap? A judge may let fly the thunderbolts of the law from the bench, but his decrees do not run in the bedchamber. However, it would ill become me to pursue this subject further.

II

I have been moved to inquire, sir, what is this science called the Law? It is not enough to call her a jealous mistress; she is something more than that. Gibbon, who in a few terse words summed up all history as a register of the crimes, follies, and misfortunes of mankind, was equally exact in describing the law: he called it a mysterious science and a profitable trade. In England it was merely necessary to eat twelve dinners in a foreordained place and company to become ipso facto entitled to be called to the bar, in addition to which it was important for a lawyer to bear the port, charge, and countenance of a gentleman; but today and in this country a certain amount of actual study is required. One critic has said that whoever wishes to attain a style elegant, but unostentatious, must give his days and nights to the luminous pages of Addison. May I not paraphrase the famous remark of Sheridan and say that he who would comprehend the law must devote his days and nights to the voluminous volumes of Blackstone?

I have done so, my Lud, and I find that there are three main divisions of the law: common or garden law, which seems to be made rather by the sun and shade than by the reasoning of man; equity, which the learned John Selden said depended upon the length of the Lord Chancellor’s foot; and international law, which is a device made of sand, painted to look like iron, but which invariably falls to pieces when subjected to the use for which it is designed. These three branches are capable of many subdivisions, and to these may be added a speedy and effective form of law invented by one Judge Lynch. The use of this law is, however, frowned upon by old-time practitioners as tending to deprive them of the emoluments of the profession which has been so aptly described by the great historian as a profitable trade.

From time immemorial the followers of well-defined and recognized trades have assembled themselves into groups or guilds, and a few centuries ago, in London, they began to build halls or meeting places in which their mysterious and secret rites might be carried on without molestation. Thus we have to-day the Goldsmiths’ Hall, the Fishmongers’, the Ironmongers’, the Cloth-workers’, the Surgeon-Barbers’, and many others. In time these guilds became rich, powerful, and arrogant; admission into them came to be and still is regarded as an honor, so natural is it for a man to seek to rise above his fellows. For, as the song says: —

A most alarming state of affairs. Equality — or democracy, which is another word for it — is a political shibboleth believed in least by those who praise it most. It serves, however, as a subject for the hustings or for an address designed to prevent the digestion of an excellent dinner.

The oldest society or guild was the priesthood; it was composed of soothsayers — or truthtellers, as they preferred to be called. In ancient Rome it is said soothsayers did not speak when they met; they merely smiled, furtively, at one another and passed on. They functioned for centuries, and their services came to be sought even by rich and powerful kings; but, with enlightenment, the prophecy business, like celestial insurance business, declined. Its declension, if slow, has been sure, and it is followed now only by those whose minds are attuned to the ideal rather than the practical. The guild which has held its power with the greatest skill and tenacity is that of the lawyer. The functions of other practitioners cease with their deaths, but by the power of mortmain the lawyer is enabled to perpetuate his grasp upon another’s property and to continue the collection of fees and the distribution of costs until nothing is left. So dazzling are the operations of the law that one can scarcely bear to look upon them with the naked eye.

It has been claimed that the law, like justice, is blind. We all know that partially draped female figure holding with outstretched arm a balance or scales, her eyes bandaged that she may not see those who appear before her; but the bandage frequently slips, and occasionally the lady has been known to wink. I have found in the course of my studies that the law is a great respecter of persons — this is as it should be; but the chief glory of the law is the method by which it is dispensed. Especially in this country, the administration of the law compels the admiration of the criminal classes of the world, which flock to our shores, where they may operate among us without molestation. Indeed, the habitual exercise of compassion toward the rich and powerful criminal functions with such certainty that it seems hardly worth while to go through the process of trying him. Why should not the criminal be rewarded by a position of honor or emolument, or both, but that the members of the bar would be deprived of the right of exercising the godlike quality of mercy? And is not the law’s delay proverbial? The functioning of the law in our courts provides entertainment which sometimes serves to relieve the austerity of the proceedings. Not infrequently one hears an archaic Norman French spoken, usually with an Irish accent, by one who knows not what he is saying or why. Oyez! Oyez!

How favorably situated is the lawyer compared with the physician! A physician has a rich patient who is taken ill; the physician makes a grievous mistake in his diagnosis, the patient dies, and his colleague, the undertaker, comes into his own. With the lawyer it is not so. When he makes a mistake he asks for a ‘refresher,’ as fees were formerly called, demands a new trial, and so proceeds ad infinitum. For the law is not an exact science like mathematics, which is above all things monotonous. Take the apple problem worked out to a certainty by my distinguished ancestor, Sir Isaac Newton, or the lesser difficulty of the herring that has perplexed so many generations of scientists, which has been stated thus: How many herring can one buy for elevenpence if a herring and a half cost three ha’pence? The problem was finally solved by Einstein, working with real herring at our sisterly University at Princeton. In the higher mathematics the result is always the same; seven plus seven is always fourteen, seven multiplied by seven is always fortynine. When lawyers multiply they multiply words, and no one can foretell what the result may be.

‘The law,’ as defined by Lord Coke, ‘is the perfection of reason.’ It may be so, but lawyers are especially fortunate in that they have it both ways. One makes a fortune by creating difficulties which his brother lawyer makes a fortune by solving. It has frequently been observed that lawyers seldom take their own medicine. One of the greatest of them, Lord Mansfield, once said that the operations of the law were so uncertain that if anyone claimed a property that belonged to him he would give it up rather than face a lawsuit.

III

Several years ago at a gathering of distinguished jurists, in London, a gathering at which I may say, in all modesty, that my opinion was occasionally sought, I was asked what was the most important legal decision I ever made. For a moment I was at a loss — but only for a moment. I then told how I had reversed the decision of a lower court in a matter of great importance. A man had sued for damages sustained in falling into a coal hole which had been left open by the defendant. The lower court, finding that the plaintiff had been intoxicated at the time of the accident, decided that he had no case. The plaintiff was dissatisfied with this decision and came to my court for relief. After carefully reviewing the testimony my decision was: If the defendant was at fault in leaving an uncovered hole in the sidewalk of a public street, the intoxication of the plaintiff cannot excuse such gross negligence; a drunken man is as much entitled to a safe street as a sober one, and much more in need of it.

I remember that Sir Henry Dickens, who died not long ago, the son of the great novelist, was so much struck by the clarity and wisdom of my decision that he asked me if I would not arrange to sit with him at the Old Bailey next morning, he having a number of difficult cases to dispose of. Anxious to oblige him, I agreed, but I had no wig, without which it would be better to appear in court in a state of nature. Finally the Lord Mayor, who happened to be present, graciously offered to lend me his, and I may say in all frankness that it was thought to be very becoming, and its possession, if but momentary, enabled me to concur in Sir Henry’s decisions, which were generally considered to be among the most important handed down for many years in that famous Temple of Justice. I offer in evidence a copy of Pickwick with an inscription in the late jurist’s hand. (Evidence objected to as not germane; etc.)

It may profit us to inquire further into the nature of this science called the Law. It has been described, by one who had in him the makings of a Lord Chancellor, as the last result of human wisdom acting upon human experience for the benefit of the public. But it has also been said that the law is that which is forcefully asserted and plausibly maintained. It’s a nice point. Ribald jesters like William Shakespeare and Anthony Trollope have not seemed to understand the law in all its functioning. They refer to the delays incident to its application, as though it were something that could be clapped upon a sore spot, affording the sufferer instant relief. Such is not its nature — it has nothing in common with a plaster; rather it partakes of the nature of that succulent bivalve, the oyster, the shells of which are usually divided equally between those who seek its remedies, the edible portion, meantime, disappearing between or among its practitioners. As the song goes:

The Scotch proverb runs: ‘The law licks up a’.’

In former times and in happier countries than our own, the will of the king was the law. In the Empire of the Mikado, according to the late Sir William Gilbert, when Majesty speaks, when Majesty says kill the gentleman, the gentleman is as good as dead, and if he is dead why not say so? How eminently satisfactory and conclusive! How much suffering and suspense the beneficiary of the law, if so I may call him, is spared! The sentence and its execution are not two experiences separated by painful anxiety, but a quick translation from a world of suspense and sorrow to Elysian Fields. Mob law is sometimes deprecated, but not always. The learned Mr. Pickwick, it will be remembered, urged upon his friend, Mr. Snodgrass, the wisdom of shouting with the mob.

‘But suppose,’ suggested the inquiring Mr. Snodgrass, ‘ there are two mobs?’

‘Shout with the largest,’ replied the judicial Mr. Pickwick. Thus translating into action the old legal axiom, Vox populi, vox dei.

But, sir, I should be less than frank, as Woodrow Wilson used to say when he was about to becloud an issue with words — I should be less than frank if I did not refer to several of the law’s anomalies. Ignorance of it excuses no man, we are told, yet it fills a thousand volumes; this gives one furiously to think. Our jury system presents another difficulty. Some time since, while I was endeavoring to unravel the intricacies of income-tax law, — which changes every hour on the hour, and which might more accurately be called an outgo law, — I received a curt personal communication from the President of these so-called United States, desiring me presently to put aside whatever I might be doing and, for a ridiculously small fee, as a juryman serve my country. As I have been somewhat critical of our jury system, I did not seek to have myself excused, as a wiser man would have done, but at great inconvenience and for some days devoted myself unremittingly to unaccustomed duties.

For some reason I found myself to be extremely unpopular in the courtroom. Many were called but few were chosen, and once only was I among the number; the intelligence of a bountifully built colored (Colored? Nay, why should I not confess it? — black) woman, was almost invariably preferred to mine. The jury, after listening for hours to witnesses who, under oath, invariably contradicted one another, were subsequently charged by the judge and were then sent elsewhere, to discuss the evidence and to reach thereon an unanimous decision. ‘It must be unanimous,’ the jury was told — and presently it was. But in Washington, my Lud, where the supreme judges of the nation assemble, — gentlemen trained from youth to the law, accustomed to sift evidence and to render decisions from which there is no appeal, — these learned men are not required to be unanimous in their judgment, but by a vote of five to four, or, more clearly speaking, by a majority of one, make the law of the land. We are now anxiously awaiting a decision from a court of nine men housed in a building covering an entire block or square in the City of Washington, which building has been erected at a cost of thirteen millions of dollars — we await, I say, a decision as to whether or not words have meaning. My guess is that we shall presently be told, very solemnly, that they have not. I do not pretend to understand it. Why should a clot of mustard lodged in the digestive apparatus of one splenetic old gentleman affect the well-being of millions? I once sought an answer to this problem from a distinguished jurist, my friend the late James M. Beck, but his explanation, although delivered with that magnificent aplomb for which he was famous, only served to make darkness visible.

You cannot have failed to observe, sir, the extreme age to which lawyers live. Age does not wither them, nor does custom stale. This for the reason that they have no cares or anxieties of their own; the cares and anxieties of their clients touch them only as the sun touches the flower: it causes them to blossom like a rose. Into this trade, this opulent guild, you are about to induct me, and from the bottom of my heart I thank you, and any little law business which you may entrust to me will meet with all the attention it deserves and for a fee which will surprise you — pleasantly. And, sir, speaking of fees or ‘refreshers’: are you aware that it was once thought insulting to cross a lawyer’s palm with gold? To save him this humiliation he placed in the hood of his gown a small pocket into which the client surreptitiously placed a rouleau of golden guineas. This is only one of the pleasant little fictions with which grave lawyers divert themselves. Another is that barristers are supposed to work for the love of their profession; they are not, by law, entitled to fees which cannot, legally, be collected.

You may laugh at the delicacy of former times, but he laughs best who laughs last, and lawyers’ fees have become no laughing matter.

The question has many times arisen as to whether there are lawyers in heaven. Pursuing this interesting inquiry, I have discovered that there is one. How did he get there? He was refused admission by Saint Peter, but a gust of wind carried his hat inside the gate: he was permitted to fetch it. Instantly he got inside he clapped a halo on his head instead of a hat and mingled with the crowd. A writ of habeas corpus — in plain English,

‘ have his carcass ’ — was sought, but the motion was overruled. Judges sometimes decline to overrule motions from mere force of habit. For example: Two men, one a judge, the other a plain lawyer, were fishing in a rolling sea; the lawyer became very seasick and in his agony asked the judge to overrule the motion; his plea was denied and the lawyer died.

IV

But, sir, in addressing you I have no reason to suppose that others in my audience are as learned in the history of the law as you are. May I now address a word to them?

Before Blackstone began to deliver his lectures on the law in Oxford, and to publish them, the books available for students were few in number and poor in quality. The best of them was called by the summary title of Doctor and Student, but its full title is A Dialogue between a Doctor of Divinity and a Student of the Laws of England. It was published in Latin first, apparently, in 1523, its author being Christopher St. Germain, who was a member of the Inner Temple. It remained the leading textbook right down to the middle eighteenth century. What purports to be the eighteenth edition was published as recently as 1815. It was divided into many sections; the first four are (1) Of the Law Eternal; (2) Of the Law of Reason; (3) Of the Law of God; (4) Of the Law of Man. Section Thirteen explains what Synderesis is, which I suspect very few of you know, and which I shall be glad to explain upon receiving the usual retainer. There are other sections, but these need not detain us.

It would seem (I speak with becoming hesitation, as I have only recently become a Doctor of Laws) that until 1753, when Blackstone began his first course of lectures at Oxford, there was no method of teaching law at all; the student first picked up what law he could: he took his good where he found it. The first edition of Blackstone’s Commentaries was published in 1765. It is a noble book in four volumes, and, to an extent that cannot be true of any other branch of learning, Blackstone was the founder of modern legal education. If you will take the time to look into an early edition you may perhaps wonder at the complacent optimism with which he regarded the civil law — and even the savage criminal law — as the highest achievement of human wisdom, but I think you will admire his style. It is full and fruity; and we can well believe the truth of the story that he wrote with a bottle of port at his elbow. He wrote his book in lodgings in the Temple, and there is another story of his being frequently disturbed by the noisy guests of an author who lived on the same landing. One evening there was a knock on Blackstone’s door; upon opening it a little girl entered, carrying a jordan — ‘Please, sir, Mother begs the loan of a pot of coals.’ The little girl thought she was addressing Oliver Goldsmith.

It is a great tribute to Blackstone that his work, revised, and revised many times again, is still the foundation of the student’s textbook. But it is important to remember that there is something better than a knowledge of Blackstone, and that is the reputation for having it. If one enjoys such a reputation for learning and always appears to take the law seriously, one’s fortune is probably made. Lawyers have to deal with people in affairs which frequently concern their honor and invariably concern their pocket. These are much too sacred for them to permit anything in the way of wit or humor; the average client looks upon a jesting lawyer with as much abhorrence as a man would upon an archdeacon who was facetious at a funeral.

There is — there may be one exception to this rule. Perhaps when one becomes a judge a joke may be permitted, but men do not usually become judges until they are old. May I parody the French saying: ‘If the young lawyer only dared; if the elderly judge only could.’ I am indebted for these details to a Judge of the King’s Bench of the High Court of Justice, a man of such exalted rank that I hesitate to call him friend; he almost certainly would not like it, and I might be accused of boasting of his acquaintance.

But, sir, this is my first brief. I, however, permit myself to inquire how could you know, even with all your knowledge — how could you know, when you advised me of the honor which the University of Pennsylvania proposed to do me, that I had studied my law out of a copy of the first edition of Blackstone’s noble book? It is my intention to ask you, sir, to accept these volumes on behalf of the University of Pennsylvania and place them in its Library. I am aware that my action may be criticized, that it may be likened to my kicking down the ladder by which I climbed to my present exalted position; but having completely mastered this science, having torn the heart out of this mystery, I feel that Blackstone has done for me all that lies within his power; I have no further use for him. Let future generations point to these volumes as those out of which Eddie Newton learnt his law. You, sir, doubtless know but I was surprised to learn that Blackstone, the great legal scholar, was not a particularly successful judge; or it may be that his fellow judges, knowing less law than he and having the power to reverse him, notwithstanding his learning, took delight in so doing — for, after all, judges are but men, and to err is human. But Blackstone’s Commentaries is a landmark of English literature as well as of the law. It will be found upon the list of one hundred of the most famous books in our language published some years ago by the Grolier Club of New York, and our literature stretches its magnificent length from the time, more than twelve hundred years ago, when the angel visited Cædmon in the monastery at Whitby and endowed him with the power of putting into English verse the story of the fall and rise of man.

Blackstone’s Commentaries on the Laws of England anticipates by some fifty years the famous compilation of the laws of France, usually referred to as the Code Napoléon, which, incidentally, was the work of many men, whereas Blackstone did his job singlehanded. One thinks of Dr. Johnson’s famous retort when Boswell reminded him that it took forty Frenchmen forty years to compile their dictionary, whereas Johnson believed that he could do his work, alone, in three. ‘Sir,’ he said, ‘this, then, is the proportion. Forty times forty is sixteen hundred; as three is to sixteen hundred, so is the proportion of an Englishman to a Frenchman.’ Is it any wonder that the French find little merit in Johnson, remarking that he had the manners of a beadle and the inclinations of a constable? Seventy editions of Blackstone have been printed in English, fifty-six in French, eleven in German, nine in Italian. It has been printed at least once in most of the languages of Europe, also in Chinese. In all, it has been printed more than four hundred times, and by actual count has caused eight million nine hundred and seventy-one members of the bar — that Mutual Admiration Society of which I have become a member — to fall into profound and refreshing slumber. Like causes produce like effects; I must be careful lest my words have the same soporific quality.

It has been a great pleasure to me to prepare this, my first brief. The lines of Pope, assisted by Horace, may occur to you, my Lud: —

But I am not afraid of being laughed at, for, as Charles Lamb has said, ‘one laugh is worth a hundred groans in any state of the market.’ I wish that I might write songs, for he who writes the songs of a nation need not care who may make its laws. As I look around me, slumber seems to have sealed the eyes of those whom I hoped might be my auditors. May I arouse them with the words of a song sung by England’s most enduring Lord Chancellor?