Old Times at the Law School

IN the middle of the line of pictures nanging between the delivery desks in the reading-room of the Harvard Law School is a striking group of three-quarter length figures that suggests a Copley, but is in reality the work of Feake, a young Newport Quaker of about a century ago. A stiff, red-coated gentleman stands at a table surrounded by admiring female relatives. He is Isaac Royall, Brigadier-General of the Province of Massachusetts Bay, member of the Council, stanch upholder of King George. His magnificent old mansion in Medford is still standing, and of its owner it is comfortably recorded that “no gentleman of his time gave better dinners or drank costlier wines.” But after the battle of Lexington, like a good Tory, he followed the British to Halifax, and thence to England, where he died.

By his will, executed in 1778, it appeared that he cherished no animosity against the rebellious subjects of his king; that on the contrary he had left a number of charitable and educational bequests for their benefit. Harvard College did not fail to receive his due consideration. His attitude toward it, moreover, was of an oddly modern type. He was evidently a believer in the professional schools, or would have been had they existed. At least he did what he could to broaden the college into a university, for he left two thousand acres of his land in Granby and Royalston, “to be appropriated towards the endowing a Professor of Laws in said Colledge, or a Professor of Physick and Anatomy, which ever the said Overseers and Corporation shall judge to be best for the benefit of said Colledge.” This gift was allowed to lie idle until 1815. Then the Corporation roused itself, selected the first alternative of the gift, and appointed Isaac Parker, Chief Justice of Massachusetts, first Royall Professor of Law. This chair he held till 1827, but owing to his duties on the bench, was able to lecture only during the summer term of college. In the words of good Dr. Peabody, “The income of the Royall Professorship was barely sufficient to pay for a course of twelve or more lectures to each successive senior college class. Judge Parker’s course comprised such facts and features of the common and statute law as a well-educated man ought to know, together with an analysis and exposition of the Constitution of the United States. His lectures were clear, strong, and impressive; were listened to with great satisfaction, and were full of materials of practical interest and value. He bore a reputation worthy of his place in the line of Massachusetts chief justices; and the students, I think, fully appreciated the privilege of having for one of their teachers a man who had no recognized superior at the bar or on the bench.”

Now it is to Chief Justice Parker that we should look with especial veneration, as the following extracts, verbatim, from the College Records will show: —

“At a meeting of the President and Fellows of Harvard College, May 14th. 1817. Present. 1 The President 2 Mr. Gore 3 Judge Davis (Treas.) 4 Mr. Lowell 5 Judge Phillips. . . .

“The Royall Professor of Law having represented to this Board, that in his opinion and in that of many friends of the University and of the improvement of our youth, the establishment of a School, for the instruction of Students at Law at Cambridge, under the Patronage of the University, will tend much to the better education of young men destined to that profession, and will increase the reputation and usefulness of this seminary; and the Corporation concurring in these views, it was voted as follows. —

“1. That some Counsellor, learned in the Law, be elected to be denominated UNIVERSITY PROFESSOR OF LAW; who shall reside in Cambridge, and open and keep a school for the Instruction of Graduates of this or any other University, and of such others, as, according to the rules of admission as Attorneys, may be admitted after five years study in the office of some Counsellor.

“2. That it shall be the duty of this Officer with the advice of the Royall Professor of Law, to prescribe a course of study, to examine and confer with the Students upon the subjects of their studies, and to read lectures to them appropriate to the course of their studies, and their advancement in the science, and generally to act the part of a Tutor to them in such manner as will best improve their minds and assist their requisitions. . . .

“6. As an excitement to diligence and good conduct, a degree of Bachelor of Laws shall be instituted at the University, to be conferred on such Students as shall have remained at least eighteen months at the University School, and passed the residue of their noviciate in the office of some Counsellor of the Supreme Court of the Commonwealth, or who shall have remained three years, or if not graduates of any College, five years, in the School, providing the Professor having charge of the same shall continue to be a practitioner in the Supreme Judicial Court.

“7. The Students shall have the privilege of attending the lectures of the Royall Professor of Law free of expense, and shall have access to the other Lectures of the University usually allowed to be attended by Resident Graduates, without charge, or for such reasonable Compensation as the Corporation, with the assent of the Overseers, shall determine.

“Voted That the foregoing votes instituting a new department at the University be laid before the Overseers that they may approve the same if they see fit.”

Note the timid pride of the last vote. “A new department at the University ” had indeed been “instituted,” with a considerable future before it. At the same meeting the Hon. Asahel Stearns was voted first University Professor, and a committee duly appointed to apprise him of the honor.

Stearns was a Harvard graduate, a former member of Congress, and enjoyed the highest professional reputation. With Chief Justice Shaw he revised the Massachusetts Statutes, and his work on Real Actions was long the standard text on the subject. “He was warmly interested in the public charities of his day, exercised a generous hospitality, and was equally respected and beloved. He was a man of grave and serious aspect and demeanor, but by no means devoid of humor, and was a favorite in society. His wife was a lovely woman, ” says Dr. Peabody, “full of good works; and there was never a sick student in college whom she did not take under special charge.”

Professor Stearns was much more than first University Professor of Law in the new school. He was the entire faculty. His office, in Harvard Square, was the school; and, as good Dr. Peabody sententiously remarks, “a building, a library, and an organized faculty were essential to make the School attractive. ” Some apologies for the first two were presently provided in a very old, low-studded building on the site of the present College House, where a so-called lecture-room and an equally dubious library were fitted up. But the number of law students rarely rose above eight or ten, and in 1829 had actually run down to one. At this stage Mr. Stearns naturally resigned. Parker had already done so, and the existence of the Law School was about to terminate of mere inanition when the author of Dane’s Abridgment took it into his head to follow the example of his English forerunner, Viner, and endow a Professorship of Law with the profits of his book. His aim was to get some one who should teach the principles of jurisprudence systematically and scientifically. To that end he offered the college $1000 for the foundation, stipulating that the first professor should be Joseph Story of the United States Supreme Court. Judge Story had already declined the Royall Professorship, and was far from willing to accept this new one; but as its founder stoutly insisted on withdrawing the gift unless the chair was filled in accordance with his wishes, Story finally consented.

At the same time the Royall Professorship was filled by John H. Ashmun, and the real history of the Law School began. Story’s fame was already world wide, and the public interest in the Supreme Court and its members was at a pitch never equaled before or since. The school broadened into national reputation. The library rapidly increased. The number of students in the very first year of the new era was no less than thirty, and rose by leaps and bounds to one hundred and fifty. In spite of the liberal expenditures for the library there was a handsome surplus of funds. In three years the need of better quarters became imperative, and again Mr. Dane came forward with a large contribution, and a temporary loan of more. In 1832 Sumner wrote: “ Dane Law College (situated just north of Rev. Mr. Newell’s church), a beautiful Grecian temple, with four Ionic pillars in front, — the most architectural and the best built edifice belonging to the college,— was dedicated to the law. Quincy delivered a most proper address of an hour, full of his strong sense and strong language. Webster, J. Q. Adams, Dr. Bowditch, Edward Everett, Jeremiah Mason, Judge Story, Ticknor, leaders in the eloquence, statesmanship, mathematics, scholarship, and law of our good land, were all present,— a glorious company.”

Mr. Ashmun, whose mental powers had always been far in advance of his physical, died at the early age of thirtytwo, He is perhaps the most brilliant figure in the whole history of the school. Though so young he had already “gathered about him all the honors, which are usually the harvest of the ripest life.” At the bar, where he was admitted at an early age, “he stood in the very first rank of his profession, without any acknowledged superior.” He filled the Royall Professorship with distinguished ability. His advanced position as an educator, as well as the quality of his work, may be inferred from the fact that in the curriculum of those early days he included a course of lectures on Medical Jurisprudence of such value that they were published after his death. To quote further from Professor Story, “ Although his learning was exceedingly various, as well as deep, he never assumed the air of authority. On the contrary, whenever a question occurred, which he was not ready to answer, he had no reserves, and no concealments. With the modesty, as well as the tranquil confidence, of a great mind, he would candidly say, ‘ I am not lawyer enough to answer that.’ In truth, his very doubts, like the doubts of Lord Eldon, and the queries of Plowden, let you at once into the vast reach of his inquiries and attainments. There is not, and there cannot be, a higher tribute to his memory than this, that while his scrutiny was severely close, he was most cordially beloved by all his pupils. He lived with them upon terms of the most familiar intimacy; and he has sometimes with a delightful modesty and elegance said to me, ‘I am but the eldest Boy upon the form.’ Owing to ill health, he could not be said to have attained either grace of person or ease of action. His voice was feeble; his utterance, though clear, was labored; and his manner, though appropriate, was not inviting. . . . He felt another disadvantage from the infirmity of a slight deafness, with which he had been long afflicted. His professional success seems truly marvelous. It is as proud an example of genius subduing to its own purposes every obstacle, opposed to its career, and working out its own lofty destiny, as could well be presented to the notice of any ingenuous youth.” In May, 1833, his long consuming illness took a suddenly fatal turn, and he expired peacefully in the night, the only person at his bedside being one of his devoted pupils, young Charles Sumner. The Royall Professorship, thus sadly vacated, was accepted by Simon Greenleaf, Reporter of the Supreme Court of Maine. Then were the days of the giants. For twelve years those twin kings of American jurisprudence, Story and Greenleaf, held absolute dominion, and moulded a whole generation of lawyers. More than eleven hundred students sat under their instruction. Good textbooks were seriously needed, and both Story and Greenleaf addressed themselves to the task of producing them. Greenleaf published his famous Evidence, and a number of other works, but was quite eclipsed by the labors of his energetic colleague. For Mr. Dane’s scheme of systematic teaching had included the stipulation that the occupant of his professorship should deliver and publish a series of lectures on the following five subjects: Federal Law, Federal Equity, Commercial and Maritime Law, the Law of Nations, and the Law of Nature. Story at once began on this list, but found it ramified so fast that at the time of his death he had become the author of no less than thirteen volumes of treatises, all of international authority. He seems to have been a writer by nature, one of those men to whom the sight of a quire of foolscap and the feel of a pen between the fingers are all that is necessary to crystallize thought into a form to be seen of all men. In court he was constantly writing poetry. Here is a sample, found in one of his notebooks, doubtless set down with a grave face and every appearance of interest in the case before him: —

LINES WRITTEN ON HEARING AN ARGUMENT IN COURT.

When not writing, the judge was talking. He was one of the most tremendous talkers that long suffering Cambridge has ever heard. It is still remembered how, on his trips into Boston by the daily omnibus (fare twenty-five cents), he entertained friends and strangers alike by his unquenchable stream of pleasantries, anecdotes, and sage observations. His lectures at the school carried away his listeners with the pure enthusiasm of the speaker. His extraordinary memory, copious learning, and long practical experience, combined with his ready invention of illustration, and wonderful fluency of expression, often caused him to wander widely from the starting-topic, and sweep with amazing facility over far-distant regions of theory or practice, or even personal reminiscence. Alas that a veracious chronicler must set down that in those bygone times the young idea in process of being taught was no more scrupulous in evading that process than are the earnest disciples of the present. “It was easy,” says a student of that day, “to draw the old judge from, the point under consideration to a lengthy account of Chief Justice Marshall and his fellows . . . and this was apt to be done every day.” Professor Ashmun apparently tried to restrain and even counteract this tendency of the judge, and there is a tale to the effect that Story once remarked somewhat testily, “Now Ashmun, don’t you contradict what I say. I believe you would try to correct me if I told you that two and two make four.” “Of course I should,’retorted Ashmun instantly, “they make twenty-two.”

Story’s interest in the school was wonderful. It was his pet and pride.

He was continually devising new and delightful plans for its improvement. He doggedly refused any addition to his original salary of $1000 a year, insisting instead that whatever more was offered him should be expended in increasing the Law Library, improving Dane Hall, or accumulating the fund which now forms the foundation for the Story Professorship. It is estimated that his gifts to the school, in this way alone, amounted to $32,000. His lectures were periodically interrupted by attendance on the court at Washington, but he always returned at the earliest moment, and with the greatest enthusiasm. After each absence he would enter the library and hold a regular reception, shaking hands with each student, and making affectionate inquiries after his success. His personal interest in every pupil was as extraordinary as it was unflagging, and created the most intimate and confidential relationships. The following incident is told by the author of Two Years before the Mast, and well illustrates the general tone of the school and the kindly nature of the Dane Professor:

“ Soon after I had left the School and was admitted to the bar, I had occasion to argue a motion for an injunction before him in chambers, ex parte. The case involved some points of general interest in equity practice and principles, as it related to the deceptive use of trademarks, but the granting of the injunction was matter of little doubt. The judge appointed the library of the Law School as the place for hearing the motion, gave notice to the students, and had them nearly all present. This was partly as an exercise for the school, but in a great degree — as I know from the direction which he gave the hearing, requiring me to develop the principles and facts, and from his previous introduction of the case to the school — to afford me an opportunity of appearing to advantage before so good an audience, some of whom had been my fellow students.”

G. W. Huston, L. S. 1843, gives another glimpse of Story in the lectureroom: “In the winter of ’42, Mr. Webster and Lord Ashburton, accompanied by Lord Morpeth, were at Cambridge a length of time settling the Maine boundary question. These three men were in the habit of attending Judge Story’s lectures, — access to the library being what brought them to Cambridge. After an exhaustive consideration of some point, when Judge Story had told what Lord Mansfield thought about it, and Chief Justice Marshall’s opinion, and when Lord Morpeth had listened with his lips open and his heavy eyelids closed in a negative attitude, for he had inherited gout of many generations, Story would suddenly turn to the old Lord sitting on a bench with the students, and inquire,‘And what is your opinion, my lord ? ’ Morpeth would suddenly change his whole countenance, gather up his lips and his eyebrows, his eyes sparkling, and would deliver an exceedingly interesting opinion on the point under consideration.”

Two portraits of Story hang in the school, both noticeable for the moonlike red face and its aspect of extraordinary benevolence. Huston says: —

“ Story was a low, heavy-set man, — very fair skin, blue eyes, with but little hair on his head, being very bald save a little tuft on the top of his forehead, which he often combed during lectures with a fine comb carried in his vest pocket. He was easy of access and beloved by the young men. . . . He kept up constant letter-writing to and with many of the great men of Europe. Professor Greenleaf was taller, black hair in profusion, and keen black eyes. I have heard him say, I believe, he was forty years old before he began studying law in Maine where he was raised. He was not popular with the boys, being sometimes sarcastic. His mind was acute and his reasoning hair-splitting.”

Greenleaf, indeed, was in many respects the exact opposite of his colleague. In the words of Professor Parsons: “Judge Story and Professor Greenleaf worked together harmoniously and successfully, and perhaps the more harmoniously because they were so entirely different. With much in common, for both were able, learned, and of the most devoted industry, there were other traits that belonged to one or the other of them exclusively. Greenleaf was singularly calm, finding strength in his very stillness; always cautious, and therefore always exact. Story was as vivid and impulsive as man could be. His words flowed like a flood; but it was because his emotions and his thoughts demanded a flood as their exponent. . . . Story’s manner was most peculiar; everybody listened when he spoke, for he carried one away with the irresistible attraction of his own swift motion. And Greenleaf,somewhat slow and measured in his enunciation, by the charm of his silver voice, the singular felicity of his expressions, and the smooth flow of his untroubled stream of thought, caught and held the attention of every listener as few men can. ”

Charles Sumner, who served as assistant instructor for a time before his trip to England, makes the following interesting comparison in a letter from London written to Judge Story in 1838 :

“You know Lord Denman intellectually better than I; but you do not know his person, his voice, his manner, his tone, —all, every inch, the judge. He sits the admired impersonation of the law. He is tall and well-made, with a justice-like countenance: his voice and the gravity of his manner, and the generous feeling with which he castigates everything departing from the strictest line of right conduct, remind me of Greenleaf more than of any other man I have ever known.”

Again, in 1844: “Greenleaf takes the deepest interest in the unfortunate church controversy, uniting to his great judicial attainments the learning of a divine.”

There was indeed a strong Puritanical cast about the author of the Treatise on Evidence. This is observable in his portrait in the reading-room. He used to annotate a portion of the Bible every day; and he published an attempt to apply the rules of evidence to the writings of the Evangelists, which proved more of a curiosity than a success. In one of his letters he describes himself as cultivating cheerfulness as a religious duty. What few specimens of his wit remain, however, lean toward the ponderous, and would tend to prove that his cultivation was carried on upon a somewhat barren soil. In his sitting-room he would write or study for hours, surrounded by his family and their friends, conversation, games, music, and the thousand distractions of a household that was distinctly a “going concern,” yet absolutely serene and undisturbed, so great were his powers of concentration.

Thus under these two great masters, occasionally assisted by lesser lights, the school grew and prospered exceedingly, till the increase of students and library demanded an addition to Dane Hall. Accordingly the long transverse portion of the present fabric was built, and opened in 1845 with brilliant ceremonies. Judge Story, in presiding at this occasion, was unconsciously performing one of his last good offices for the school. His health had been worn away by his triple exertions as teacher, author, and judge. For thirty-three years he had missed but one term of court at Washington, yet when he realized he must give up some of his work he preferred to keep that at Cambridge, and was just arranging his resignation from the bench when he was stricken with his last sickness. For over two years Professor Greenleaf, having been promoted to the Dane Professorship, performed almost all the work of the school, when he, too, felt his health giving way, and resigned His chair. The Dane Professorship was then accepted by Theophilus Parsons, of Brookline. He was at that time in a large Boston practice, especially in Admiralty and Marine Insurance, his favorite subjects, daily leaving his house so early and returning so late that he had hardly any home or family life at all; and he used to tell how his young son one day inquired, “Mother, who is that nice gentleman that sometimes spends Sundays here, and seems so fond of me ? ”

The Royall Professorship, left vacant by Greenleaf’s promotion, had meantime been held for a year by the son of Chancellor Kent, and was then filled by Joel Parker, Chief Justice of New Hampshire. Under him and Parsons the main work of the school went on for nearly a decade. The University Professorship was revived for a year, with F. H. Allen as incumbent, but he resigned in 1850. Other well-known names are associated with this period as instructors or assistants, among them R. H. Dana,Sr.,GeorgeTicknor Curtis, and the author of Cushing’s Manual. The eminent Wheaton, appointed to lecture on the Law of Nations, died immediately afterwards, and Edward Everett, appointed some years later, never took the chair.

Again, as in the previous era, the two principal figures claim our attention. Each curiously resembled the former occupant of his chair. Parsons was a fascinating lecturer, a most genial and social man. I am indebted to Professor Langdell for the following characteristic reminiscence of him : “ It was the custom in the old days, on the first day of each term, for the students to assemble in the library for the purpose of meeting the professors, and listening to an address from one of them. . . . On one occasion, when Professor Parsons delivered the address, he explained to the new students that . . . they had to study English decisions very diligently. ' Do you ask me, ’ said he, ' if we have not achieved our independence, if we are still governed by England ? No, gentlemen, we have not achieved our independence. England governs us still, not by reason of force but by force of reason.’ ” Parsons was really more of a littérateur than a lawyer. He openly expressed his dislike of, and inability for, the more technical parts of the law, such as Pleading and Property. He had a certain poetic dreaminess of temperament that, while apparently not interfering with his professional success, did seriously affect his financial affairs, which constantly suffered from his credulity and over-sanguine expectations. An indefatigable writer of textbooks, he possessed that unusual legal accomplishment, — a charming literary style. He clothed his propositions in such a pleasing form that, like sugar-coated pills of legal lore, they were swallowed and assimilated with the minimum of effort and the maximum of enjoyment. His works were even more popular than Story’s. It is said that his Contracts achieved the largest sale of any law book ever published. Seven other treatises stand to his credit, on one of which alone he is reported to have netted a profit of $40,000. His lectures, for clearness, scope, and literary excellence, have often been compared to those of Blackstone. He delighted in laying down broad views of the subject, sometimes carrying his generalizing to an extreme.

Chief Justice Parker, on the other hand, though deeply respected for his thoroughness, was precise, minute, and involved to the point of obscurity. If a single step of his logic was lost by the listener, farewell to all hope of following to the conclusion. His law on any given question was sound, absolutely and exasperatingly sound; but he could no more give a comprehensive view of a whole topic than an oyster, busy in perfecting its single pearl, can range over the ocean floor. In private life, however, the Chief Justice was always interesting and often witty. It is worth while to quote his account of his tribulations after having been prevailed upon to leave the New Hampshire court and accept the chair of Royall Professor at Cambridge: “ I had no experience, nor even knowledge of the details of the service to be performed, as the President well understood; and on taking my seat, at the March term, 1848, having had no leisure for any preparation whatever, I encountered difficulties which seemed formidable, and were certainly embarrassing. I found that, ... to my dismay, Shipping and Admiralty was upon my list for that term. My residence in the interior of a state which had had but one port, the business of which was nearly all transacted in Boston, had given me no occasion to become acquainted with that branch of the law, and I tried in vain to escape by an exchange. Professor Greenleaf’s answer, that he was then in the middle of his topics for the course, showed that he could not comply with my request. So, frankly stating the difficulty, I told the students I would study the textbook with them. ... In June, Professor Greenleaf’s health failed, and he left the School . . . thus wholly on my hands for the remainder of the term, with an experience of something more than three months to direct me.

“Upon a new division of topics in the course of the vacation, with Professor Parsons, who succeeded Professor Greenleaf, I was desirous of retaining Shipping on my list, in the hope that my studies on that subject, during the last term, might avail me somewhat in another course of lectures; but the answer that his practice had been in Boston, and that branch of the law a specialty, could not but be admitted as a conclusive reason why I should give it up; as I did also the other textbook which had served as the basis for my other course of lectures ; so that I entered upon my second term with the necessity of entire new preparation so far as lectures were concerned.”

In appearance and character Parker was a type of the best of the New England country gentlemen of his day. He was of so dignified and commanding a figure that a stranger, even passing him on the street, instinctively felt the presence of a great man. His portrait in the Law School, like those of Parsons and Washburn, is vouched for by men who sat under him as an excellent likeness. He was of high breeding, constant hospitality, strong religious convictions, and sometimes confessed in private to a passionate love for the British poets. He was a man of inflexible integrity, and a blunt, outspoken sincerity rivaling that of President Lord, of Dartmouth College fame, to whom it is said he once exclaimed, in the heat of an argument, “ Sir, this modern education is all a humbug,” and who instantly replied, with great heartiness, “Judge Parker, I know it is. ”

If Parsons was suaviter in modo, Parker was fortiter in re. Polemics were his delight. A good stand-up fight was meat and drink to him, and he entered it with a genuine “neck or nothing,” “never say die ” relish. For spicy reading, and at the same time for an excellent history of the Law School, there are few articles better than a pamphlet he published in reply to some criticisms on the school, which appeared in one of the law reviews of the time. His intense conservatism, which brought him into unpopularity during the Civil War, is seen in the following anecdote by Governor Chamberlain, of South Carolina: “About the beginning of the war, Judge Parker was lecturing on the suspension of the writ of habeas corpus, expressing himself very strongly against it. One of the students interrupted him by stating (what he thought to be) a very strong case of treasonable acts against the government, and asked him if he would not suspend the writ of habeas corpus in such a case. ' No, sir, ’ said the judge, ‘ I would not suspend the writ of habeas corpus, but I would suspend the corpus.’ ”

In 1855 the University Professorship was again revived by the exertions of Parsons, who carried the appointment of Emory Washburn, of Worcester, at that time just quitting the governorship of Massachusetts. This chair he held till 1876, although its name was changed to the Bussey Professorship, in consequence of large additions to its foundation by Benjamin Bussey, of Roxbury. Washburn had been a student at the school in the old “one-man corporation ” days of Asahel Stearns, and had built up an enviable practice in the heart of the Commonwealth. His success, single-mindedness, and high integrity had won for him a notable degree of public confidence. He was promoted from the bar to the bench. He was elected successively to both branches of the legislature. He was actually nominated for the governorship, the last successful candidate of the old Whig party, during an absence in Europe, and — incredible as it sounds to-day — without his own knowledge.

His interests were broad and varied. He was foremost in prison reform and in the direction of various benevolent institutions. He was an enthusiastic antiquarian, especially in New England town history. He was a copious writer for the press, and was in constant demand as a speaker. His public spirit was unflagging and direct. Governor Bullock tells of seeing him, during wartime, marching as a private in the “home guard” at a military funeral. When Bullock expressed his surprise at the humble part taken by a former chief executive, Washburn, at that time considerably over sixty years old, replied quite simply, “Oh yes, I have done this often, sometimes at night. I like to help along when I can.”

Washburn had an enormous capacity for work. He seemed to have mastered the art of living without sleep. From an early morning hour till far into the night he was to be found at the school in his “private ” office. Never was there a more delicious misnomer, for he was deluged with an unending stream of callers, friends, strangers, students, politicians, and clients. Despite them all, however, and the demands of his teaching and practice, he managed to produce a number of professional works of the highest excellence, notably those on Easements and on Real Property, which, in constantly appearing new editions, continue to be the standards of to-day.

As a lecturer he was delightful. Mr. Justice Brown, who sat under his instruction, characterizes him as “ a strikingly handsome man, an intellectual man, whose eloquence made even the law of contingent remainders interesting, and the statute of uses and trusts to read like a novel.” So great was his popularity that it was not uncommon for undergraduates and members of other departments to stroll over to the law lectures “just to hear Washburn awhile.” His prodigious power of throwing himself body and soul into the case before him, be it that of actual client or academic problem, joined to his long experience and public prominence, gave assured weight to his words ; while his wonderfully winning personality, his genial spirit and his well-remembered hearty laugh gained him the love and esteem of every listener.

Indeed, Professor Washburn will go down in the history of the school, above all his professional excellences, as preeminent for his humanity. Mr. Brandeis, in his sketch of the school, epitomizes him as the most beloved instructor in its annals. Every student seemed the especial object of his solicitous interest. He not only acted as director, confessor, and inspirer of his pupils during their stay in Cambridge, but somehow found time to correspond with them, often for years, after they had scattered throughout The length and breadth of the land. The spirit of the man speaks in every line of the following extract from his final address to the students. He is talking of the young LL. B.’s icy plunge into the actual work of the profession: —

“ In the first place, he finds himself, upon entering it, alone. Friends may cheer him and encourage him at starting by their good wishes, but they cannot divide with him the feeling of responsibility which weighs upon him, or the sense of mortification at defeat, if he fails. On the other hand, he soon finds that the field is an open and a fair one, and that nothing stands between him and success but his own want of preparation for the struggle. Birth and family can neither help nor hinder him in the manly contests in which he is to engage. What a client looks for in a lawyer is, not the pedigree of his ancestors, but fidelity in himself, an ability and a knowing what to do and how to do it, and without these he will not trust his own son with his cause. In the next place, there is that dreadful waiting for business, through which almost every one has to pass, before he can feel sure that he is ever to get a foothold in the profession. Every client seems to be forestalled, and every spot of ground to be crowded as he looks around him, and listens in vain for a welcome knock at his office door. It was wittily said by Mr. Ashmun, formerly a professor in this school, that a young lawyer’s prospects were like a contingent remainder which requires a particular estate to support it. But let him not lose heart, death, discouragement, temptation to office, and now and then the allurements of a rich man’s daughter are constantly thinning the ranks of the profession, and, before he is aware of it, he finds new aspirants waiting for his place, and enjoying the progress he has made. The changes which are wrought in this way in the body of the profession are wonderfully rapid. It has been estimated that it is [ ? they are], upon an average, entire every fifteen years. And if, while thus waiting, the young lawyer will fill up his involuntary leisure with well-directed study, he may confidently look for the reward which he will be sure to reap in the growing confidence and respect of those around him. ”

But enough of the instructors of those days. What of the students themselves, the embryonic LL. B.’s who filled the corridors of Dane Hall and assisted in holding down its benches ? Then as now a large proportion of every class graduating from the college flocked somewhat blindly to the Law School. But most members of the school were not collegians. The national reputation it early attained drew recruits, some entirely raw, some with a little office training, from even the most remote parts of the country. Aspirants from the middle West elbowed ambitious lads from faraway California, and up to the Civil War the catalogues were full of fine old family names from the South. Requirements for admission there were none; for a degree the sole stipulation was enrollment as a member of the school for eighteen months. Happy days of lightly won degrees ! In the college itself the M. A. was merely a premium awarded to any one who survived his A. B. for five years. Many graduates refused to take it on account of its utter worthlessness, and B. R. Curtis, of ’32, described by a contemporary as “ by far the first man of his class, with the highest legal prospects before him,” stirred up a regular revolution on the subject.

Short as was the school course in those days, even shorter periods of residence were common; there was a regular arrangement by which a man on payment of twenty-five dollars could enroll in the school for half of one term. As may be easily imagined, such a brief exposure to the classic Cambridge influences produced little effect on the more erratic spirits of the school; and the quaint legend of the manner in which a poor but ingenious candidate from “down East ” managed to save all expense for light, while preparing himself for college, by studying in a lighthouse is not more incredible than that of the newly fledged LL. B. who was discovered setting out for legal conquests in the far West equipped solely with an axe and a demijohn of ink.

Once fairly started on the legal path, the student of those days found the life by no means hard. His textbooks were lent to him by the school, the library having a vast stock of duplicates of the standard treatises. These he studied, or not, as he felt inclined. One of the instructors of that golden age admits in his memoirs that though “a list of books was made up, for a course of study and reading, which was enlarged from time to time, it cannot be strictly said that this course was prescribed, for nothing was exacted. ” Lectures began at eleven and ended at one. Usually the same professor occupied the chair for both hours, changing his subject at noon. Saturday was then dies non. Of the lectures themselves there were but two notable differences from those of to-day, — a charming tendency, especially in the reign of Story, to wander from the subject in hand into fields of reminiscence and general theory as pleasant and almost as instructive, and the fact that a textbook formed the basis of the work. But this was often lost sight of and overlaid with a colloquial expanding of general rules, putting questions on parallel cases, hypothetical or actual, queries from the students, and expressions of opinion, which must have been surprisingly like a lecture of to-day. Thus Professor Parker gives a lively account of his first experience as lecturer: —

“I was to deliver a lecture upon a certain topic, but there was a textbook which furnished the foundation. ... It was not expedient for me to state the propositions in the words of the text. The students were acquainted with them already. It would be of little advantage to vary the phraseology. If the textbook was a good one, how was I to deliver a lecture without a 4 departure,’which lawyers well know is, in pleading, obnoxious to a special demurrer? I availed myself largely of my privilege, however, and having made an earnest request to the students to ask me any questions on their part, they availed themselves of their privilege. The School was at that time a very strong one, and so we had for some time a lively interchange of interrogatories. It was not difficult to perceive that the students were disposed to try the new Professor, and I enjoyed it, for, having been fifteen years upon the Bench, I felt much more at home in answering questions than I did in delivering Law lectures, properly so called.”

The conversational method, indeed, seems to have been coeval with the very beginnings of legal instruction in this country. It was used in Reeve’s private Law School, begun in 1795, at Litchfield,Conn., and lasting till 1833. This school attained a very high standard of excellence, and over one thousand pupils attended it. Much the same method was also used in Judge Howe’s short - lived school at Northampton, Mass., begun in 1823, and of very high character, but collapsing when its ablest lecturer, Ashmun, on whom the instruction devolved almost entirely, accepted the Royall Professorship at Cambridge in 1829. His lectures are remembered for their clear grasp of the subject and the care with which he frequently put his classes through exact and searching oral examinations.

Despite such individual points of excellence, the general scheme of instruction at the Law School was for many years in amazing confusion. The courses were designed to cover two years’ work; but, apparently on the principle that the law has neither beginning nor ending, only half of them were given in any one year, so that it was entirely luck whether on entering the school you found yourself at the beginning of the course or plunged into the middle of it.

A considerable offset to this disjointed state of theory was the attention paid to practice in the moot courts. These, if not invented, were certainly brought into great prominence by Judge Story. One was held at least every week, and in the height of the system on Monday, Wednesday, and Friday afternoons. One of the professors presided, and all the students were expected to attend and take notes ; though this operation usually consisted in copying down verbatim both the briefs, which, in those days of expensive printing, the counsel slowly read aloud from manuscript. The cases were always on agreed facts, often drawn from the actual experience of the presiding justice. Twice a year there were regular trials before a jury drawn from the undergraduates, or sometimes, with a delicate humor, from the divinity students. These affairs were made the occasion for a sort of solemn festival, and the court-room was crowded to its utmost capacity. Many a great name in the history of the bench and the bar won its first recognition in these mimic combats. In point of fact, noisy applause and uproarious expressions of approval rather spoiled the sought-for dignified effect of a real court, and were sometimes excessive.

The law clubs, too, were an important element in the work of the school. They were named for great legal writers, — the Fleta, the Marshall, etc. The Coke Club was of immemorial antiquity, and usually contained the most brilliant members of the school. The average number of students in a club was from fifteen to twenty. They met in some of the smaller rooms in Dane Hall. On any case there was but one counsel for each side and one judge. The cases were usually those which had been announced for approaching moot courts; so interest and attendance on the latter were always kept at a high level.

Besides these there was a Parliament or debating society, which met once a week. Political interest, especially just before the war, ran very high; and the Southern students, ever craving for social and political leadership, particularly delighted in public speaking and argument. With the outbreak of hostilities this large element in the classes disappeared, never to return, and the attendance fell, at its minimum in 1862, to sixty-nine students. After the war it rose again to a maximum slightly above the former, augmented by a very different class, — older men, dislodged from their expected vocations by the general upheaval, and turning to law as a possible means of improving their condition.

Before leaving this side of the subject, something should be said of Dane Hall itself, the legal crucible where so much bright gold has been refined and “uttered.” The stately colonnade of the front was replaced by the present ugly vestibule when the building was moved a few feet in 1871. The old or forward portion of the building was divided on both floors into small rooms, each lighted by one of the huge windows still in position. Three of the rooms on the ground floor were appropriated to the trio of professors, and used much more constantly than their types in Austin Hall. The fourth was the library office. One of the second story front rooms was occupied as an abode by the student to whom the duties of librarian were from time to time entrusted. Another room was set aside for the meetings of the law-club courts, another for a general sitting-room and study, and the remaining one for a reading-room. In the transverse addition at the rear of the original building were the library on the first floor and the lecture-room on the second. I believe the old mahogany desk now in the East Lecture-Room of Austin Hall was that used in the original lecture-room.

In the library, half the space was taken up with bookshelves, the rest with tables and settees. In various corners and alcoves were some half-dozen high desks with stools, which were rented by the janitor at five dollars a term to the few men who knew enough and cared enough to use the library in a continuous and systematic way. Outside this handful of enthusiasts there was but little work done in the library. The textbooks were read by each man in his own rooms, and there was not much examination of the treatises or reports. Besides, there was difficulty in finding anything among the shelves. If you wanted a book you hunted for it yourself till you found it or got tired. But the greatest obstacle to work in the library was its use by the moot courts on several afternoons of each week, and even by real courts; for Judge Story, conceiving it would be an inspiration to members of the bar to be surrounded with the works of their great forerunners, and an equal inspiration to the students to get a glimpse of actual court work, inaugurated the practice of bodily transporting the then pliable forum in “ jury-waived ” cases from Boston to Cambridge, and planting it, totam curiam, in the Law School library, as already illustrated by Mr. Dana’s description of an argument there. The library must have been indeed a decidedly uncomfortable workroom. The greatest indecorum of our modern reading-room is to work in shirtsleeves, but the simplicity of those days thought nothing of the almost universal “chaw ” of tobacco, and what is worse, if I may be pardoned a legal phrase, provided no receivers for the ensuing liquidation.

Cleaning anything was apparently the last idea of the janitor. This functionary, for a generation or more, was an original genius named Sweetman. Born and bred for a parish priest in Ireland, he had come to this country and fallen upon evil days, being glad to get a job at street digging. President Quincy, passing one day, was amazed at a red head emerging from a trench and quoting, in excellent Latin, the lines from the Bucolics concerning the pleasures of the husbandman. He took the orator into his own service, but finding him perhaps too much of a handful, turned him over to the Law School. Here he became an autocrat. His professional duties, as popularly understood, he limited to opening the doors in the morning and locking them at night. He was deeply aggrieved if asked even to replace library books left on the tables, and seizing on the maxim so frequently used in Torts, modified it to suit his own purposes thus : “Sic utere libris ut me non lædas.” But he invented other and higher duties. He attended all the lectures, and subsequently gave the speaker the benefit of his criticism, on both delivery and doctrine. He exercised a general supervision over all matters connected with the school, and in his later years became a terror to every one in or near it. But he was at last displaced by the wave of reform that swept over the school about 1870. The keynote of this great series of changes may be given in the words of President Eliot: —

“Formerly it was not the custom for the President of Harvard College to have anything to do with the professional schools. I remember the first time I went into Dane Hall after I was elected President. It was in the autumn of 1869, a few weeks after the term began. I knocked at a door which many of us remember, the first door on the right after going through the outside door of the Hall, and, entering, received the usual salutation of the ever genial Governor Washburn, ' Oh, how are you? Take a chair, ’ — this without looking at me at all. When he saw who it was, he held up both his hands with his favorite gesture, and said, ‘ I declare, I never before saw a President of Harvard College in this building! ’ Then and there I took a lesson under one of the kindest and most sympathetic of teachers.”

Well might the old professor raise his hands to heaven, for stranger things yet were to happen. It is said that he almost fainted when the first blue-books made their unwelcome appearance, and he realized that regular written examinations, with all the labor they imply, were to be required for a degree. The old eighteen-months term of residence became two years. Changes of this sort paved the way for the next great change. The old staff of instructors, oppressed with new burdens and trammeled by unaccustomed supervision, felt that their places should be taken by younger men, more conversant with modern conditions. Within a few years of each other they all quietly and gracefully resigned, and a new and enlarged corps of teachers took up their work. Of these incumbents, quorum magna pars supersunt, of the epoch-making publication of Cases on Contracts, of the phœnix-like reincarnation of old Nathan Dane’s idea, “the systematic and scientific study of the Law, ” of the building of Austin Hall, and of the increase of the term to three years, I do not propose to speak. I have merely endeavored to rescue some old stories from oblivion, and to collect and present, however imperfectly, a few memories of the Old Times at the Law School.

Samuel F. Batchelder.