IV. The Study of Law as a Part of a General Education. By Professor F. M. BURDICK, Hamilton College. In this paper I am to attempt to answer two questions: First, should law be studied as a part of a general education; second, to what extent can it be taught in our academies and colleges? Perhaps the task will be facilitated, if we observe the ancient and fundamental division of public and private law, and pursue our inquiries with respect to each of these classes separately. The first class includes those legal rules in which the State is directly interested. International, constitutional and criminal law belong to this division. Private law embraces those rules which bear directly and mainly on the interests of individuals. There is general accord among educators, that the study of public law should form a part of a collegiate education. International and constitutional law are rarely absent from the college curriculum. Frequently it includes either Roman law, or the history of legal institutions; occasionally a college is found to provide for the study of private law. The academy, however, has done little towards giving its students a knowledge of their country's jurisprudence. And yet, if the study of law is to be made a part of a general education, it must be pursued in the academy as well as in the college. The yearly attendance upon the normal schools and academies of this State, according to the Regents' statistics, is about 40,000. Of this number only about 2,000 enter college. Nineteen-twentieths, then, of the educated people of New York must depend upon the academies and normal schools for any systematic instruction in law. A brief review of the benefits accruing from the study of public law will show us whether it should be pursued in our academies as well as colleges, and the limits to that pursuit. Few branches of learning can exercise a more broadening and liberalizing influence the student than the law of nations. Its foundations take hold in the hoary past. Its growth leads through exciting chapters of history. It escaped those influences that worked the development of other branches of law, and at a fortunate moment was wrought into a upon 54 UNIVERSITY OF THE STATE OF NEW YORK. A harmonious system by a single great mind. It possesses little of arbitrariness or technicality, while the ethical element is predominant. But it has other claims upon the attention of educated persons. knowledge of its principles is necessary to an intelligent appreciation of the current news. Some topic of international law is constantly before us in newspapers or periodicals. Now At one time it is the fisheries dispute, then the Cutting affair. it is the control of interoceanic canals; again it is some kaleidoscopic view of the everlasting Eastern question. Nor does its services end with ministering to our culture and entertainment. It possesses a practical value for the American citizen. So multifarious are the commercial relations of this country, so generally do our people engage in foreign travel; their business and even domestic interests are so closely intertwined with those of other lands, that the rules of international law are frequently involved in their transactions. In our Federal Republic, where the States are for some purposes sovereign, these rules assume additional importance, especially in the department of private international law. Questions as to domicile, marriage and divorce, contracts, and the distribution of estates, are continually arising, and a general knowledge of the legal rules involved is needed by the average citizen for their solution. Cases like the following, which came under my observation, not unfrequently happen. Mr. G., having property in Chicago, applied to Mrs. J., in Utica, for a loan to be secured by a mortgage on the Chicago property. Mrs. J. made the loan through her real estate agent, who was not a lawyer. The bond and mortgage was drawn in the ordinary form, the rate of interest being eight per cent, the legal rate in Illinois. A few years later, the borrower making default in payment was sued in Utica on the bond. He straightway consulted a lawyer, who surprised him with the assurance that the bond was invalid for usury. With all speed he informed Mrs. J. that if she pressed her suit he would set up usury as a defense, and thus he forced a compromise of a just claim. Mrs. J. and her real estate agent had learned something of the rules of private international law, but they had learned it in a costly school. An acquaintance with the general principles of constitutional law is essential to every educated American; and by constitutional law, I mean something more than the origin of our political institutions, something more than the history of parties, something more than the practical workings of our governmental machinery. These certainly ought to be familiar to the student. He cannot fully understand our federal system without tracing the idea of local self-government far back beyond the settlement of America to the polity of the Angles, His Jutes and Saxons who succeeded to the Roman rule of Britain. conceptions of President and Congress are cleared by studying the relations of King and Parliament during the early reign of George III. A thorough knowledge of the position taken by parties on important issues is necessary not only to a decent acquaintance with our country's history, but to an understanding of the purely political features of the Constitution. Some questions are finally determined, not by the courts, but by the political departments such as those involved in the acquisition of territory, in a scheme of public improvements, in dealing with the public lands, in federal aid to education, in the tariff, in admitting or restoring States to the Union, in international relations. But though the student may have mastered the history of our institutions and politics, he will have a very imperfect conception of our plan of government, and a very inadequate knowledge of his rights and duties as a citizen unless he studies thoroughly the law of the Constitution. He may be able to repeat the various clauses of the document, to enumerate the powers given to each department of government, to. describe the various processes by which laws are enacted and enforced, and yet be ignorant of the true meaning of those clauses, and fail to catch the animating spirit of our federal system. For, what is that animating spirit, but legalism? This is the view of Bluntschli, in his great work, "The Theory of the State." He describes our federalism as a legal State one where the "chief function of the State is considered to be the development of legal guarantees for national and individual freedom." Thus, constitutional law is not, in this country open to the doubt sometimes felt concerning it, in England, that it is not law at all, but "a cross between history and custom." De Tocqueville could not say of our Constitution as he did of the English, that it had no real existence. It has been reduced to statutory form, and its language is to be interpreted by legal tribunals. The guardianship of our Constitution thus given to the courts is the distinguishing feature of our system. France and Belgium have written Constitutions, but neither a French nor a Belgian court has ever declared a Parliamentary enactment unconstitutional. Legislative construction of the Constitution is final. Even in federal Switzerland, where our polity has been most copied, the Federal Assembly is the final arbiter as to the respective jurisdictions of the different branches of government, and the courts cannot as a rule question any enactments of the Assembly. But with us litigation. is substituted for legislation. The courts dominate Congress. In order to understand our Federal or State Constitution, we must study it in the light of judicial decisions, as we would study an ordinary 56 statute. UNIVERSITY OF THE STATE OF NEW YORK. We must not only know its language, not only attend to the history of its enactments, not only acquaint ourselves with the meaning claimed for it by political leaders, but above all we must know the authoritative construction put upon it by the courts. * * Let me illustrate this briefly. The student of the Constitution comes upon this clause: "Representatives and direct taxes shall be apportioned among the several States * according to their respective numbers." He is familiar with the term "direct taxes.” If asked whether it included a tax on wagons or income, he would promptly answer yes, and would be surprised to learn that the Supreme Court of the United States had decided to the contrary; had held that it applied only to poll and land taxes. Again he reads, 'Congress shall have power" "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. Can he measure the grant of authority conveyed by these words, without carefully studying the great decisions of Marshall, which established the boundaries of that grant? He discovers that "The privileges of the writ of habeas corpus shall not be suspended unless," etc. But what this writ of habeas corpus is, when it may be applied for, and how obtained are questions upon which the Constitution throws no light. He must go to the common law for answer. By the seventh amendment he finds himself expressly referred to the rules of the common law, as the only rules in accordance with which facts once tried by a jury may be re-examined by the United States courts. Still again he reads: "No person" * "shall be deprived of life, liberty or property without due process of law." This strikes him as one of the most vital provisions of the Constitution, yet its value unquestionably depends on the four words "due process of law," what do they mean? They are not defined in the Constitution itself. Unlike reading and writing, a knowledge of them does not come by nature. Once more he must seek the dry light of law-books. * * If the study of constitutional law is carried to the extent indicated above, it will include some of the leading principles of criminal law. By the Federal and State Constitutions, punishments that were common a century ago, are forbidden, and the right of the citizen to freedom from improper arrest and to a speedy, fair and public trial, when properly arrested, is carefully guarded. But if the student stops with constitutional rules, he will know nothing of the classification and definition of crimes, nor of the penalties attached to them and but little of the machinery for their punishment. Is it not desirable that he should possess such knowledge, first for his own protection and second to enable him to perform properly his duties as a citizen? There are two marked tendencies in our criminal jurisprudence to-day. One is the continuous creation of crimes by the legislature. Acts which were formerly legal, or at most wrongs to the individual, are now declared to be wrongs to the State. It behooves one to study our penal code in order to learn how easy it is to drop into crime, lest he drop into crime unawares. As he discerns its pitfalls opening on every side, he will see new meaning in the words of Eliphaz the Temanite, "Man is born to trouble as the sparks fly upward." The other tendency is to treat much of our penal law as purely Pickwickian. This is admirably illustrated in our excise legislation. Here the statutes are elaborate, and on paper look like genuine temperance laws, but they are almost worthless in practice. They are full of prohibitions that are openly violated with impunity, and bristle with penalties that are never imposed. If our educated classes would study our criminal jurisprudence and compare it with other systems, they would be greatly profited. They would learn the futility of branding an act as a crime unless the need and the conscience of the community demand such legislation. They would also learn that our criminal procedure is often responsible for the grievous miscarriage of justice. Its fundamental rule was stated by Fortescue, four centuries ago in these words: "It is better that twenty guilty persons should escape than that one innocent should suffer". an admirable rule for the protection of the individual against the overwhelming influence of kingly power, but one that works mischief, and that only, when applied to petty misdeeds under a popular government. And yet we persist in putting the new wine of moral offenses into the old bottles of an obsolete procedure. When we pass from the legal rules that primarily affect the State to those that primarily affect the individual, the claims of law to a place in the curriculum of a general education may seem weaker. Indeed, it is commonly held that instruction in private law should be reserved for students intending to enter the legal profession, and should be limited to law schools. But are not our educators mistaken in this view? One of our legal maxims is that every person is presumed to know the law. Yet how can he know it without he is taught? How few in this audience know the legal rights and duties of teacher and pupil? How much smaller the number who have any knowledge of the rules of law governing their every-day business relations? The maxim would more nearly accord with facts, did it run, "Every person is presumed to be ignorant of the law." The prevailing ignorance on this important topic, is not the result of popular indifference. From |