COLUMBIA LAW TIMES. OCTOBER, 1892. VOL. VI. No. I OUR THE BLACKSTONE CRAZE. BY FRANK S. RICE. UR intent in this article is to italicise a protest that comes to us from all radii, and voices the sentiment of men whose rare mental equipment, varied personal experience and supremacy at the bar abundantly qualifies them both to elicit attention and impart advice. This protest, as may be readily discerned from our caption, is against the protracted study of Blackstone in our law schools, and is respectfully submitted to the critical consideration of those high in authority, whose collective wisdom still retains upon our curriculum the "corpus " of this complaint. In our contention we are well aware that we antagonize cherished and deeply venerated notions, and will seem to flout the deliberate judgment of eminent educators connected with various institutions, who have, perhaps, never imagined the possibility of flat contradiction or demur to that sacramental thing, known as their "opinion." However, the principles we aver have the deliberate sanction of high legal authority; of men whose professional pre-eminence is readily recognized in all sections of the country; and it is believed that our views are cordially indorsed by a large majority of our alumni who have entered into the practical experience of active practice. Especially is it in order, at the inception of our remarks, to refer to the vigorous protest of two distinguished former occupants of the New York appellate bench, who based their aversion to Blackstone, first, on account of its utter uselessness as a repository of existing law; and second, because of its direct inculcation of vicious doctrines that have been wholly repudiated, and yet leave upon the impressionable mind of the student the contour of a false theory that is apt to infest and hamper much of his subsequent research. We yield to none in admiration of the mighty achievement of Sir William Blackstone in the digesting and codification of that "abysmal welter " known as the English Common Law. He brought to the consideration of his task a classic elegance of diction, phenomenal zeal, rare attributes of classification and all the ripened experience of a peerless legal mind. His fame is imperishable; and it is furthest from our purpose to attempt the belittlement either of the man or his achievements. It will be observed in this connection that our hostility to Blackstone relates merely to its preliminary study. If read under the more favorable auspices that always accompany the expansion of professional research, the rare fascination of the style and the felicitous evasion of the many embarrassments that form the "mingled lock of Teutonic, Feudal, Parliamentary and Ecclesiastical legislation" give to the "Commentaries" every quality of a classic written for all times and creeds. Especially taken in connection with the equally sumptuous work of Sir Henry Maine on Ancient Law," and with Mr. Hallam's celebrated “Constitutional History," we have an elaborate presentation of the inception and development of English jurisprudence that no legal equipment is complete without. Far from deploring this study, we would encourage and stimulate it, but we would inexorably stipulate that it be undertaken at a time when its want of adaptability and adjustment to existing condition can be more readily discerned, to the end that the student may evade the insidious approaches of a false theory that must be first learned with great study and promptly forgotten with great pains. Why this abject Persian adoration for a classic one hundred years behind its time? Why this prostration before a luminary that has long since set? Why drone over mildewed laws that have long since been relegated to the "impalpable inane," and have been discredited for a hundred years, even in the land that gave them birth? It is a rank and driveling insult to the common intelligence of our profession to even refer to the major portion of Blackstone's Commentaries as affording even a feeble exposition of the modern law. Whole chapters devoted to the governmental and ecclesiastical policy of Great Britain have not even a nebulous bearing upon any rule whatever in vogue in this country; and, in fact, they have long been superseded by elaborate works on the British constitution that have been out of print for half a century. What species of mental leprosy will still insist upon feeding legal minds on such Blackstonian draff as is found in his chapters on the " Benefit of Clergy," the "Feudal System," "King's Royal Family," and particularly the chapters on English Criminal Law? What bewildering results are the legitimate outcome (in view of our various practice acts and codes of civil procedure), of study upon "Pleading and Practice at Common Law"? Glance at the subjects of bailment, easements, fixtures, etc., and consider the monumental importance of these topics under our present scheme of law. Refer to Blackstone's chapter on "Landlord and Tenant," and introduce us to one line that can safely be regarded as elucidative or even suggestive of that relation under modern rules. Consider in its entirety the treatment he accords to “real property," and you will find that it is a mere tabulation of oblivionized definitions that serve no practical purpose here or hereafter, and only "lead to bewilder and dazzle to betray." It is quite time that this extravagant estimate of Blackstone was called to a new audit. Judge Cooley, whose legal acumen is above compare, whose logical percepceptions are of the keenest, whose eloquence always charms, if it does not always convince; Judge Cooley, whose reputation as a text writer is second only to his national reputation as a scholar and a jurist, devotes some of the most brilliant paragraphs he ever penned to an elaborate special plea, based upon the propo |