The readers of _Blackwood_ who, month after month, followed with
increasing interest the adventures of Titmouse, and the adversity and
restoration of the Aubrey family, will excuse us if we apparently diverge
from our usual literary course to track the author of "Ten Thousand
a-Year" in a work which he has given to the legal profession, or rather to
those who meditate entering upon that profession, or who have just set
their foot upon the threshold.
Mr Warren's "Introduction to Law Studies" has already received the
approbation of the public, testified by the sale of an unusually large
edition. This has prompted the author to fresh endeavours to render it
worthy of the peculiar place it fills, and of his own name; and he now,
"after ten years of additional experience, (eight of them at the bar,)"
publishes a second edition, "remodelled, rewritten, and greatly
enlarged"--indeed so considerably altered and amplified as to be, in
reality, a new work under the old title.
"In the present work," says the preface, "is incorporated one which the
author has for some years meditated offering to the public, viz. an
elementary and popular outline of the leading doctrines and practice of
each of the three great departments of the law, civil, criminal, and
ecclesiastical." The work, therefore, now consists of three distinct
parts. 1. A general survey of the legal profession--a description of the
nature of its several departments, of the various studies, labours, modes
of life, of the conveyancer, the special pleader, the common-law and
equity barrister, in order to guide the choice of a young man, who
probably has hitherto a very confused notion of what, and how many
different things, may be implied in the vague expression of "going to the
bar." 2. A concise and elementary view of the several branches of the law
which fall to the especial study of these several departments of the
profession, as equity, the ecclesiastical and common law; and, 3. the
recommendation of a course of study, pointing out the best books on each
subject, and adding many useful hints to the young student on the
discipline of his mind, and the acquirement of general knowledge.
To us it seems that such a work must be of very great utility, and that
Mr Warren has given the most complete "beginning book" that was ever put
into the hands of a young person seeking, or entering, a profession. It is
not a publication which, as far as we know, replaces or competes with any
other, but fills up a vacancy, and supplies a want which must have often
been painfully felt. How can a young man, ambitious of entering the bar,
know the nature of that profession into which he is so anxious to enlist
himself? He goes into a court of justice, and sees men in their grotesque
but imposing costume haranguing the judge and the jury, and without
further thought he resolves that he too will be an orator and haranguer.
Or what is more frequently the case, he reads the published speeches of an
Erskine or a Curran, accompanied with memoirs of the men, and accounts of
their forensic triumphs, and he burns to achieve the like actions, and to
wield the same "resistless eloquence." But who is to tell him the nature
of that territory, and by what manner of journey it is to be traversed,
which lies between him and the gowned orator he is desirous of emulating?
He sees the great actor on the stage, or hears of the intoxicating
applause which he wins; but who is to conduct him behind the scenes, show
him the apprenticeship he has to pass through, the hazards of failure, the
impatience and tedium of unemployed energies--"the sad seclusion of
unfrequented chambers, or the sadder seclusion of crowded courts?"[14] How
invaluable, at such a time, would be some kind good-natured friend, who
had passed through the rough experience, who had sufficient remembrance of
his own early mistakes and difficulties to comprehend all his
bewilderment, and sufficient tolerance to endure being questioned on
matters which to him have grown too trite and familiar to seem to need
explanation. In Mr Warren's book he will meet with exactly the information
he wants; he will find a chart of the profession unrolled before him; he
may quietly test his own abilities, or his own courage, to adopt any of
the several departments as they are submitted to his inspection. He will
obtain all that he could gather from that kind good-natured friend at the
bar, whom he has been longing for, and would so willingly seize by the
button--nay, far more than he could gather from any one man who had not
made the subject one of especial attention, and taken pains himself to
collect information from various quarters. Besides, how infinitely
agreeable is it, whilst yet a resolution is unripe, whilst yet it is the
secret of our bosom, to be able to get our doubts solved, and our
questions answered, from the silent pages of a book; to be spared the
penance of exposing half-formed designs to the jocular scrutiny of our
friends--to be permitted to consult without necessarily making a
confidant--to be able to dismiss our thought, if it is destined to be
dismissed, without betraying how dear a guest it has been.
The more youthful and less instructed of its readers will find every
portion of this work useful to them; especially they will have reason to
thank; the author for that facile introduction he has offered them to the
study of the law itself. Never has been such a gently inclined plane set
up, for weak and unsteady feet, against the hill of legal knowledge. The
talent which Mr Warren has for familiar and elementary exposition is
something quite peculiar. Nor will they fail to profit by his many
practical hints for the discipline of the mind, and his advice as to their
general reading. The student more advanced in years and in thought, and
who entertains the project of entering the profession at a time when his
mind has approached towards maturity, will perceive, and will have the
candour to reflect, that much of the work was not written for _him_. But,
on the other hand, he is the very person who will especially value it for
that description of practical, familiar, but most necessary information,
which it is rare to get from books at all--which to him it is peculiarly
disagreeable to be compelled to extract piece-meal from chance
conversation with men but half furnished with it, and perhaps impatient
of the interrogatories put to them. What are the distinctions between the
several species of the lawyer? What sort of an animal is, in reality, the
conveyancer, or the special pleader, or the equity draftsman--what are its
habits, where its haunts--how is it bred, how nourished--what process is
he himself to go through, before he can be recognised as belonging to the
class--how best may he set to work, and with least loss of time?--these
are matters which he is very curious to know, and to him nothing is more
welcome than to find them all explained in the printed page--to find them
where he is accustomed to look for every thing, amongst his old friends
the books.
Surprise has often been expressed at the fact, that there is no publicly
appointed method of legal tuition, no lectures delivered on which it is
compulsory to attend, not even any examination to be finally undergone
before admittance to the bar. A little acquaintance, however, with the
nature of legal studies, will soon dissipate this astonishment. There is
but one way in which the law _can_ be mastered; severe, steady, solitary
reading, accompanied by the privilege of watching the real practice of the
jurist in the chambers of the conveyancer or the special pleader. To one
bent on the professional study of the law; lectures would be mere waste of
time. To the idler they may bear the appearance, and bring some of the
profit, of study; to the conscientious and resolved student, they would be
an idleness and a dissipation. Where a subject admits of being
oratorically treated, good lectures are extremely valuable; for oratory
has its office in tuition, stimulates to reflection, and stirs generous
sentiments, and we wish the oratory of the professor's chair were more
cultivated amongst us than it is. Nor need we say that where the subject
admits or requires the illustration of scientific experiments, lectures
are almost indispensable. But in the tangled study of the law, where one
must go backwards and forwards, as in a rope-walk, and twist one's own
cable out of many threads--of what use can the lecturer possibly be? To
teach us law in a fluent discourse, what is it but to have us feed--as the
humming-birds are said to do--upon the wing? But even humming-birds feed
in no such fashion; they sit down to their supper of rose-water. Much more
must a lawyer have his table--his desk--fast before him; and spreading out
his various fare, which needs a deal of mastication, feed alternately, and
slowly and solemnly, on the several dishes which with ostrich stomach he
has to digest.
As to the absence of all examination previous to an admission to the bar,
the fact, that not only in our own inns of court, but in all similar
institutions, such examinations have been allowed to dwindle into some
empty and puerile form, sufficiently demonstrates their inutility. If an
examination were appointed, it would be no test of the efficiency of the
advocate; no sufficient guarantee to the ingenuous client who should
wander into Westminster Hall in search of a lawyer. Not to add that the
learned gentleman may have had ample time to forget all his legal
knowledge in the interval between his call to the bar and the opening of
his first brief. A license, indeed, is given to practise as an advocate,
without any other qualification than that of respectability of character,
and the payment of certain fees; but the case of no client is confided to
the young orator, unless those who have the greatest interest in his
competency are satisfied that he can be safely relied on. Men suffer their
_health_ to be trifled with by ignorant quacks and ridiculous
pretenders--not their money. We need no Sir James Graham's bill in the
profession of the law. Besides, it is not the good opinion of an
uninformed public which the barrister has to seek or to depend upon. A
lawyer, he is judged by lawyers. It is in the estimation of attorneys and
solicitors that he must rise--not that of respectable ladies and nervous
baronets. They stand between him and that unlearned public to which the
physician, on the contrary, at once appeals.
The very circumstance, however, that there is no such public course of
instruction marked out, and no prospective examination to be prepared
for--that all is to be gained from that silent array of books which fill
the long shelves of a legal library or from those chambers of the
practitioner which, to those who look at them from without, seem as dark
with mystery as they are with dust and smoke--this, we repeat, renders
such a guide-book as that which Mr Warren has presented to the public,
almost indispensable. In forming a critical estimation of his labours on
this publication, it would be extremely unfair to forget, for a moment,
the peculiar nature of the work. He is writing for the young. It is an
elementary treatise. It is a book peculiarly practical; the very opposite
of whatever is theoretical or speculative. If the style is somewhat more
diffuse than we should on all occasions approve, we are far from regarding
this as a defect _here_. The work, amongst other advantages, presents
really a storehouse of that useful phraseology in which a public speaker
should abound, that phraseology which lies between the familiarity of
business and the pomp of oratory. And if, as we may perhaps be tempted
again to remark, there is something too much of laudation of that
profession and of that system of jurisprudence to which he is introducing
the young aspirant, this too is a bias to which, in the present work, it
would be ungracious to raise an objection. An elementary teacher should
not chill and discourage his pupils by criticisms of a cold and censorious
character; he should rather exercise his penetration in drawing into light
concealed excellences. In this Mr Warren follows the example of the first
of all commentators, the most successful of all teachers--Blackstone; who
continues to be the most popular of all expounders of the law, even though
the system that he expounds has almost deserted him. It seems that the law
can be made obsolete, but not the commentary. With a pupil it is a thing
understood and agreed upon that he is to learn the system as it now
exists; to engage him to do this it were bad policy to decry that system,
and expose its faults with a merciless analysis. When the student has
mastered it as a lesson, he may then overlook and criticise it with what
severity he thinks fit. We will quote a passage which will illustrate at
once the lively manner of our writer, and also this happy Blackstonian
tendency--the habit of animadverting very gravely on those errors of the
law which have been reformed, and remaining still "a little blind" to
those which are yet untouched.
"Down to the year 1832, the system of common law pleading and
practice supplied the student, during the greater period of his
pupilage, with little else than the most degrading and unprofitable
drudgery. It presented to his despairing eyes a mass of vile
verbiage--a tortuous complexity of detail, which defied the efforts
of any but the most creeping ingenuity and industry. There was really
every thing to discourage and disgust a liberal and enlightened mind,
however well inured to labour by the invigorating discipline of logic
and mathematics. The deep and clear waters--so to speak--of legal
principle, there always were, and will be, for _they_ are immutable
and eternal; but you had to buffet your way to them through "many a
mile of foaming filth," that harassed, exhausted and choked the
unhappy swimmer long before he could get sight of the offing. Few
beside those who had had the equivocal advantage of being early
familiarised with such gibberish as "special general
imparlance"--"special testatum capias"--"special original"--"testatum
pone"--"protestando"--"colour"--"_de bene esse_," &c. &c. &c. could
obtain a glimmering of daily practice, without a serious waste of
time and depreciation of the mental faculties. Let the thousands who,
under the old system, almost at once adopted and abandoned legal
studies, attest the truth of this remark. There was, in short, every
thing to discourage a gentleman from entering, to obstruct him in
prosecuting, the legal profession. Recently, however, a great change
has been effected. There has been a real reform--a practical,
searching, comprehensive reform of the common law; a shaking down of
innumerable dead leaves and rotten branches; a cutting away of all
the shoots of prurient vegetation, which served but to disfigure the
tree, and to conceal and injure its fruit. Now you may see, in the
common law, a tree noble in its height and figure, sinewy in its
branches, green in its foliage, and goodly in its fruit. May it be
permitted, however, to express an humble hope, that the gardener will
know _when to lay aside_ his knife!"--(P. 20.)
And yet Warren has a knife, too, of his own which he would willingly
employ upon some part of this noble tree--either its old or its new
branches. It is impossible for even the most indulgent commentator not to
perceive that there are in our system of pleading many technicalities,
which, so far from being necessary to the administration of justice, have
no other operation than to retard, to complicate, to defeat the
administration of justice. At p. 738--a very prudent and respectful
distance from the quotation we have just made--we find the following
admission:--
"Such is a faint sketch of the existing system of special pleading,
upon the reform and remodelling of which has been bestowed, during
the last fifteen years, the anxious and profound consideration of
some of the ablest and most experienced legal intellects which were
ever addressed to such an undertaking, or concerned in the practice
or administration of the law. Their alterations were bold and
extensive, and perhaps may be said to have been, to the same extent,
successful. The principal objects proposed to be effected by the late
changes were enumerated in an early part of this work, where also was
given a general account of all the late changes effected in the
department of Common Law pleading and practice. To this we now refer
the reader; and also to the Appendix (No. IV.), where will be found,
_in extenso_, the Rules of Court by which these great alterations
were effected. While the principal objects of the framers of them
have been accomplished, by effecting a great saving of expense in the
length of the pleadings, and their incidents; by securing an
economical and satisfactory trial at Nisi Prius, through the precise
and specific nature of the issues required to be presented to the
jury, and the effectual expedients resorted to, for the purpose of
saving an unnecessary expenditure in obtaining evidence: it cannot be
denied that the excessive stringency of the rules which restrict a
plaintiff to a single count in respect of a single cause of action,
and a defendant to a single plea in support of a single ground of
defence, too frequently operates most injuriously, so as to secure
the defeat of justice. _It is continually a matter of serious
difficulty, to refer a particular combination of facts to their
appropriate legal category; and if the wrong one should be selected,
substantial justice is sacrificed before arbitrary legal
technicality._ It would be easy to illustrate the truth of these
remarks by reference to cases of daily occurrence. The rule in
question must either be relaxed, or its injurious effects neutralized
by greatly enlarged powers of amendment conferred upon the judge at
Nisi Prius. With all these defects, however, it cannot be denied that
the recent changes in the law of pleading, evidence, and practice,
with reference to the interests of suitors, have justified the most
sanguine anticipations of those who set in motion the machinery which
effected those changes; and with reference to students and
practitioners, have tended to exact a far greater amount of
diligence, learning, and acuteness, than for a long series of years
has been deemed requisite."
Mr Warren's illustrations, whether imaginary, or drawn from experience and
observation, are always, as might be expected, graphic and amusing. It is
thus that he exemplifies a very useful precept, which he gives to the
young student for the bar:--
"He must _very early familiarise himself with the correct meaning of
at least the leading technical terms of Logic_--which are of frequent
use in the courts--not for petty pedantry or display, but from their
real advantage--from, indeed, the necessity of the case. Instances of
the vexatious consequences of ignorance in these matters will not
unfrequently fall under the notice of a watchful observer. Some two
or three years ago, a counsel, manifestly not having enjoyed a _very_
superior education, was engaged in arguing a case, _in banco_, at
Westminster--before four very able judges, one of them being a man
remarkable for his logical acuteness and dexterity. 'No, no--_that_
won't do,' said he, suddenly interposing--'put the converse of the
proposition, Mr ----: try it _that_ way.' The judge paused: the
counsel too paused, while a slight expression of uneasiness flitted
over his features. He expected the _judge_ to 'put the converse' for
him; but the judge did not. '_Put the converse_ of the proposition,
Mr ----, and see if _that_ will hold'--repeated the judge with some
surprise, and a little peremptoriness in his tone. But it was
unpleasantly obvious that Mr ---- _could_ not 'put the converse' of
the proposition--nor understand what as meant. Some better informed
brother barrister whispered to him the converse of the
proposition--but it was useless: Mr ---- faltered--repeated a word or
two, as if mechanically--'_Well!_' said the judge, kindly suspecting
the true state of the case, 'go on with your argument, Mr ----!' It
may appear strange that so glaring a case should occur at the
bar--but, nevertheless, such a case _did_ occur, and such cases have
occurred, and are likely to occur again, as long as persons of
inferior education come, intrepid in ignorance, to the bar."
We think, however, that Mr Warren is a little too hard upon the
unfortunate orator, who was not aware of the meaning of the "converse of
the proposition," and that the judge might as well have "put it" himself.
A man may be a very good reasoner who has not learned "to name his tools,"
which is all that is taught by the logic of Aristotle.
How evidently is the following invested with all the vivid colouring of
actual observation:--
"It can hardly be necessary, after all that has been said upon the
subject of special pleading, both in this chapter and in preceding
parts of the work, to warn the youth who rashly rushes to the bar
without a competent knowledge of pleading, of the folly of which he
is guilty, and the danger to which he is exposing himself. To a young
counsel ignorant of pleading, a brief will be little else than a sort
of Chinese puzzle. He must either give up in despair all attempts at
mastering its contents, or hurry in ridiculous agitation from friend
to friend, making vain efforts to 'cram' himself for some occasion of
solitary display, afforded him by the zealous indiscretion of a
friendly solicitor. Feverish with anxiety, wretched under the
apprehension of public failure, and the consciousness of
incompetence, after trembling in court lest he should be called upon
to show himself, he returns to chambers, to curse his folly--to make,
when too late, exertions to retrieve his false position, or abandon
it for ever, with all the cloud-picturings of a vain and puerile
ambition."
There is a general reluctance to believe in the union of literary talents
and business-like qualities of mind. They are thought incompatible. A
lover of literature is held to have little chance of success. A prejudice
so general must have some foundation; but the incompatibility, in whatever
degree it exists, lies, we are persuaded, not in the several mental
qualities--not in the intellectual apparatus fitted for the two careers of
literature and a profession--but in the different dispositions, in the
diversity of tastes, which the two pursuits engender. The literary man
fails in no faculty that profession calls for, but he may contract a
strong repugnance for the species of activity it demands.
In literature thought is indulged and solicited for its own sake; it
excites or it amuses; it may be invested with the deepest and most
stirring interests of religion and philosophy, or it may be the very
rainbow of the mind, having no life but only in and for its beauty. In
professional vocations the intellectual effort is subordinated to a
definite and fixed purpose; it is the purpose, not the thought, which must
continually animate our exertions; and the purpose binds down the current
of thought rigidly to its own service. Literature is the luxury of the
spirit, the free aristocratic life of intellectual pleasure; profession is
the useful but fettered existence of the sons of toil. In the one, the
spirit revels as a mountain stream that leaps in the face of heaven from
crag to crag; in the other, it is the same stream, lower down, confined in
narrow channel, and half-buried by the ponderous wheel-work of that
ever-clacking mill which it has to turn.
What wonder, then, that the literary man should have certain disgusts to
overcome when he is called on to forsake his own free and variable life,
for a mode of existence where thought is no longer her own mistress, but,
with constant repetition, must take service in the mechanism of society?
And he does often recalcitrate. But when, owing to some overruling motive
of ambition or necessity, this distaste is overcome, it is an immense
advantage which the possessor of literary talents has over the ordinary
practitioner of any profession. In that of the law it has been especially
remarked, that those who have been most eminently successful have
confessed to the repugnance they had, in the first instance, to conquer;
and such examples of eminent success have, for the most part, consisted of
men who had betrayed a decided talent and aptitude for literature.
The writer whom we have before us is a striking instance of literary
tastes being irresistibly borne down by the craving after active life,
and, perhaps, a strong impulse of ambition. The present work is sufficient
to testify that, however vivid his imagination, his patience is still
greater. We know him to be one of those who abhor rest, who court fatigue,
to whom the utmost drudgery becomes welcome when invested with the
interest of an immediate practical purpose. To one of such a stamp,
literature could only prove a sort of apprenticeship to cultivate and
develope his mind, not to determine his career. And so it has been. It was
in vain that nature placed the pencil in his hand; she could not win him
to the repose of the artist; his spirit was already pledged to a life of
action, of toil, of hope, of enterprise. All along he has chosen the path
of forensic ambition, nor, when most exerting his fancy, has he ever
swerved from the goal. May success await him in his laborious course! May
he be landed high and dry upon the envied eminences of social life!
But--by Jupiter!--if nature had given _us_ the pencil of the artist, we
would not have let go our hold, though the seals of office were ten times
as large and ten times as brilliant as they are, and were dangled before
us within arm's-reach. You might have lifted us softly and gently, and
placed us as with a mother's arms, even upon the broad woolsack, we would
not have dropped that pencil. No; we would have said to the boisterous
prosperities of life--Here is that which will make station indifferent; if
to food and raiment men must needs add the charms of variety, here is that
which will gild even obscurity with an assured and tranquil pride!
As we have intimated, we do not feel disposed to blame our author that he
speaks often of his "glorious," his "noble" profession. The golden hue of
sunrise is rightly cast upon the pinnacles and towers of that city the
traveller is toiling to reach. What narrow and squalid streets, what blind
alleys, what there is of filth and ruin in the great capital of
intelligence, he may find out afterwards for himself. There was a time
when we, too, were younger than we are, and saw the proud city at the same
advantageous distance, when, dazzled by the view of its more conspicuous
ornaments, we might have been tempted to make the same exclamations, and
to use the same flattering phraseology. At that time, if any one had
thrown a shadow of moral blame on the very principle and universal
practice of the profession of advocacy, we should have indignantly
repelled the accusation, we should have rushed to its defence, perhaps we
even did attempt to throw our little shield before its huge and very
vulnerable body. But now--when some years have rolled over our heads, and
we have learned to think more calmly, if not more wisely--when we have
caught a glimpse of the men who fill high places, and stood near enough to
discover that they were of earth's common mould--when the actual din of
forensic oratory, deafening and monotonous, has rung in our ears, and we
have sat and watched the solemn juggle, and the stale hypocrisy with which
that legal strife called a trial is conducted--now, if any teacher of
ethics should denounce the demoralizing principle of advocacy--the
principle we mean of contending for any client, or any cause, that craves
fee in hand--we should no longer be eager to thrust ourselves between him
and the object of his indignation; we should let his wrath take its
course; we should listen with patience, with neutrality, perhaps with
secret satisfaction at his attack. What, after all, is to be said in
answer to the reproach which every simple-minded man must make--not
against this or that member of the profession, because an individual is
always considered blameless who only adopts the customs of his
country--but against the whole profession, the principle and theory of its
action, this arguing for A or B, for Yes or No, as they first come,
without the least regard for justice or for truth?
It is well known what Paley has said in its defence. "There are
falsehoods," he writes in his chapter on Lies, "which are not lies, that
is, which are not criminal; as, 1. when no one is deceived--which is the
case in parables, fables, novels, jests, tales to create mirth, ludicrous
embellishments of a story, where the declared design of the speaker is not
to inform but to divert; compliments in the subscription of a letter, a
servant's denying his master, a prisoner pleading not guilty, _and an
advocate asserting the justice, or his belief of the justice, of his
client's cause_. In such instances no confidence is destroyed, because
none was reposed; no promise to speak the truth is violated, because none
was given or understood to be given."
Ay, but the advocate _does_ strive to be believed--does labour to deceive.
His very object is to gain credit for his assertion, whether contrary or
not to his sense of truth. He stands there, it is true, in the character
of advocate, subject to whatever suspicion you may attach to that
character; but all his ability is employed to overcome that suspicion, and
compel you to credit him. "Confidence is not reposed;" not readily it may
be; he labours, therefore, the more assiduously to win it. How can he
avail himself of the plea here offered for him? How can he place himself
in the sane category with the portly merchant who signs himself "your
humble servant," and would indeed be strangely surprised if you took him
at his word? Or with the obedient valet who denies his master with the
customary, "not at home?" No man uses language with a more evident desire
to obtain our conviction than the advocate.
There is another so-called _theory_ of advocacy, which we will state in
the words of Bishop Warburton. In his _Divine Legation_, vol. i. p. 397,
he says, speaking of Cicero--"As an orator, he was an advocate for his
client, or, more properly, _personated him_. Here, then, without question,
he was to feign and dissimulate his own opinions, and speak those of his
client. And though some of those who call themselves casuists, have held
it unlawful for an advocate to defend what he thinks an ill cause, yet I
apprehend it to be the natural right of every member of society, whether
accusing or accused, to speak freely and fully for himself. And if, either
by a legal or natural incapacity, this cannot be done _in person_, to have
a _proxy_ provided or allowed by the state to do for him what he cannot or
may not do for himself. I apprehend that all states have done it, and that
every advocate is such a proxy."
This explanation goes far. Of a certainty, every man has a right to
approach a court of justice with such plea, or such demand, as the law
gives him. For his ultimate aims, for his moral purposes in so doing, he
alone is responsible. We do not desire the barrister so to prejudge the
cause of the litigant as to decide whether or not he ought, as a moral
man, to carry it into a court of justice. Let his plea, or his demand, be
laid before the tribunal of his country, and as he cannot, in the
complicated state of our jurisprudence, do this for himself, it is right
and equitable that there should be professional men whose function it is
to do this for him. But it follows not that the professional man is to
pledge his own personal convictions in every case he undertakes. _Let him
speak in the name of his client_, let him limit himself to the office of
interpreter, where his own convictions do not allow him to be the zealous
advocate. The state ought to give to every man free access to a court of
justice, and to all the armoury of the law; how he uses the weapons he
finds there, he must account to God and his own conscience, and the moral
judgment of society; but the state is not to give to every rogue the
benefit of the apparent convictions in his favour, of a learned and
honorable gentleman. If the barrister speaks, and is understood to speak,
as from his client, and not from his own conviction, the indiscriminate
advocacy of causes which the administration of justice requires, is
reconcilable with the manifest claims of morality. But not otherwise. To
lend out the zeal of truth to varnish every cause, is what no system of
jurisprudence demands, and what no system of ethics can tolerate. Yet this
is what is done.
If a conveyancer is instructed to draw a will which appears to him
unjust, he must feel some pain in so doing; but it is not a pain of
conscience, for it is not his office to compel people to make equitable
wills. It is an office which, at the distance he stands from the parties,
and with his limited knowledge of their character and mutual
relationships, he could not possibly undertake; he would be a mere
disturber of the peace of society if he attempted to regulate the morality
of all the conveyances and testaments that he drew. It would indeed be a
doctrine destructive of all order, and of the very machinery of society,
that would, as a general rule, impose upon men of profession, or of trade,
the responsibilities which lie, in the first instance, upon the
consciences of their clients. A man could not sell a piece of whipcord
from his shop, without having an assurance from the customer that he was
not buying it to strangle his wife withal. The conveyancer, therefore,
quietly pursues his instructions, and draws the will. In the like manner,
if a barrister is instructed to plead the statute of limitations to a
debt, it is no concern of his if the client is not acting in a
conscientious manner in taking advantage of the statute. The law gives him
this plea, and it is not for the jurist to debar him the use of it. He
presents it, therefore, to the court. But if, not content with pleading
the statute of limitations for a client who employs the law to escape from
a moral obligation, he labours to convince the jury that, in availing
himself of this plea, his client is acting in a very honourable, or at
least in no blamable manner; if, by an artful colouring of the facts, or
by insinuations against other parties, he contrives to lead the culprit in
triumph through the court, then we say that a baseness is committed by the
advocate, for which there is no excuse, in the constitution of courts of
justice, nor in the subtleties of casuistry.
Those who have expatiated on the duty of the barrister to _do all_ for his
client, be that client whom he may, have generally taken care to place
before us the cases of political prosecution, where the advocate appears
to act a brave and generous part in opposing the government and the legal
officers of the crown. By dexterously keeping the small cases in view
while they were enlarging on the broad principle of indiscriminate
advocacy, they have often contrived to give to this principle itself an
air of generosity; as if the barrister were performing a noble
self-sacrifice, were devoting himself in a quite heroic manner, by giving
himself, head and heart, voice and intelligence, to the first distressed
applicant for his aid. It is only by referring to the political nature of
the occasion on which it was delivered, that we can account for the
following splendid exaggeration of Lord Brougham's upon this subject:--
"An advocate, by the sacred duty which he owes his client, knows, in the
discharge of that office, but one person in the world, that client and
none other. To save that client by all expedient means--to protect that
client at all hazards and costs to all others, and among others to
himself--is the highest and most unquestioned of his duties; and he must
not regard the alarm, the suffering, the torment, the destruction, which
he may bring upon any other. Nay, separating even the duties of a patriot
from those of an advocate, and casting them, if need be, to the wind, he
must go on, reckless of the consequences, if his fate it should unhappily
be to involve his country in confusion for his client's protection."
This piece of eloquent absurdity was delivered on the trial of Queen
Caroline, and the speaker was playing the advocate at the time he
delivered it. But Lord Brougham would not surely speak or write in the
same strain upon other and more ordinary occasions--if, for instance, the
client, for whom the country was to be involved in confusion, was a
railway company![15]
Every man has something to be said for him in the way of defence or
palliation; we have no objection to every man having his advocate in
Westminster Hall; but we are persuaded that public opinion is far too
indulgent to this "glorious and noble" profession, when it permits its
members, speaking as from their own conviction, to sport with truth to any
extent that may be serviceable to their clients. A more temperate zeal,
which should not overstep what the interest of justice demands, would
indeed be less munificently rewarded; but, in every other respect, it
would be a clear gain both to the cause of public morality and the
administration of the laws.
But that which, perhaps, more frequently calls up a feeling of pain and
humiliation in the barrister, is that for which he is not at all
responsible; namely, the nature of those _legal_ weapons the employment of
which his client has a right to demand of him. The rules of _pleading_ and
of _evidence_ have been lately much simplified and improved, and they
will, year after year, be still further improved; but they still furnish
the willing or the unwilling advocate with abundant obstructions to the
fair investigation of truth. Speaking of pleading, Mr Warren has very
truly said, in a passage we have already quoted--"It is continually a
matter of serious difficulty to refer a particular combination of facts to
their appropriate legal category; and, if the wrong one should be
selected, substantial justice is sacrificed before arbitrary legal
technicality." A glance at these "legal categories" will fully bear out
the statement which our author has here so temperately made. Let us open
the justly lauded book of Mr Stephen, "On the Principles of Pleading"--a
work which every man, lawyer or not, who receives a gratification from
clear and logical statements, may take pleasure in perusing. We extract
the following account of _personal actions_:--
"Of personal actions, the most common are the following--Debt, covenant,
detinue, trespass, trespass on the case, replevin.
"The action of _debt_ lies where a party claims the recovery of a debt,
_i. e._ a liquidated or certain sum of money alleged to be due to him.
"The action of _covenant_ lies where a party claims damages for a breach
of covenant, _i. e. of a promise under seal_.
"The action of _detinue_ lies where the party claims the specific recovery
of goods and chattels, or deeds and writings detained from him.
"The action of _trespass_ lies where a party claims damages for a trespass
against him. A trespass is an injury _committed with violence_."
Having described these, the author comes to one which requires to have its
history told before it can be rendered intelligible. This is still not
unfrequently the case in our law; instead of a definition founded on the
nature of things, and growing out of the science itself of jurisprudence,
we are presented with a narrative to tell us how the matter came about.
"The action of _trespass on the case_ lies where a party sues for damages
for any wrong or cause of complaint to which covenant or trespass will not
apply. This action originated in the power given by the statute of
Westminster 2, to the clerks of the chancery to frame new writs _in
consimili casu_ with writs already known.... Such being the nature of the
action, it comprises, of course, many different species. There are two,
however, of more frequent use than any other species of trespass on the
case, or, perhaps than any other form of action whatever. These are
Assumpsit and Trover.
"The action of _assumpsit_ lies where a party claims damages for breach of
simple contract, _i. e. a promise not under seal_."
The action of _trover_ differs from _detinue_ inasmuch as the party claims
_damages_, not the recovery of the identical goods and chattels. With the
action of _replevin_ we will not trouble our readers, to whom we ought,
perhaps, to apologise for entering thus far into legal technicalities.
But now, reflect a moment on this classification. A promise under seal
must assuredly require a different proof from a promise not under seal;
but what end is answered by calling one an action of _covenant_ and the
other an action of _assumpsit_? Or what good result can arise from
limiting the definition of _debt_ to the claim of a sum certain? Who sees
not what a snare may be here laid for the feet of unwary suitors? The
names of _trover_, _detinue_, _trespass_, give no information to the
defendant; the substantial cause of action is stated in the declaration,
and these names are mere useless additions. Yet the right name must be
chosen, or it is fatal to the suit. If _trespass_ be adopted instead of
_trespass on the case_, the error is fatal; and yet mark how lucid, how
intelligible, how satisfactory is the classification designated by these
terms of art.
Trespass is the proper form of action when the injury has been committed
_with violence_ This looks sufficiently distinct. But then the violence
may be either _actual_ or _implied_; and the law will imply violence
wherever the injury is _direct_, and the property injured of a _tangible_
nature. In the most stealthy, peaceable entrance upon another man's land,
the law implies violence. What, therefore, may or may not be said, in the
usual phrase, to be done _vi et armis_, remains to be known, by no means
from the nature of the facts themselves, but from arbitrary decisions of
courts. To make out a class of actions as those committed with violence,
and then to imply violence where in reality there is none, is first to
make and then unmake the distinction. And yet, as some distinction is, for
the embarrassment of suitors, to be retained, this implication of violence
is restricted to cases where the injury is _direct_ and not
_consequential_; and what shall be denominated a direct and what a
consequential injury, is again a matter of no small difficulty. Moreover,
in order to sustain trespass, the property injured must be of a
_corporeal_ nature. It would be a sad solecism in the eye of the law to
allow a man to bring trespass on account of his _tithes_--this being,
according to definition, an _incorporeal_ property, and from its nature,
therefore, not subject to violence.
This barbarous nomenclature of actions might be swept away at once with
considerable advantage. If the plaintiff "complaining" of the defendant,
proceeded at once to a brief statement of his cause of action, this would
answer all the purposes of pleading. It was said by the commissioners in
the third report on the common law, that an abolition of these
distinctions would entail "much uncertainty on the right of action." With
utmost deference to the commissioners, this is a very strange assertion.
These categories are known only to the lawyers; and surely a student of
the law cannot be at a loss to distinguish the substantial ground of
action from a mere formulary of pleading. A layman may often imagine he
has a right of action where he has none. Did the commissioners mean
gravely to assert that these categories, of which he knows nothing--or
whether he knows them or not--could enlighten him as to the redress he is
entitled to in a court of justice?
It is, however, in the inexhaustible armoury of quibble and objection
which the law of _evidence_ supplies him with that the generous advocate
must feel the greatest amount of embarrassment and repugnance. It is his
office to stand at the door of testimony, and thrust back every witness,
and reject every document, he can, upon pleas which, whatever their
original ground or design, he very well knows do not impeach the real
value of the evidence rejected. But into this topic we must not enter. It
is not our present object to write upon the reform of the laws. The
subject would lead us much too far.
One general remark only we will venture to make. Neither in nor out of the
profession must men yet be impatient with the frequent changes that our
laws undergo. Though, in common with our author, we estimate highly a
settled state of things, and have to deprecate the rashness of some too
hasty legislators, we cannot yet "lay aside the knife." They are very
inconvenient these partial changes, but there is no other mode of
proceeding. Whilst we are living in the very city which we have to
improve, and in great part to rebuild, what else can we do but pull down
here and there a street at a time, and reconstruct it on a better plan? It
is miserable work this pulling down. One is blinded by dust--one loses
one's way; all seems ruin and confusion. But the new street rises--the
rubbish is removed--the dust is laid; one finds one's way again, and finds
it twice as short as before. It is only by successive changes of this kind
that the great city of our jurisprudence can be adapted to the wants of
its multiplied and changed inhabitants.
We ought perhaps to mention, that Mr Warren has been discreetly silent on
some of the topics to which we have ventured to allude. He has very wisely
avoided all questions of casuistry; and we trust that, in our glances on
the moral position of the bar, we shall not be thought to have manifested
any want of respect for a learned body, the members of which, in their
individual character, stand as high in our estimation as those of any body
whatever, and which, as a whole, presents a greater array of talent than
in any other denomination of men could be met with. We revert once more to
Mr Warren's very useful, able, and praiseworthy publication to wish him
success, not only in this undertaking, which may be already said to be
crowned with success, but in the still greater and more laborious
enterprise which he has on foot, and which this specimen of his legal
authorship shows him fully competent to achieve.