escape; if he goes into the desert, he is still subject to the laws of
Nature, and, however retired he may live amid his race, the laws of
society press upon him at some point; if his own opinion is his law in
matters of fancy or politics, he must still obey the law of the road: in
one country the law of primogeniture; in another, that of conscription; in
one circle, a law of taste; in another, of custom; and in a third, of
privilege, reacts upon his free agency; at his club is sumptuary law; over
his game of whist, Hoyle; in his drawing-room, Chesterfield; now _l'esprit
du corps_; and, again, the claims of rank; in Maine, the liquor law; in
California, lynch law; in Paris, a _gens d'armes_; at Rome, a permission
of residence; on an English domain, the game laws; in the fields of
Connecticut, a pound; everywhere, turnpikes, sheriffs' sales, marriage
certificates, prisons, courts, passports, and policemen, thrust before the
eyes of the most peaceable and reserved cosmopolite--insignia that assure
him that law is everywhere unavoidable. His physician discourses to him of
the laws of health; his military friends, of tactics; the beaux, of
etiquette; the belles, of _la mode_; the authors, of tasteful precedents;
the reformer, of social systems; and thus all recognize and yield to some
code.
If he have nothing to bequeath, no tax to pay, no creditor to sue, or
libeller to prosecute, he yet must walk the streets, and thereby realize
the influence or neglect of municipal law in the enjoyment of 'right of
way,' or the nausea from some neglected offal; the accidents incident to
travel in this country assure him of the slight tenure of corporate
responsibility under republican law; and the facility of divorce, the
removal of old landmarks, the incessant subdivision and dispersion of
estates, indicate that devotion to the immediate which a French
philosopher ascribes to free institutions, and which affects legal as well
as social phenomena. In a tour abroad, he discovers new majesty in the
ruins of the Forum, from their association with the ancient Roman law,
upon which modern jurisprudence is founded; and a curious interest
attaches to the picturesque beauty of Amalfi, because the Pandects were
there discovered. Westminster revives the tragic memories of the State
trials, and seems yet to echo the Oriental rhetoric that made the trial of
Hastings a Parliamentary romance. At Bologna, amid the old drooping
towers, under the pensive arcades, in the radiant silence of the
picture-gallery, comes back the traditionary beauty of the fair lecturer,
who taught the students juridical lore from behind a curtain, that her
loveliness might not bewilder the minds her words informed; and at Venice,
every dark-robed, graceful figure that glides by the porticoes of San
Marco's moonlit square, revives the noble Portia's image, and that 'same
scrubbed boy, the doctor's clerk.'
No inconsiderable legal knowledge has been traced in Shakspeare. His
Justice Shallow and Dogberry are types of imbecile magistracy; in the
historical plays, the law of legitimacy is defined; and not a little
judicial lore is embodied in the _Merchant of Venice_ and _Taming the
Shrew_. Lord Campbell wrote a book to prove that Shakspeare, in his youth,
must have been, at least, an attorney's clerk. One of the characters in a
popular novel is made to say that he is never in company with a lawyer but
he fancies himself in a witness-box. This hit at the interrogative
propensity of the class is by no means an exaggerated view of a use to
which they are specially inclined to put conversation; and if we compare
the ordeal of inquiry to which we are thus subjected, it will be found
more thorough and better fitted to test our knowledge than that of any
other social catechism; so that, perhaps, we gain in discipline what we
lose in patience. It is to be acknowledged, also, that few men are better
stocked with ideas, or more fluent in imparting them, than well-educated
lawyers. There is often a singular zest in their anecdotes, a precision in
their statement of facts, and a dramatic style of narrative, which render
them the pleasantest of companions. In all clever coteries of which we
have any genial record, there usually figures a lawyer, as a wit, a boon
companion, an entertaining dogmatist, or an intellectual champion. In
literature, the claims and demerits of the profession are emphatically
recognized; and it is curious to note the varied inferences of
philosophers and authors. Thus, Dr. Johnson says to Boswell: 'Sir, a
lawyer has no business with the justice or injustice of the cause he
undertakes;' and 'everybody knows you are paid for affecting a warmth for
your client.' 'Justice,' observes Sydney Smith, 'is found, experimentally,
to be best promoted by the opposite efforts of practised and ingenious
men, presenting to an impartial judge the best argument for the
establishment and explanation of truth.' 'Some are allured to the trade of
law,' says Milton, 'by litigiousness and fat fees;' one authoritative
writer describes a lawyer as a man whose understanding is on the town;
another declares no man departs more from justice; Sancho Panza said his
master would prattle more than three attorneys; and Coleridge thought
that, 'upon the whole, the advocate is placed in a position unfavourable
to his moral being, and indeed to his intellect also, in its higher
powers;' while it was a maxim of Wilkes, that scoundrel and lawyer are
synonymous terms. Our pioneer _littérateur_, Brockden Brown, whose
imaginative mind revolted at the dry formalities of the law, for which he
was originally intended, defined it as 'a tissue of shreds and remnants of
a barbarous antiquity, patched by the stupidity of modern workmen into new
deformity.' 'In the study of law,' remarks the poet Gray, 'the labour is
long, and the elements dry and uninteresting, nor was there ever any one
not disgusted at the beginning.' Foote, the comic writer and actor,
feigned surprise to a farmer that attorneys were buried in the country
like other men; in town, he declared, it was the custom to place the body
in a chamber, with an open window, and it was sure to disappear during the
night, leaving a smell of brimstone. A portrait-painter assures us he is
never mistaken in a lawyer's face; the avocation is betrayed to his
observant eye by a certain _inscrutable_ expression; and Dickens has
given this not exaggerated picture of a class in the profession:
'Smoke-dried and faded, dwelling among mankind, but not consorting with
them, aged without experience of genial youth, and so long used to make
his cramped nest in holes and corners of human nature, that he has
forgotten its broader and better range.'
A French writer defines a lawyer as 'un marchand de phrases, un fabricant
de paradoxes, qui ment pour l'argent et vend ses paroles;' and another
remarks of the profession that it is a 'vaste champ, ouvert aux ambitions
des honnêtes; une tribune offerte aux subtilités de la pensée et l'abus de
la parole;' while Arthur Helps declares that 'law affords a notable
example of loss of time, of heart, of love, of leisure. I observe,' he
adds, 'that the first Spanish colonists in America wrote home to
Government, begging them not to allow lawyers to come to the colony.'[20]
On the other hand, what an eloquent tribute to the possible actual
beneficence of law is the close of Lord Brougham's memorable speech in its
defence:--
'You saw the greatest warrior of the age--conqueror of Italy, humbler
of Germany, terror of the North,--saw him account all his matchless
victories poor, compared with the triumph you are now in a condition
to win,--saw him contemn the fickleness of Fortune, while in despite
of her he could pronounce his memorable boast, "I shall go down to
posterity with the Code in my hand!" You have vanquished him in the
field; strive now to rival him in the sacred arts of peace. Outstrip
him as a lawgiver whom in arms you overcame. The lustre of the Regency
will be eclipsed by the more solid and enduring splendour of the
Reign. It was the boast of Augustus--it formed part of the glare in
which the perfidies of his earlier years were lost--that he found Rome
of brick, and left it of marble. But how much nobler will be the
Sovereign's boast, when he shall have it to say, that he found law
dear and left it cheap; found it a sealed book, left it a living
letter; found it the patrimony of the rich, left it the inheritance of
the poor; found it the two-edged sword of craft and oppression, left
it the staff of honesty and the shield of innocence!'
'Why may not this be a lawyer's skull?' muses Hamlet, in the graveyard;
'where be his quiddets now, his quillets, his cases, his tenures, and his
tricks? Humph! this fellow might be in 's time a greater buyer of land,
with his statutes, his recognizances, his fines, his double-vouchers, his
recoveries; and this, the fine of his fines, and the recovery of his
recoveries, to have his fine poll full of dirt! The very conveyances of
his lands will hardly lie in this box; and must the inheritor himself have
no more?'
The diversities of the profession in England and America are curious and
suggestive. Already is the obligation mutual; for if in the old country
there are more profound, and elaborate resources, in the new the science
has received brilliant elucidations, and its forms and processes been
simplified. There routine is apt to dwarf, and here variety to dissipate
the lawyer's ability; there he is too often a mere drudge, and here his
vocation regarded as the vestibule only of political life. In England, the
advocate's knowledge is frequently limited to his special department; and
in America, while it is less complete and accurate, he is versed in many
other subjects, and apt at many vocations. 'The Americans,' says Sydney
Smith, 'are the first persons who have discarded, in the administration of
justice, the tailor, and his auxiliary the barber,--two persons of endless
importance in the codes and pandects of Europe. A judge administers
justice without a calorific wig and parti-coloured gown--in a coat and
pantaloons; he is obeyed, however; and life and property are not badly
protected in the United States.'
There can be no more striking contrast than that between the lives of the
English chancellors and the American chief justices: in the former, regal
splendour, the vicissitudes of kingcraft and succession, of religious
transition, of courts, war, the people and the nobility, lend a kind of
feudal splendour, or tragic interest, or deep intrigue, to the career of
the minister of justice; he is surrounded with the insignia of his
office; big wigs, scarlet robes, ermine mantles, the great seal,
interviews with royalty, the trappings and the awe of power invest his
person; his career is identified with the national annals; the lapse of
time and historic associations lend a mysterious interest to his name; in
the background, there is the martyrdom of Thomas à Becket, the speech of
the fallen Wolsey, the scaffold of Sir Thomas More, the inductive system
and low ambition of Bacon, and the literary fame of Clarendon. Yet, in
intellectual dignity, our young republic need not shrink from the
comparison. The Virginia stripling, who drilled regulars in a
hunting-shirt, is a high legal authority in both hemispheres. 'Where,'
says one of Marshall's intelligent eulogists, 'in English history, is the
judge whose mind was at once so enlarged and so systematic; who had so
thoroughly reduced professional science to general reason; in whose
disciplined intellect technical learning had so completely passed into
native sense?' And now that Kent's _Commentaries_ have become the
indispensable guide and reference of the entire profession, who remembers,
except with pride, that, on his first circuit, the Court was often held in
a barn, with the hayloft for a bench, a stall for a bar, and the shade of
a neighbouring apple-tree for a jury-room? The majesty of justice, the
intellectual superiority of law as a pursuit, is herein most evident;
disrobed of all external magnificence, with no lofty and venerable halls,
imposing costume, or array of officials, the law yet borrows from the
learning, the fidelity, and the genius of its votaries, essential dignity
and memorable triumphs. 'Of law, no less can be said,' grandly observes
Hooker, 'than that her seat is the bosom of God, her voice the harmony of
the world.'
The most celebrated English lawyers have their American prototypes; thus,
Marshall has been compared to Lord Mansfield, Pinkney to Erskine, and Wirt
to Sheridan (who was a student of the Middle Temple, though not called to
the bar); imperfect as are such analogies, they yet indicate, with truth,
a similarity of endowment, or style of advocacy. The diverse influence of
the respective institutions of the two countries is, however, none the
less apparent because of an occasional resemblance in the genius of
eminent barristers. The genuine British lawyer is recognized, by the
technical cast of his expression and habit of mind, to a degree seldom
obvious in this country. Indeed, no small portion of the graduates of our
colleges who select the law as a pursuit, do so without any strong bias
for the profession, but with a view to the facilities it affords for
entrance into public life. Some of these aspirants thus become useful
servants of the State; a few, statesmen; but the majority, mere
politicians; and from the predominance of the latter class originate half
the errors of American legislation; for, however much profound legal
training may fit a man of ability for the higher functions of
representative government, a superficial knowledge and practice of law
renders him only an adept in chicanery and the 'gift of the gab;' and it
is easy to imagine how a mob of such adroit and ambitious
partisans--especially when brought together from the narrow sphere of
village life--may pervert the great ends of legislative action. They make
the laws according to their own interests; and there is no prospect of the
reformation demanded in juridical practice, while such a corps form the
speaking and voting majority, and act on what has been justly called the
one great principle of English law,--'_to make business for itself_.'[21]
Two names appear on the roll of English lawyers which are identified with
the worst characteristics of the race--impious, wild, and browbeating
arrogance,--that of Jeffreys, whose ferocious persecution of those
suspected of complicity with Monmouth's Rebellion forms one of the most
scandalous chapters in the history of British courts; and Lord Thurlow,
who, in a more refined age, won the alias of Tiger, for his rudeness,
inflexibility, oaths, and ill-manners, his black brows, and audible
growls. In beautiful contrast shine forth the Law Reformers of England,
whose benign eloquence and unwearied labour mitigated the sanguinary
rigours of the criminal code, and pressed the Common Law into the service
of humanity. Romilly and Erskine have gained a renown more enduring than
that of learned and gifted advocates; their professional glory is
heightened and mellowed by the sacred cause it illustrates.
The trial by jury and _habeas corpus_ are the grand privileges of England
and our own country; the integrity of the former has been invaded among
us, by the abuse incident to making judgeships elective, and by the
lawless spirit of the western communities; while the conviction of such
eminent criminals as Earl Ferrers, Dr. Dodd, and Fauntleroy, prove how it
has been, and is, respected by the public sentiment of England.
'The great expense of the simplest lawsuit,' writes an English lawyer, in
a popular magazine, 'and the droll laws which force all English subjects
into a court of equity for their sole redress, in an immense number of
cases, lead, at this present day, to a very entertaining class of
practical jokes. I mean that ludicrous class, in which the joke consists
of a man's taking and keeping possession of money or other property to
which he even pretends to have no shadow of right, but which he seizes
because he knows that the whole will be swallowed up if the rightful owner
should seek to assert his claim.' The instances which are cited are rather
fitted to excite a sense of humiliation than of fun, at the cruel
injustice of a legal system which expressly organizes and protects
robbery.
The legal treatises produced in England, in modern times, are wonderful
monuments of erudition, research, and analytical power. The intelligent
lawyer who examines Spence's two volumes on equity, does not wonder his
brain gave way when thus far advanced on his gigantic task. It is this
patient study, this complete learning, which distinguishes the English
lawyer; in point of eloquence, he is confessedly inferior to his Irish and
American brethren, as they are to him in profundity; in the careful and
persistent application of common sense to the hoarded legal acquisitions
of centuries, the great minds of the English bar stand unrivalled. It is,
indeed, the most certain professional avenue to official power. 'Rely upon
it,' says a brilliant novelist, 'the barrister's gown is the
wedding-garment to the British feast of fat things;' and Veron declares
that 'en France, mais en France seulement, un avocat est propre à tout,
tandis qu'un mèdecin n'est jugé propre à rien qu' à hanter les hôpitaux.'
In this country, the lawyers of each State have a characteristic
reputation; the Bar of Boston, as a whole, is more English, that of the
South more Irish, in its general merits. Marshall was an exception to the
eloquent fame of American lawyers born and bred south of the Potomac; his
superiority was logical: 'aim exclusively at strength,' was his maxim; and
'close, compact, simple, but irresistible logic,' his great distinction.
Wheaton's labours in behalf of International, and Hamilton's in that of
Constitutional law, have laid the civilized world, as well as their native
country, under high and lasting obligations.
The popular estimate of a profession is dependent on circumstances; and
this, like every other human pursuit, takes its range and tone from the
character of its votary, and the existent relation it holds to public
sentiment; not so much from what it technically demands, but from the
spirit in which it is followed, come the dignity and the shame of the law.
The erudite generalizations of Savigny belong to the most difficult and
enlarged sphere of thought, while the cunning tergiversations of the legal
adventurer identify him with sharpers and roguery. How characteristic of
Aaron Burr, that he should sarcastically define law as 'whatever is
boldly asserted and plausibly maintained.' In the first cycle of our
Republic, when a liberal education was rare, the best lawyers were
ornaments of society, and the intellectual benefactors of the country. In
that study were disciplined the chivalrous minds of Marshall, Hamilton,
Adams, Morris, and other statesmen of the Revolution. A trial, which
afforded the least scope for their remarkable powers, was attended by the
intelligent citizens with very much the same kind of interest as filled
the Athenian theatre--a mental banquet was confidently expected and deeply
enjoyed. To have a great legal reputation, then, implied all that is noble
in intellect, graceful in manner, and courteous in spirit--it bespoke the
scholar, the gentleman, and the wit, as well as the advocate. When Emmet
came hither with the _prestige_ of inherited patriotism and talents, as
well as the claims of an exile, he found men at the bar whose eloquence
rivalled the fame of Curran and Grattan.
In Scotland, lawyers are eminently identified with social distinction and
arrangements. 'The fact of the substitution of the legal profession for
the old Scottish aristocracy,' says a late review, 'in the chief place in
Edinburgh society, is typified by the circumstance that the so-called
Parliament House, which is on the site of the ancient hall where the
Estates of the Kingdom sat when the nation made its own laws, is now the
seat of the Scottish law-courts, and the daily resort of the interpreters
of the land. The general hour of breakfast in Edinburgh is determined by
the time when the Courts open in the morning; and, dispersed through their
homes or at dinner-parties in the evening, it is the members of the legal
profession that lead the social talk.'
The equality of free institutions was never more aptly illustrated than by
a scene which occurred in a courthouse we used to frequent, in boyhood, in
order to hear the impassioned rhetoric of a gifted criminal lawyer. A
trial of peculiar interest was to come on; the room was crowded with
spectators and officials; the judge, a venerable specimen of the stern and
dignified magistrate, took his seat; the sheriff announced the opening of
the court, and the clerk called over the names of those summoned to act as
jurors. We were startled to hear, among those of grocers, draymen, and
mechanics, the well-known name of an aristocratic millionaire. It was
thrice repeated, and no answer given. 'Has that juror been duly summoned?'
inquired the judge. 'Yes, your honour,' was the reply. 'Let two constables
instantly bring him before us,' said the magistrate. One can imagine the
vexation of the rich gentleman of leisure, when dawdling, in a flowered
_robe de chambre_, over his sumptuous breakfast, to be disturbed by those
rude minions of the law; however, there was no alternative, and he was
obliged to despatch his meal and accompany the distasteful escort. He
entered the court, where a deep silence prevailed, with a supercilious
smile and complacent air of well-bred annoyance. 'How dare you keep the
court waiting, sir?' was the indignant salutation of the judge, who,
perhaps, when last in the gentleman's company, had sipped a glass
delectable of old Madeira to his health. 'I intended to pay my fine and
not serve,' stammered the millionaire. 'And do you suppose, sir, that
wealth exonerates you from the duties of a citizen, and is any apology for
your gross incivility in thus detaining the court for over an hour? No
excuse will be accepted; either take your seat in the jury-box or stand
committed.' Through the silent crowd the luxurious man of fortune threaded
his way, and sat down between a currier and wood-merchant, with whom he
had to listen to the law and the evidence for a fortnight.
The author of the _Lives of the English Chancellors_ refers to the usual
explanation of the origin of the term 'wool-sack,' as intended in
compliment to the staple product of the realm; and adds his own belief
that, in 'the rude simplicity of early times, a sack of wool was
frequently used as a sofa.' In the colonial era of our history, when
ceremony and etiquette ruled the public hall as well as the private
drawing-room, American judges wore the robe and wig still used in the Old
Country. These insignia of authority inspired an awe, before the era of
legal reform and of philosophical jurisprudence, which comported with the
tyrannous exercise of juridical power, when it was little more than the
medium of despotism, and when the calm reproach of Stafford was a literal
truth: 'It is better to be without laws altogether, than to persuade
ourselves that we have laws by which to regulate our conduct, and to find
that they consist only in the enmity and arbitrary will of our accusers.'