From this primary condition, it is impossible for any human being to

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.'

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