divisions of the legal profession, indicate how, in this, as in other
vocations, the division of labour operates in England; while on this side
of the water, the contrary principle not only assigns to the lawyer a
degree of knowledge and aptitude in each branch of his calling, but lays
him under contribution in every political and social exigency, as an
interpreter or advocate of public sentiment; hence his remarkable
versatility and comparatively superficial attainments. In the history of
English law, the early struggles and profound acquirements of her
disciples form the salient points; while in that of America, they are to
be found rather in the primitive resources of justice and the varied
career of her ministers. With regard to the former, our many racy
descriptions of the process of Western colonization abound in remarkable
anecdotes of the unlicensed administration of justice. After the Pioneer
comes the Ranger, a kind of border police, then the Regulator, and finally
the Justice of the Peace. In the primitive communities, when a flagrant
wrong is committed, a public meeting is called, perhaps under an
oak-clump, or in a green hollow, the oldest settler is invited to the
chair, which is probably the trunk of a fallen tree; the offence is
discussed; the offender identified; volunteers scour the woods, he is
arraigned, and, if found guilty, hung, banished, or reprimanded, as the
case may be, with a despatch which is not less remarkable than the fair
hearing he is allowed, and the cool decision with which he is condemned.
There is a peculiar kind of impudence exhibited by the lawyer--it is
sometimes called 'badgering a witness,'--and consists essentially of a
mean abuse of that power which is legally vested in judge and advocate,
whereby they can, at pleasure, insult and torment each other, and all
exposed to their queries, with impunity. It is easy to imagine the relish
with which unprofessional victims behold the mutual exercise of this legal
tyranny. A venerable Justice, in one of our cities, was remarkable for the
frequent reproofs he administered to young practitioners in his court, and
the formal harangues with which he wore out the patience of those so
unfortunate as to give testimony in his presence. On one occasion, it
happened that he was summoned as a witness, in a case to be defended by
one of the juvenile members of the bar, whom he had often called to order
with needless severity. This hopeful limb of the law was gifted with more
than a common share of the cool assurance so requisite in the profession,
and determined to improve the opportunity, to make his 'learned friend' of
the bench feel the sting he had so often inflicted. Accordingly, when his
Honour took the stand, the counsel gravely inquired his name, occupation,
place of residence, and sundry other facts of his personal history--though
all were as familiar to himself and every one present as the old church,
or main street of their native town. The queries were put in a voice and
with a manner so exactly imitated from that of the judge himself, as to
convulse the audience with laughter; every unnecessary word the hampered
witness used was reprimanded as 'beyond the question;' he was continually
adjured to 'tell the truth, the whole truth, and nothing but the truth;'
his expressions were captiously objected to; he was tantalized with
repetitions and cross-questioning about the veriest trifles; and,
finally, his tormentor, with a face of the utmost gravity, pretended to
discover in the witness a levity of bearing, and equivocal replies, which
called for a lecture on 'the responsibility of an oath;' this was
delivered with a pedantic solemnity, in words, accent, and gesture so like
one of his own addresses from the bench, that judge, jury, and spectators
burst forth into irresistible peals of laughter; and the subject of this
clever retaliation lost all self-possession, grew red and pale by turns,
fumed, and at last protested, until his young adversary wound up the farce
by a threat to commit him for contempt of court.
When Chief Justice Coleridge retired from the bench, his farewell address
deeply affected the members of the bar present: 'These are not your
severest trials,' said he, referring to the more familiar difficulties of
the profession; 'they are those which are most insidious; which beset you
in the ordinary path of your daily duty; those which spring from the
excitement of contest, from the love of intellectual display, and even
from an exaggerated sense of duty to your clients. Gentlemen--especially
my younger friends,--suffer me, without offence, to put you on your guard
against these. We can well afford to bear traditional pleasantries upon us
from without, but we cannot afford that, underlying these, there should
exist among thoughtful persons a feeling that our professional standard of
honour is questionable--that we, as advocates, will say and do in court
what we, as gentlemen, would scorn to do in the common walks of life.
Sometimes, I confess, it seems to me that we lend support to such a
feeling by the lightness with which we impute ungenerous conduct or
practices to each other. Surely no case is so sacred, no client so dear,
that ever an advocate should be called upon to barter his own
self-respect. If that be our duty, our great and glorious profession is no
calling for a gentleman.'
The relation of law to poetry is proverbially antagonistic; and the
attempt to bind imagination to technicalities has usually proved a
hopeless experiment; and yet it is curious to note how many of the
brotherhood of song were originally destined for this profession, and how
similar their confessions are, of a struggle, a compromise, and, finally,
an abandonment of jurisprudence for the sake of the Muses. Ovid, Petrarch,
Tasso, Milton, Cowper, Ariosto, and others, are examples; Scott was
faithful awhile to a branch of the law; Blackstone's only known poem is a
_Farewell to the Muse_; Marshall and Story wooed the Nine, in their youth;
Talfourd deemed it requisite to declare, in the preface to _Ion_, that he
'left no duty for this idle trade,' and Proctor only weaves a song in the
intervals of his stern task as a Commissioner of Lunacy. With philosophy
the law is more congenial: Bacon and Mackintosh are illustrious examples
of their united pursuit. Sir Thomas More wrote verses on the wall of his
prison with a coal, and Addison compliments Somers on his poetry in his
dedication of the _Campaign_. Lord Mansfield's name appears in history a
successful competitor for the Oxford prize poem. Lyndhurst and Denham were
given to rhyme, and Sir William Jones is popularly known by his nervous
lines on _What constitutes a State?_ Lord Jeffrey is one of the most
characteristic modern examples of the union of legal and literary
success,--his taste of the latter kind having, with the aid of a
felicitous style, made him the most famous reviewer of his day, while the
mental traits of the advocate unfitted him to appreciate the ideal, as
they rendered him expert and brilliant in the discussion of rhetoric,
facts, and philosophy.
Its connection with the most adventurous and tragic realities of life
often brings law into the sphere of the dramatic and imaginative. Popular
fiction has found in its annals all the material for profound human
interest and artistic effect. Scott's most pathetic tale, the _Heart of
Mid-Lothian_, _Ten Thousand a Year_, and _Bleak House_, are memorable
examples. The trials of Russell, Strafford, Vane, and other noble
prisoners charged with high treason, have furnished both plot and
incidents for popular novelists. Uriah Heep, Oily Gammon, and Gilbert
Glossin, are familiar types of legal villany. Thackeray's best work,
artistically speaking--_Henry Esmond_--is largely indebted to the State
Trials of Queen Anne's time for its material. Have you ever seen Portia
enacted by a woman of genius? Then has the romance of law been
impersonated for ever to your mind. That demoniac plaintiff, so memorably
represented by Kean, with his haunting expression and voice,--the noble
wife of Bassanio, uttering, in tones of musical entreaty, her immortal
plea for Mercy, and, when it failed to touch the Jew's heart of adamant,
cleaving his hope of vengeance by a subtle evasion,--the joy of Antonio,
the fiat of the judge, the merry reunion and gay bridal talk at Belmont
that night, whose moonlit gladness lives for ever in the page of
Shakspeare,--Queen Katherine's defence, and Othello's argument before
their judges, equally show how effective is a tribunal under the hand of
the poet of Nature; and every barrister of long experience can relate
episodes in his career 'stranger than fiction.'
Although one would naturally turn to the State Trials, _Causes Célèbres_,
_Memoirs of Vidocq_, and similar works, for the dramatic materials
developed by process of law, yet, to the initiated, there is an equal fund
of interest in those researches of the profession which appear to deal
only with technicalities. How many effective situations have playwrights,
and such observers of human nature as Hogarth, drawn from, or grouped
around the formal act of making or reading a Will! There is positive
romance in the task of the Conveyancer, when he traces the title of an
estate far back through the ramifications of family history, often
bringing to light the most curious historical facts and remarkable
personal incidents. Questions of property, of heirship, of fraud, and of
divorce, involve manifold relative facts, that only require the sequence
and arrangement of literary art, to make them dramas. Perhaps no field of
character has yielded types as memorable to the writers of modern fiction
as that of the Law. Think of Balzac's diagnosis of the French statutes
regulating burial and marriage settlements, in his psychological Tales; of
Brass, Tulkinghorn, and Peyton. Libel cases vie with police reports in
unveiling the tragedy and comedy of life. That a trial involves scope for
the broadest humour, or the most facetious invention, is evident from the
Moot Court having become a permanent form of public entertainment in
London.
No profession affords better opportunities for the study of human nature;
indeed, an acute insight of motives is a prerequisite of success; but
unfortunately it is the dark side of character, the selfish instincts,
that are most frequently displayed in litigation, and hence the exclusive
recognition of these which many a practised lawyer manifests. In its ideal
phase, among the noblest--in its possible actuality, among the lowest--of
human pursuits, we can scarcely wonder that popular sentiment and
literature exhibit such apparently irreconcilable estimates of its value
and tendencies. English lawyers of the first class are scholars and
gentlemen. Classical knowledge and familiarity with standard modern
literature are indispensable to their equipment; and such attainments are
usually conducive to a humane and refined character. In the programme
suggested by eminent lawyers for a general training for the Bar, there is,
however, an amusing diversity of opinion as to the best literary culture;
one writer recommends the Bible, another Shakspeare, one English history,
and another Joe Miller, as the best resource for apt quotation and
discipline in the art of efficient rhetoric. Coke was remarkable for his
citations from Virgil. But there is no doubt that general knowledge is an
essential advantage to the lawyer, if he understand the rare art of using
it with tact. The mere fact that the highest political distinction and
official duty are open to the lawyer, ought to incline him to liberal
studies and comprehensive acquaintance with literature, science, and
philosophy.
How distinctly in social life the phases of the legal mind have become, is
evident from such allusion as that of a Quarterly Reviewer, who, in a
political discussion, remarks that 'Mr. Percival was only a poorish _nisi
prius_ lawyer, and there is no kind of human being so disagreeable to the
gross Tory nation;' while De Quincey, with that philosophic benignity
which sometimes inspires his weird pen, observes that 'he had often
thought that the influence of a portion of the acrid humours, which seem
an element in the human mental constitution, being drained off, as it
were, in forensic disputation, raised the lawyer above the average of
mankind, in the qualities that give enjoyment to society.'
The trial of Aaron Burr elicited the most characteristic eloquence of Clay
and Wirt; that of Knapp, the tragic force of statement in which Webster
excelled. Emmet's address to his judges has become a charter to his
countrymen. Patrick Henry's remarkable powers of argument and appeal,
which fanned the embers of Revolutionary zeal into a flame, originally
exhibited themselves in a Virginia courthouse. And if eloquence has been
justly described as existing 'in the man, in the subject, and in the
occasion,' we can easily imagine why the legal profession affords it such
frequent and extensive scope.
The intellectual process by which the advocate seeks his ends is
observable in the best conversation and writing. Almost all good talkers
are essentially pleaders; they espouse, defend, illustrate, or maintain a
question. Many of Lord Jeffrey's reviews are little else but special
pleadings, and Macaulay's most brilliant articles are digests executed
with taste and eloquence; the subject is first thoroughly explored, then
its presentation systematized, and afterwards stated, argued, and summed
up, after the manner of a charge or plea, with the addition of rhetorical
graces inadmissible in a legal case. There is nothing, therefore, in the
peculiar exercise of the faculties which renders law a profession apt to
pervert second-rate minds; the evil lies in the predetermined side, the
logic aforethought--if we may so say,--the interested choice and
dogmatical assumption of a certain view undertaken 'for a consideration.'
'I know some barristers,' observes Thackeray, 'who mistake you and I for
jury-boxes when they address us; but these are not your modest barristers,
not your true gentlemen.'
The special pleading and judicial complacency of Jeffrey--in other words
his lawyer's mind--prevented his recognition of the highest and best
poetical merit. It has been said of the conversation of his circle at
Edinburgh, that it was, 'in a very great measure, made up of brilliant
disquisition, of sharp word-catching, ingenious thinking, and parrying of
dialectics, and all the quips and quiddities of bar-pleading. It was the
talk of a society to which lawyers and lecturers had, for at least a
hundred years, given the tone.'[22]
When from the advocate we pass to the bench, and from the feed barrister
to the philosophical jurist, a new and majestic vista opens to the view.
As in literature, two great divisions mark the legal character: there is
the narrow but thoroughly-informed practitioner, and the comprehensive
judicial mind,--the first only distinguished within a limited bound of
immediate utility and respectable adherence to precedent, and the other a
pioneer in the realm of truth, a brave and original minister at the altar
of justice. Lord Brougham, in his _Sketches of English Statesmen_, has
admirably indicated these two classes. To the former he says, 'The precise
dictates of English statutes, and the dictates of English judges and
English text-writers, are the standard of justice. They are extremely
suspicious of any enlarged or general views upon so serious a subject as
law.' The second and higher order of lawyers are well described in his
portrait of Lord Grant, of whose charges he remarks: 'Forth came a strain
of clear, unbroken fluency, disposing in the most luminous order all the
facts and all the arguments in the cause; reducing into clear and simple
arrangement the most entangled masses of broken, conflicting statement;
settling one doubt by a parenthetical remark, passing over another only
more decisive that it was condensed; and giving out the whole impression
of the case upon the judge's mind,--the material view, with argument
enough to show why he so thought, and to prove him right, and without so
much reasoning as to make you forget that it was a judgment you were
hearing, and not a speech.' Do we not often find, in literature and in
life, counterparts of this picture of a judicial mind? Add to it
discovery, and we have the legal philosopher; intrepid love of right, and
we recognize the legal reformer. To this noble category belong such
lawyers as Mansfield and Marshall, Romilly, Erskine, and Webster. Genius
for the bar is as varied in its character as that for poetry or art. In
one man the gift is acuteness, in another felicity of language; here,
extraordinary perspicuity of statement; there, singular ingenuity of
argument. It is rhetoric, manner, force of purpose, a glamour that
subdues, or a charm that wins; so that no precise rules, irrespective of
individual endowments, can be laid down to secure forensic triumph.
Doubtless, however, the union of a sympathetic temperament and an
attractive manner, with logical power and native eloquence, form the ideal
equipment of the pleader. Erskine seems to have combined these qualities
in perfection, and to have woven a spell both for soul and sense. He
magnetized, physically and intellectually, his audience. 'Juries,' says
his biographer, 'declared that they felt it impossible to remove their
looks from him when he had riveted, and, as it were, fascinated them by
his first glance; and it used to be a common remark of men who observed
his motions, that they resembled those of a blood-horse.'
The tendency to subterfuge in the less highly endowed, is but an
incidental liability; in general, law-practice seems to harden and make
sceptical the mind absorbed in its details. One can almost invariably
detect the keen look of distrust or the smile of incredulity in the
physiognomy of the barrister. Everything like sentiment,
disinterestedness, and frank demonstration, is apt to be regarded without
faith or sympathy. Most lawyers confess that they place no reliance on the
statements of their clients. If you introduce a spiritual hypothesis or a
practical view of any topic, it is treated by this class of men with
ill-concealed scorn. The habit of their minds is logical; they usually
ignore and repudiate those instincts which experience seldom reveals to
them, and observation of life in its coarser phases leads them to doubt
and contemn. But, while thus less open to the gentler and more sacred
sympathies, they often possess the distinction of manliness, of courage,
and generosity. The very process which so exclusively develops the
understanding, and makes their ideal of intellectual greatness to consist
in aptitude, subtlety, and reasoning power, tends to give a certain vigour
and alertness to the thinking faculty, and to emancipate it from morbid
influences. One of Ben Jonson's characters thus defines the lawyer:--
'I oft have heard him say how he admired
Men of your law-profession, that could speak
To every cause and things mere contraries,
Till they were hoarse again, yet all be law.
That, with most quick agility, could turn
And return, make knots and undo them,
Give forked counsel, take provoking gold
On either hand,--and put it up.'
And one of Balzac's characters says:--'Savez-vous, mon cher, qu'il existe
dans notre société trois hommes: le prêtre, le médecin, et l'homme de
justice, qui ne peuvent pas estimer le monde? Ils ont des robes noires,
peut-être parce qu'ils portent le deuil de toutes les vertus, de toutes
les illusions. _Le plus malheureux des trois est l'avoué._' When the
question at issue is purely utilitarian, and the interest discussed one of
outward and practical relations, this legal training comes into eminent
efficiency: in a word, it is applicable to affairs, but not to sentiment;
to fact, but not to abstract truth. How evanescent is often a great
lawyer's fame; often as intangible as that of a great vocalist or actor.
Even their eloquence is now rare. Great lawyers are uniformly distrustful
of rhetoric, and their power is based on knowledge. We learn from the son
and biographer of Chief Justice Parsons, that a special reason of his
eminent superiority was that accident gave him early and undisturbed
access to the best law library in America. It has been truly said, that
the eloquence of the bar has become a tradition; 'it is suspected as
impugning sense and knowledge,' and is opposed to the practical spirit of
the age. Yet the advocate, like the poet, is occasionally born, not made,
notwithstanding the maxim _orator fit_. A mind fertile in expedients,
warmed by a temperament which instinctively seizes upon, and, we had
almost said, incarnates, a cause, is a phenomenon that sometimes renders
law an inspiration instead of a dogma. Such a pleader lately lived in one
of the Eastern States. Not only the grasp of his thought, but his
elocution, announced that he had literally thrown himself into the case.
It would be more strictly correct to say that he had absorbed it. The
gesture, the eye, the tone of his voice, the quiver of the muscle, nay,
each lock of his long steel-gray hair, that he tossed back from his
dripping brow, in the excitement of his fluent harangue, seemed alive and
overflowing with the rationale and the sentiment of the cause; his
enthusiasm was real, however it may have originated; and, by identifying
himself with his client, he espoused the argument as if it were vital to
his own interest. Such instances, however, are exceptional; few are the
lawyers thus constituted. Accepting their cases objectively, and
maintaining them by formula, the usual effect is that which Burke
describes in his character of Greville: 'He was bred to the law, which is,
in my opinion, one of the first and noblest of human sciences--a science
which does more to quicken and invigorate the understanding than all other
kinds of learning put together; but it is not apt, except in persons very
happily born, to open and liberalize the mind exactly in the same
proportion.'
Why is the poet's function the noblest? Because it is inspired, not
arbitrarily decreed by the will. Mental activity is grand and beautiful in
proportion as it is disinterested; and it is on account of the almost
inevitable forcing, by circumstances, of a lawyer's mind from the line of
honest conviction into that of determined casuistry, that the moral
objection to the pursuit is so often urged. 'The indiscriminate defence of
right and wrong,' says Junius, 'contracts the understanding while it
corrupts the heart.' Some men, in conversation, affect us as unreal. We
attach no vital interest to what they say, because the mind appears to act
wholly apart--the fusion of sense and feeling, which we call soul, is
wanting; there is no conviction, no personal sentiment, no unselfish love
of truth in what they say; and yet it may be intelligent, erudite, and
void of positive falsity--still it is mechanical; the intellect is _used_,
not _inspired_; willed to act, not moved thereto: this is the
characteristic of legal training, unmodified by the higher sentiments; it
makes intellectual machines, logical grist-mills, talkers by rote; the
rational powers, from long slavery to temporary and interested aims, seem
to have lost magnanimity; their spontaneous, genuine, and earnest action
has yielded to a conventional and predetermined habit. Yet at the other
extreme we see the most lofty and permanent intellectual results. It has
been justly said that the Code Napoleon is even now the sole embodiment
of Lord Bacon's thought--'put them (the laws) into shape, inform them with
philosophy, reduce them in bulk, give them into every man's hand. Laws are
made to guard the rights of the people, not to feed the lawyers.'