A cursory glance at law fictions: Legal suppositions endless: The professional jargon of an attorney: An enquiry into the integrity of barristers and the equity of decisions at law: A. and B. or a case stated: A digression from law to philosophy

In the mean time, my application to the law was incessant; and consequently my intercourse with lawyers daily increased. I endeavoured to load my brain with technical terms and phrases, to understand technical distinctions, and to acquaint myself with the history of law fictions, and the reasons on which they had been founded.

To these subjects my attention had been turned by Mr. Hilary; who, being a Solicitor, was well acquainted with the value of them, to the man who meant to make himself a thorough lawyer.

The consideration of this branch of law staggered my judgment. Trottman and Hilary were intimate. The latter had invited us and other friends to dinner; and, as I found the acuteness of Trottman useful to me in my pursuits, I took this and every occasion to put questions: which he was very ready to answer. As it happened, my enquiry on the subject of law fictions brought on the following dialogue: which was supported by Trottman entirely in his own style.

'According to your account then,' said I, in answer to a previous remark, 'in Banco Regis the King is always supposed to be present.'

'No doubt, what question can there be of that? One invisible kind of being can as easily be supposed as another. And I hope you will not dispute the actual presence of that pleasant gentleman called the devil, in any one of our courts?'

'By no means!'

'As for his majesty, he, God bless him! by the nature of his office is hic et ubique: here, there, and every where. He is borne in state before each Corporation Mayor, whether Mr. or My Lord; and reposes peacefully in front of Mr. Speaker, or the Lord High Chancellor: investing them by his sacred presence with all their power.'

'How so?'

'How so! Do you forget the mace upon the table?'

'Authority then has that virtue that, like grace divine into a wafer, it can be transfused into wood.'

'Yes. A lord's white wand, a general's baton; a constable's staff. It is thought necessary, I grant, in some of these cases that the block should be carved and gilded.'

'Well, the position is that, in Banco Regis, the King is always present.'

'So says the law.'

'But the law, it appears, tells a lie; and, from all that I have heard, I wish it were the only one that it told.'

'Could the law hear, sir, it would take very grave offence at your language. It only assumes a fiction.'

'John Doe and Richard Roe, who are the pledges of prosecution, are two more of its supposes, or lies. I beg pardon. I should have said fictions.'

'Why, yes: considering that John Doe and Richard Roe never made their personal appearance in any court in the kingdom, were never once met, in house, street, or field, in public, or in private, nay had never yet the good luck to be born, they have really done a deal of business.'

'They resemble Legion, entering the swine: they plunge whole herds into the depths of destruction.'

'Or, if you will, they are a kind of real yet invisible hob-goblins: by whom every human being is liable to be haunted. It must however be allowed of them that they are a pair of very active and convenient persons.'

'To lawyers. But God help the rest of mankind! Are there many of these fictions?'

'More than I or any man, I believe, can at one time remember.'

'From the little I have read, this appears to be a very puzzling part of the profession.'

'Not at all; if we will take things as we find them, and neither be more curious nor squeamish than wise. I will state the process of a suit to you; and you will then perceive how plain and straight-forward it is. We will suppose A the plaintiff: B the defendant. A brings his action by bill. Action you know means this: 'Actio nihil aliud est quam jus prosequendi injudicium quod sibi debelur:' or, 'a right of prosecuting to judgment, for what is due to one's self.' B is and was supposed to be in the custody of the Marshal. Observe, supposed to be: for very likely B is walking unmolested in his garden; or what not. B we will say happens to live in Surrey, Kent, or any other county, except Middlesex; and is supposed to have made his escape, though perhaps he may have broken his leg, and never have been out of his own door. And then the latitat supposes that a bill had issued, and further supposes that it has been returned non est inventus, and moreover supposes it to have been filed. B lives in Kent, you know; and this latitat is addressed, in supposition, to the Sheriff of the county, greeting; though as to the Sheriff he neither sees, hears, nor knows any thing concerning it; and informs him that B (notwithstanding he is confined to his bed by a broken leg) runs up and down, in supposition, and secretes himself in the Sheriff's county of Kent: on which—'

'I beg your pardon: I cannot follow you through all this labyrinth of supposes.'

'No! Then you will never do for a lawyer: for I have but just begun. I should carry you along an endless chain of them; every link of which is connected.'

'And which chain is frequently strong enough to bind and imprison both plaintiff and defendant.'

'Certainly: or the law would be as dead in its spirit as it is in its letter.'

'I fear I shall never get all the phrases and forms of law by rote.'

'Why, no. If you did, heaven help you! it would breed a fine confusion in your brain. You would become as litigious and as unintelligible as our friend Stradling.'

'Mr. Stradling,' said Hilary, 'is one of my clients: an unfortunate man who, being a law-printer, has in the way of trade read so many law-books, and accustomed himself to such a peculiar jargon, as to imagine that he is a better lawyer than any of us; so that he has half-ruined himself by litigation. He is to dine with us, and will soon be here.'

'I will provoke him,' continued Trottman, 'to afford you a sample of his gibberish; you may then examine what degree of instruction you suppose may be obtained from a heterogeneous topsy-turvy mass of law phrases.'

'But why irritate your friend?'

'You mistake. He has it so eternally on his tongue that, instead of giving him pain to shew the various methods in which he supposes he could torment an antagonist at law, it affords him the highest gratification.'

'Our friend Hilary here is better qualified for the task of instruction; but he feels some of your qualms; and is now and then inclined to doubt that there is vice in the glorious system which regulates all our actions.'

'I deny that it regulates them,' said Hilary. 'If people in general had no more knowledge of right and wrong than they have of law, their actions would indeed be wretchedly regulated!'

This was a sagacious remark. It made an impression upon me that was not forgotten. It suggested the important truth that the pretensions of law to govern are ridiculous; and that men act, as Hilary justly affirmed, well or ill according to their sense of right and wrong.

Mr. Stradling soon after came; and Trottman very artfully led him into a dispute on a supposed case, which Trottman pretended to defend, and aggravated him, by contradiction, till Stradling roundly affirmed his opponent knew nothing of conducting a suit at law.

The volubility of this gentleman was extraordinary; and the trouble I thought myself obliged to bestow, at that time, on the subject could alone have enabled me to remember any part of the jargon he uttered, in opposition to Trottman: which in substance was as follows.

'Give me leave to tell you, friend Trottman, you know nothing of the matter; and I should be very glad I could provoke you to meet me in Westminster-hall. If I had you but in the Courts, damn me if you should easily get out!'

'I tell you once more I would not leave you a coat to your back.'

'You! Lord help you! I would traverse your indictment, demur to your plea, bring my writ of error, nonsuit you. Sir, I would ca sa fi fa you. I would bar you. I would latitat you, replevin you, refalo you. I would have my non est inventus, my alias, and pluries, and pluries, and pluries, ad infinitum. I would have you in trover; in detinue; I would send your loving friend Richard Roe to you. I would eject you. I would make you confess lease entry and ouster. I would file my bill of Middlesex; or my latitat with an ac etiam. Nay, I would be a worse plague to you still: I would have my bill filed in B.R. I would furnish you with a special original for C.P. You talk! I would sue out my capias, alias, and pluries, at once; and outlaw you before you should hear one word of the proceeding.'

Bless me, thought I, what innumerable ways there are of reducing a man to beggary and destruction according to law!

Trottman thus provokingly continued.

'My dear Mr. Stradling, your brain is bewildered. You go backward and forward, from one supposition to another, and from process to process, till you really don't know what you say. If I were your opponent, in any Court in the kingdom, I should certainly make the law provide you a lodging for the rest of your life.'

'Bring your action! That's all! Bring your action, and observe how finely I will nonpros you: or reduce you to a nolle prosequi. You think yourself knowing? Pshaw. I have nonsuited fifty more cunning fellows, in my time; and shall do fifty more.'

God help them! thought I.

'I have laid many a pert put by the heels. You pretend to carry an action through the Courts with me! Why, sir, I have helped to ruin three men of a thousand a year; and am in a fair way, at this very hour, of doing as much for a Baronet of five times the property.'

I listened in astonishment.

'And do you take a pleasure in remembering this?' said Hilary.

'Pleasure!' answered Stradling; staring. 'Why, do you think, Mr. Hilary, I should have taken a pleasure in ruining myself? What did I do but act according to the laws of my country? And, if men will oppose me, and pretend to understand those laws better than I do, let them pay for their ignorance and their presumption. Let them respect the law, or let their brats go beg.'

'The law I find, sir,' said I, 'has no compassion.'

'Compassion, indeed! No, sir. Compassion is a fool; and the law is wise.'

'In itself I hope it is: but I own I doubt the wisdom of its practice.'

'But this practice, you must know,' said Trottman, with a wink to
Stradling, 'Mr. Trevor means to reform.'

'Oh,' replied Stradling, 'then I suppose, when the gentleman is at the bar, he will never accept a brief, till he has first examined the equity of the case.'

'That, sir,' I replied, 'is my firm intention.'

'Ha, ha, ha! Mr. Trevor, you are a young man! You will know better in time.'

'And do you imagine, sir, that I will ever hire myself to chicanery, and be the willing promoter of fraud? If I do, may I live hated, and die despised!'

'Ay, ay! Very true! I don't remember that I ever met with a youth, who had just begun to keep his terms, who did not profess much the same. And, which is well worthy of remark, those that have been most vehement in these professions have been most famous, when they came to the bar, for undertaking and gaining the rottenest causes.'

'You shall find however, sir, that I shall be an exception to this rule.'

'Excuse me, Mr. Trevor, for not too hastily crediting hasty assertions. I know mankind as well as I know the law. However, I can only tell you that if your practice keep pace with your professions, you will never be Lord Chief Justice.'

'Do the judges then encourage barristers, who undertake the defence of bad and base actions?'

'To be sure they do. They sometimes shake their heads and look grave: but we know very well they defended such themselves: or, as I tell you, they would never have been judges. If two men have a dispute, one of them must be in the wrong. And who is able to pronounce which, except the law?'

'My dear Mr. Stradling,' said Trottman, 'you are again out of your depth. When two men dispute, it almost always happens that they are both in the wrong. And this is the glorious resource of law; and the refuge of its counsellors, and its judges.'

Trottman and Stradling were accustomed to each other's manner; and, notwithstanding the language they used, nothing more was meant than a kind of jocular sparring: which would now and then forget itself for a moment, and become waspish; but would recollect and recover its temper the next sentence.

I replied to Trottman—'It is true that, when two men dispute, it generally happens they are both in the wrong. But one is always more in the wrong than the other; and it should be the business of lawyers to examine, and of the law to decide upon, their different degrees of error.'

'What, sir!' exclaimed Stradling. 'If you were counsel in a cause for plaintiff A, instead of exposing the blunders and wrongs of defendant B, would you enquire into those of your own client?'

'I would enquire impartially into both.'

'And if you knew any circumstance which would infallibly insure plaintiff a nonsuit, you would declare it to the Court?'

'I would declare the truth, and the whole truth.'

'Here's doctrine! Here's law!'

'No,' said Trottman; 'it is not law. It is reform.'

'It ought to be law. As an advocate, I am a man who hire out my knowledge and talents for the avowed purpose of doing justice; and am to consider neither plaintiff nor defendant, but justice only. Otherwise, I should certainly be the vilest of rascals!'

'Heyday!' thundered Stradling: and, after a pause, added—'It is my opinion, those words are liable to a prosecution, Mr. Trevor; and, by G——, if you were to be cast in any one of our Courts for them, it would be no fault either of the bench or the bar if the sentence of the law, which you are defaming, did not shut you up for life!'

'My friend Trevor mistakes the nature of the profession he is studying,' added Trottman. 'He forgets that the question before a Court is not, what is this, that, or the other; which he may think proper to call justice; but, what is the law?'

'To be sure, sir;' continued Stradling. 'It is that which, as a lawyer, you must attend to; and that only.'

'I will cite you an example,' said Trottman.

'A was a gentleman of great landed property. B was an impertinent beggarly kind of sturdy fellow, his neighbour. A had an estate in the county of —— that lay in a ring-fence: a meadow of nine acres excepted, which belonged to B. This meadow it was convenient for A to purchase; and he sent his steward, who was an attorney, to make proposals. B rejected them. The steward advised A to buy the estate that belonged to C, but that was farmed by B. The advice was followed. The lease of B expired the following year; and a new one was denied by A, unless B would sell his meadow. B consented. A bought the meadow, but determined to have his revenge. For this purpose A refused payment, and provoked B to commence an action. The law he knew very well was on the side of B: but that was of little consequence. Plaintiff B brought his action in Trinity Term. Defendant A pleaded a sham plea: asserted plaintiff had been paid for his meadow, by a firkin of butter: [All a lie, you know.] long vacation was thus got over, and next term defendant files a bill in Chancery, to stay proceedings at law. Plaintiff B files his answer, and gets the injunction dissolved: but A had his writ ready and became plaintiff in error, carried it through all the Courts: from K.B. to the Exchequer-chamber; and from the Exchequer-chamber, as A very well knew that B had no more money, A brought error into Parliament; by which B was obliged to drop proceedings. His attorney, of course, would not stir a step further; and the fool was ruined. He was afterward arrested by his attorney for payment of bill in arrear; and he now lies in prison, on the debtors'-side of Newgate.'

'How you stare, Mr. Trevor!' added Stradling. 'Every word true. We all know a great lord who has carried I cannot tell how many such causes.'

'And were the judges,' said I, 'acquainted with the whole of these proceedings?'

'How could they be ignorant of them? Judgment had passed against defendant A in all the Courts.'

'And did they afford the plaintiff no protection?'

'They protect! Why, Mr. Trevor, you imagine yourself in Turkey, telling your tale to a Cady, who decides according to his notions of right and wrong; and not pleading in the presence of a bench of English judges, who have twice ten thousand volumes to consult as their guides which leave them no opinion of their own. It is their duty to pronounce sentence as the statute-books direct: or, as in the case I have cited, according to precedent, time immemorial.'

'And this is what you call law?'

'Ay! and sound law too.'

'Why then, damn the—'

'You do right to stop short, sir.'

'It appears to me that I am travelling in a cursed dirty as well as thorny road,' said I, with a sigh.

'Why, to own the truth,' added Trottman, 'you must meet with a little splashing: and, unless you can turn back and look at it with unconcern, I should scarcely advise you to proceed.'

'I shall certainly reconsider the subject!'

'A pair of lawyers, like a pair of legs, are apt to bespatter each other: but they nevertheless remain good friends and brothers. If you send your spaniel into a muddy pool, you ought to take care, when he comes out, that he does not shake the filth he has collected over his master.'

'I wonder, sir, that you should continue one of a profession which you treat with such unsparing severity.'

'And I, sir, do not wonder at your wonderings. Life is a long road; and he must have travelled a very little way indeed who expects that it should be all a bowling-green. Pursue your route in which direction you will, law, trade, physic, or divinity, and prove to me that you will never have occasion to shake off the dust from your feet in testimony against it, and I will then pause and consider. You are of the sect of the Perfectibles.'

'And you of the cast of the Stand-stills.'

'Oh no. I conceive myself to be among children at a fair, riding in a round-about. Like the globe they inhabit, men are continually in motion: but they can never pass their circle.'

'And do you suppose you know the limits of your circle?'

'Within a trifle. The experience of states, empires, and ages has decided that question with tolerable accuracy.'

'But, what if a power should have arisen, of which you have not had the experience of states, empires and ages; except of a very small number? And what if this partial experience, as far as it goes, should entirely overthrow your hypothesis?'

'I know that, in argument, your if is a very renowned potentate. If the moon should happen to be a cheese, it may some time or another chance to fall about our ears in a shower of maggots. But what is this mighty power, that has done so much in so short a time; and from which you expect so many more miracles?'

'It is the art of printing. When knowledge was locked up in Egyptian temples, or secreted by Indian Bramins for their own selfish traffic, it was indeed difficult to increase this imaginary circle of yours: but no sooner was it diffused among mankind, by the discovery of the alphabet, than, in a short period, it was succeeded by the wonders of Greece and Rome. And now, that its circulation is facilitated in so incalculable a degree, who shall be daring enough to assert his puny standard is the measure of all possible futurity? I am amazed, sir, that a man of your acuteness, your readiness of wit, and your strength of imagination, can persist in such an affirmative!'

'The argumentum ad hominem. Very sweet and delectable. Thank you, sir.'

'Every thing is subject to change: why not therefore to improvement? That change is inevitable there are proofs look where you will: that which is called innovation must consequently be indispensible. Examine the history of your own science. When England was infested with wolves, we are told that King Edgar imposed an annual tribute of thirty wolves' heads on the Welsh Princes; that the breed might be extirpated. Had this tribute been levied, after the race was partly destroyed, the law would have counteracted its own intention: for, in order to pay the tax, the tributary Princes must have encouraged the breed; and once more have stocked the country with wolves.'

Stradling was little better than infected with what have been lately stigmatised by the appellation of Jacobinical principles, and exclaimed, with great exultation—'Your remark is very true, sir; and it is an example that will serve admirably well to illustrate another point. Placemen and pensioners, a race more ravenous and infinitely more destructive than wolves, have been propagated for the support of the Executive Government; and the breed increases so rapidly that it will very soon devour its feeders.'

'And next itself.'

'With all my heart! Let me but see that vermin extirpated, and I shall die in peace!'

'Very right, Mr. Stradling;' said Trottman, with great gravity. 'Placemen, and pensioners are vile vermin! And so will remain, till your party comes into office.'

'If ever I could be brought to accept of place, or pension, may I—!'

'I believe you: for I am well persuaded your virtue will never be put to the trial. Otherwise, I should imagine, it would find as many good arguments, I mean precedents, in favour of the regular practice in politics as in law.'

Here our dialogue paused. Dinner was announced, and law, politics, and patriotism were for a while forgotten, by all except myself, in the enjoyments of venison and old port.