Henry T. Tuckerman

‘To vindicate the majesty of the law.’—Judge’s Charge.

‘Why may not this be a lawyer’s skull? Why does he suffer this rude knave to knock him about the sconce with a dirty shovel, and will not tell him of his action for battery?’—Hamlet.

The miniature effigy of a town-crier, with a little placard on his bell, inscribed ‘Lost—a Lawyer’s conscience!’ was a favourite toy for children not many years ago; and about the same time a song was in vogue, warbled by a whole generation of young misses, ‘all about the L-A-W,’ in which that venerable profession was made the subject of a warning chant, whose dolorous refrain, doubtless, yet lingers in many an ear. Thus early is law associated with uncertainty and shamelessness; Messrs. Roe and Doe become the most dreaded of apocryphal characters; red-tape the clew of an endless labyrinth; Justice Shallow, with all his imbecility, a dangerous personage; and human beings, even a friend, transformed by the mysterious perspective of this anomalous element to a ‘party.’ The most popular of modern novelists have found these associations sufficiently universal to yield good material in ‘dead suitors broken, heart and soul, on the wheel of chancery;’ and Flite, Gridley, and Rick, are fresh and permanent scarecrows in the harvest-field of the law.

From the Mosaic code, enrolled on tables of stone, to the convention which inaugurated that of the modern conqueror of Europe, law has been a field for the noblest triumphs and most gross perversions of the human intellect. No profession offers such extremes of glory and shame. From the most wretched sophistry to the grandest inference, from a quibble to a principle, from the august minister of justice to the low pettifogger, how great the distance; yet all are included within a common pale.

In every social circle and family group there is an oracle—some individual whose age, wit, or force of character, gives an intellectual ascendency,—and there are always Bunsbys, to ‘give an opinion’ among the ignorant, to which the others spontaneously defer; and thus instinctively arises the lawgiver, sometimes ruling with the rude dogmatism of Dr. Johnson, and at others, through the humorous good sense of Sydney Smith, or the endearing tact of Madame Recamier. These authorities, in the sphere of opinion and companionship, indicate how natural to human society is a recognized head, whence emanates that controlling influence to which we give the name of law. Like every other element of life, this loses somewhat of its native beauty, when organized and made professional. To every vocation there belong master-spirits who have established precedents, and there are natural lawgivers; as in art, Michael Angelo and Raphael; in oratory, Demosthenes; in philosophy, Bacon. The endowments of each not only justify, but originate their authority; they interpret truth through their superior insight and wisdom in their respective departments of action and of thought; but of the vast number who undertake to illustrate, maintain, or apply the laws which govern states, a small minority are gifted for the task, or aspire to its higher functions; hence the proverbial abuse of the profession, its few glorious ornaments, and its herd of perverted slaves.

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.’

The Conveyancer, Writer to the Signet, Attorney, Barrister, and other 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:—

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.’

Whoever, in the freshness of youthful emotions, has been present at the tribunal of a free country, where the character of the judge, the integrity of the jury, and the learning and eloquence of the advocates have equalled the moral exigencies and the ideal dignity of the scene, and when the case has possessed a high tragic or social interest, can never lose the impression thus derived of the majesty of the law. No public scene of human life can surpass it to the apprehension of a thoughtful spectator. He seems to behold the principle of justice as it exists in the very elements of humanity, and to stand on the primeval foundation of civil society; the searching struggle for truth, the conscientious application of law to evidence, the stern recital of the prosecutor, the appeal of the defence, the constant test of inquiry, of reference to statutes and precedents, the luminous arrangement of conflicting facts by the judge, his impartial deductions and clear final statement, the interval of suspense and the solemn verdict, combine to present a calm, reflective, almost sublime exercise of the intellect and moral sentiments, in order to conform authority to their highest dictates, which elevates and widens the function and the glory of human life and duty. Compare with such a picture the base mockery of justice exhibited by the Inquisition of old, and an Austrian court-martial of our own day; the arbitrary fiat of an Eastern official, and the murderous ordeal of the provisional bodies that ruled during the first French revolution; and it is easy to appreciate the identity of justly-administered law with civilization and freedom. ‘Justice,’ says Webster, ‘is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and as long as it is duly honoured, there is a foundation for social security, general happiness, and the improvement and progress of our race; and whoever labours on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself—in name, and fame, and character—with that which is, and must be, as durable as the frame of human society.’