‘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!’
‘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 insigniaof 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’sCommentarieshave 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 mostscandalous 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 andhabeas corpusare 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’stwo 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 theprestigeof 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 crowdedwith 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 floweredrobe 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 theLives of the English Chancellorsrefers 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 asa 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 isarraigned, 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 aboutthe 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 hasusually 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 aFarewell to the Muse; Marshall and Story wooed the Nine, in their youth; Talfourd deemed it requisite to declare, in the preface toIon, 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 theCampaign. 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 onWhat 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, theHeart of Mid-Lothian,Ten Thousand a Year, andBleak 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 ofliterary 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 distinctionand 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 poorishnisi priuslawyer, 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 rhetoricalgraces 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 hisSketches 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 extremelysuspicious 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, fascinatedthem 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 admiredMen of your law-profession, that could speakTo every cause and things mere contraries,Till they were hoarse again, yet all be law.That, with most quick agility, could turnAnd return, make knots and undo them,Give forked counsel, take provoking goldOn either hand,—and put it up.’
‘I oft have heard him say how he admiredMen of your law-profession, that could speakTo every cause and things mere contraries,Till they were hoarse again, yet all be law.That, with most quick agility, could turnAnd return, make knots and undo them,Give forked counsel, take provoking goldOn 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: leprêtre, 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 maximorator 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, heespoused 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 isused, notinspired; 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 theCode 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.’
‘The hills,Rock-ribbed and ancient as the sun; the vales,Stretching in pensive quietness between;The venerable woods; rivers that moveIn majesty, and the complaining brooksThat make the meadow green; and, poured round all,Old ocean’s gray and melancholy waste,Are but the solemn decorations allOf the great tomb of man.’—Bryant.
‘The hills,Rock-ribbed and ancient as the sun; the vales,Stretching in pensive quietness between;The venerable woods; rivers that moveIn majesty, and the complaining brooksThat make the meadow green; and, poured round all,Old ocean’s gray and melancholy waste,Are but the solemn decorations allOf the great tomb of man.’—Bryant.
Thecomparatively recent and widely-diffused interest in the establishment of rural cemeteries in this country is an auspicious reaction of popular feeling. Never did a Christian nation manifest so little conservative and exalted sentiment, apart from its direct religious scope, as our own. This patent defect is owing, in a measure, to the absence of the venerable, the time-hallowed, and the contemplative in the scenes and the life of our country; it is, however, confirmed by the busy competition, the hurried, experimental, and ambitious spirit of the people. Local change is the rule, not the exception; scorn of wise delay, moderation, and philosophic content, the prevalent feeling; impatience, temerity, and self-confidence, the characteristic impulse; houses are locomotive, church edifices turned into post-offices, and even theatres; ancestral domains are bartered away in the second generation; old trees bow to the axe; the very sea is encroached upon, and landmarks areremoved almost as soon as they grow familiar; change, which is the life of Nature, seems to be regarded as not less the vital element of what is called local improvement and prosperity; the future is almost exclusively regarded, and the past contemned.
If a man cites the precedents of experience, he is sneered at as a ‘fogy;’ if he has a competence, he risks it in speculation; newspapers usurp the attention once given to standard lore; the picturesque rocks of the rural wayside are defiled by quack advertisements, the arcana of spirituality degraded by legerdemain, the dignity of reputation sullied by partisan brutality, the graces of social refinement abrogated by a mercenary standard, the lofty aims of science levelled by charlatan tricks, and independence of character sacrificed to debasing conformity; observation is lost in locomotion, thought in action, ideality in materialism. Against this perversion of life the sanctity of death protests, often vainly to the general mind, but not ineffectually to the individual heart.
When it was attempted to secure the collection of Egyptian antiquities brought hither by Dr. Abbott, of Cairo, for a future scientific museum to be established in New York, the representatives—commercial, professional, and speculative—of ‘Young America’ scorned the bare idea of exchanging gold for mummies, sepulchral lamps, papyrus, and ancient utensils and inscriptions; yet, within a twelvemonth, a celebrated German philologist, a native biblical scholar, and a lecturer on the History of Art, eagerly availed themselves of these contemned relics to prove and illustrate their respective subjects; and the enlightened of Gotham’s utilitarian citizens acknowledged that the trophies of the past were essential to elucidate and confirm the wisdom of the present. It is this idolatry of the immediate which stultifies republican perception. Offer a manuscript to a publisher, and he instantly inquires if it relates to the questions of the day; if not, it is almost certain tobe rejected without examination. The conservative element of social life is merged in gregarious intercourse; the youth looks not up to age; the maiden’s susceptibilities are hardened by premature and promiscuous association; external success is glorified, private consistency unhonoured; art becomes a trade, literature an expedient, reform fanaticism; aspiration is chilled, romance outgrown, life unappreciated; and all because the vista of departed time is cut off from our theory of moral perspective, and existence itself is regarded merely as an opportunity for instant and outward success, not a link in an eternal chain reaching ‘before and after.’
Sentiment is the great conservative principle of society; those instincts of patriotism, local attachment, family affection, human sympathy, reverence for truth, age, valour, and wisdom, so often alive and conscious in the child, and overlaid or perverted in the man,—for the culture of which our educational systems, habitual vocations, domestic and social life, make so little provision,—are, in the last analysis, the elements of whatever is noble, efficient, and individual in character; in every moral crisis we appeal to them, as the channels whereby we are linked to God and humanity, and through which alone we can realize just views or lawful action. In our normal condition they may not be often exhibited; yet none the less they constitute the latent force of civil society. To depend upon intelligence and will is, indeed, the creed of the age, and especially of this Republic; but these powers, when unhallowed by the primal and better instincts, react and fail of their end. It is so in individual experience and in national affairs. The absence of the sentiments which the pride of intellect and the brutality of self-will thus repudiate, is the occasion of our greatest errors; to them is the final appeal, through them the only safety; and their violation was the precursor of base and bloody treason; their vindication but the renewal through sacrifice of a normal and vital interest of human society. The warfor the Union has been expiatory not less than patriotic. And the great lesson taught by these and similar errors is, that the life, the spirit, the faith of the country had, by a long course of national prosperity and a blind worship of outward success, become gradually but inevitably material; so that motives of patriotism, of reverence, of courtesy, of generous sympathy,—in a word, the sentiments, as distinguished from the passions and the will, had ceased to be recognized as legitimate, and the reliable springs of action and guides of life. It was the repudiation of these which horrified Burke at the outbreak of the French Revolution; he augured the worst from that event, at the best hour of its triumph, because it stripped Humanity of her divine attribute of sentiment, and left her to shiver naked in the cold light of reason and will, unredeemed by the sense of justice, of beauty, of compassion, of honourable pride, which under the name of chivalry he lamented as extinct. He spoke and felt as a man whose brain was kindled by his heart, and whose heart retained the pure impulse of these sacred instincts, and knew their value as the medium of all truth and the basis of civil order. They were temporarily quenched in France by the frenzy of want; they are inactive and in abeyance here, through the gross pressure of material prosperity and mercenary ambition. Hence whatever effectively appeals to them, and whoever sincerely recognizes them, whether by example or precept, in a life or a poem, through art or rhetoric, in respect for the past, love of nature, or devotion to truth and beauty, excites our cordial sympathy. In this age and land, no man is a greater benefactor than he who scorns the worldly and narrow philosophy of life which degrades to a material, unaspiring level the tone of mind and the tendency of the affections. If he invent a character, lay out a domain, erect a statue, weave a stanza, write a paragraph, utter a word, or chant a melody which stirs in any breast the love of the beautiful, admiration for the heroic, or the chasteningsense of awe,—any sentiment, in truth, which partakes of disinterestedness, and merges self ‘in an idea dearer than self,’—uplifts, expands, fortifies, intensifies, and therefore inspires,—he is essentially and absolutely a benefactor to society, a genuine though perhaps unrecognized champion of what is ‘highest in man’s nature’ against what is ‘lowest in man’s destiny.’ And not the least because the most universal of these higher and holier feelings is the sentiment of Death, consecrating its symbols, guarding its relics, and keeping fresh and sacred its memories.
The disposition of the mortal remains was, and is, to a considerable extent, in England, an ecclesiastical function; in Catholic lands it is a priestly interest. Indignity to the body, after death, was one of the most dreaded punishments of heresy and crime; to scatter human ashes to the winds, expose the skulls of malefactors in iron gratings over city portals, refuse interment in ground consecrated by the church, and disinter and insult the body of an unpopular ruler, were among the barbarous reprisals of offended power. And yet, in these same twilight eras, in the heathen customs and the mediæval laws, under the sway of Odin and the Franks, the sentiment of respect for the dead was acted upon in a manner to shame the indifference and hardihood of later and more civilized times. With the emigration to America, this sentiment looked for its legal vindication entirely to the civic authority. With their reaction from spiritual tyranny, our ancestors transferred this, with other social interests, to popular legislation and private inclination. Hence the comparatively indefinite enactments on the subject, and the need of a uniform code, applicable to all the States, and organized so as clearly to establish the rights both of the living and the dead, and to preserve inviolable the choice of disposition, and the place of deposit, of human remains.
The practical treatment of this subject is anomalous. Amid the scenes of horror, outraging humanity in everyform, which characterized the anarchy incident to the first dethronement of legitimate authority in France, how startling to read, among the first decrees of the Convention, provisions for the dead, while pitiless destruction awaited the living! And in this country, while motives ofhygiènelimit intermural interments, and a higher impulse sets apart and adorns rural cemeteries, our rail-tracks still often ruthlessly intersect the fields of the dead, and ancestral tombs are annually broken up to make way for streets and warehouses. The tomb of Washington was long dilapidated; the bones of Revolutionary martyrs are neglected, and half the graveyards of the country desecrated by indifference or misuse. The conservative piety of the Hebrews reproaches our inconsiderate neglect, in the faithfully-tended cemetery of their race at Newport, R. I., where not a Jew remains to gather the ashes of his fathers, thus carefully preserved by a testamentary fund. Of late years elaborate monuments in rural cemeteries have done much to redeem this once proverbial neglect. They constitute the most sacred adornment of the environs of our principal cities.
Both the modes and places of burial have an historical significance. The pyre of the Greeks and Romans, the embalming process of the Egyptians, the funeral piles of Hindoo superstition, and those bark stagings, curiously regarded by Mississippi voyagers, where Indian corpses are exposed to the elements,—the old cross-road interment of the suicide, the inhumation of the early patriarchs and Christians,—all symbolize eras and creeds. The lying-in-state of the royal defunct, the sable catafalque of the Catholic temples, the salutes over the warrior’s grave, the ‘Day of the Dead’ celebrated in Southern Europe, the eulogies in French cemeteries, the sublime ritual of the Establishment, and the silent prayer of the Friends,—requiems, processions, emblems, inscriptions, badges, and funereal garlands,—mark faith, nation, rank, and profession at the very gates of the sepulchre. Vain is thesceptic’s sneer, useless the utilitarian’s protest; by these poor tributes the heart utters its undying regret and its immortal prophecies, though ‘mummy has become merchandise,’ and to be ‘but pyramidically extant is a fallacy in duration;’ for, as the same religious philosopher[23]of Norwich declared, ‘it is the heaviest stone that melancholy can throw at a man, to tell him he is at the end of his nature;’ and, therefore, in the grim Tuscan’s Hell, the souls of those who denied their immortality when in the flesh, are shut up through eternity in living tombs. How the idea of a local abode for the mortal remains is hallowed to our nature, is realized in the pathos which closes the noble and sacred life of the Hebrew lawgiver: ‘And he buried him in a valley of the land of Moab, over against Beth-peor; but no man knoweth of his sepulchre unto this day.’[24]Etruria’s best relics are sepulchral urns. Social distinctions are as obvious in the tombs of the ancients as in their palaces: witness the Columbarium in ruins, and the fresh pit of the plebeians; the sandy isles of the Venetian cemetery, and Pompeii’s street of tombs. Byron thought ‘Implora pace’ the most affecting of epitaphs; and the visitor at Coppet recognizes a melancholy appropriateness, in the garden-grave of its gifted mistress.
Natural, therefore, and human, is the consoling thought of the poet, of the ship bringing home for burial all of earth that remains of his lamented friend:—