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.’