The trial of Aaron Burr elicited the most characteristic eloquence of Clay and Wirt; that of Knapp, the tragic force of statement in which Webster excelled. Emmet’s address to his judges has become a charter to his countrymen. Patrick Henry’s remarkable powers of argument and appeal, which fanned the embers of Revolutionary zeal into a flame, originally exhibited themselves in a Virginia courthouse. And if eloquence has been justly described as existing ‘in the man, in the subject, and in the occasion,’ we can easily imagine why the legal profession affords it such frequent and extensive scope.
The intellectual process by which the advocate seeks his ends is observable in the best conversation and writing. Almost all good talkers are essentially pleaders; they espouse, defend, illustrate, or maintain a question. Many of Lord Jeffrey’s reviews are little else but special pleadings, and Macaulay’s most brilliant articles are digests executed with taste and eloquence; the subject is first thoroughly explored, then its presentation systematized, and afterwards stated, argued, and summed up, after the manner of a charge or plea, with the addition of rhetorical graces inadmissible in a legal case. There is nothing, therefore, in the peculiar exercise of the faculties which renders law a profession apt to pervert second-rate minds; the evil lies in the predetermined side, the logic aforethought—if we may so say,—the interested choice and dogmatical assumption of a certain view undertaken ‘for a consideration.’ ‘I know some barristers,’ observes Thackeray, ‘who mistake you and I for jury-boxes when they address us; but these are not your modest barristers, not your true gentlemen.’
The special pleading and judicial complacency of Jeffrey—in other words his lawyer’s mind—prevented his recognition of the highest and best poetical merit. It has been said of the conversation of his circle at Edinburgh, that it was, ‘in a very great measure, made up of brilliant disquisition, of sharp word-catching, ingenious thinking, and parrying of dialectics, and all the quips and quiddities of bar-pleading. It was the talk of a society to which lawyers and lecturers had, for at least a hundred years, given the tone.’[22]
When from the advocate we pass to the bench, and from the feed barrister to the philosophical jurist, a new and majestic vista opens to the view. As in literature, two great divisions mark the legal character: there is the narrow but thoroughly-informed practitioner, and the comprehensive judicial mind,—the first only distinguished within a limited bound of immediate utility and respectable adherence to precedent, and the other a pioneer in the realm of truth, a brave and original minister at the altar of justice. Lord Brougham, in his Sketches of English Statesmen, has admirably indicated these two classes. To the former he says, ‘The precise dictates of English statutes, and the dictates of English judges and English text-writers, are the standard of justice. They are extremely suspicious of any enlarged or general views upon so serious a subject as law.’ The second and higher order of lawyers are well described in his portrait of Lord Grant, of whose charges he remarks: ‘Forth came a strain of clear, unbroken fluency, disposing in the most luminous order all the facts and all the arguments in the cause; reducing into clear and simple arrangement the most entangled masses of broken, conflicting statement; settling one doubt by a parenthetical remark, passing over another only more decisive that it was condensed; and giving out the whole impression of the case upon the judge’s mind,—the material view, with argument enough to show why he so thought, and to prove him right, and without so much reasoning as to make you forget that it was a judgment you were hearing, and not a speech.’ Do we not often find, in literature and in life, counterparts of this picture of a judicial mind? Add to it discovery, and we have the legal philosopher; intrepid love of right, and we recognize the legal reformer. To this noble category belong such lawyers as Mansfield and Marshall, Romilly, Erskine, and Webster. Genius for the bar is as varied in its character as that for poetry or art. In one man the gift is acuteness, in another felicity of language; here, extraordinary perspicuity of statement; there, singular ingenuity of argument. It is rhetoric, manner, force of purpose, a glamour that subdues, or a charm that wins; so that no precise rules, irrespective of individual endowments, can be laid down to secure forensic triumph. Doubtless, however, the union of a sympathetic temperament and an attractive manner, with logical power and native eloquence, form the ideal equipment of the pleader. Erskine seems to have combined these qualities in perfection, and to have woven a spell both for soul and sense. He magnetized, physically and intellectually, his audience. ‘Juries,’ says his biographer, ‘declared that they felt it impossible to remove their looks from him when he had riveted, and, as it were, fascinated them by his first glance; and it used to be a common remark of men who observed his motions, that they resembled those of a blood-horse.’
The tendency to subterfuge in the less highly endowed, is but an incidental liability; in general, law-practice seems to harden and make sceptical the mind absorbed in its details. One can almost invariably detect the keen look of distrust or the smile of incredulity in the physiognomy of the barrister. Everything like sentiment, disinterestedness, and frank demonstration, is apt to be regarded without faith or sympathy. Most lawyers confess that they place no reliance on the statements of their clients. If you introduce a spiritual hypothesis or a practical view of any topic, it is treated by this class of men with ill-concealed scorn. The habit of their minds is logical; they usually ignore and repudiate those instincts which experience seldom reveals to them, and observation of life in its coarser phases leads them to doubt and contemn. But, while thus less open to the gentler and more sacred sympathies, they often possess the distinction of manliness, of courage, and generosity. The very process which so exclusively develops the understanding, and makes their ideal of intellectual greatness to consist in aptitude, subtlety, and reasoning power, tends to give a certain vigour and alertness to the thinking faculty, and to emancipate it from morbid influences. One of Ben Jonson’s characters thus defines the lawyer:—
‘I oft have heard him say how he admired
Men of your law-profession, that could speak
To every cause and things mere contraries,
Till they were hoarse again, yet all be law.
That, with most quick agility, could turn
And return, make knots and undo them,
Give forked counsel, take provoking gold
On either hand,—and put it up.’
And one of Balzac’s characters says:—‘Savez-vous, mon cher, qu’il existe dans notre société trois hommes: le prêtre, le médecin, et l’homme de justice, qui ne peuvent pas estimer le monde? Ils ont des robes noires, peut-être parce qu’ils portent le deuil de toutes les vertus, de toutes les illusions. Le plus malheureux des trois est l’avoué.’ When the question at issue is purely utilitarian, and the interest discussed one of outward and practical relations, this legal training comes into eminent efficiency: in a word, it is applicable to affairs, but not to sentiment; to fact, but not to abstract truth. How evanescent is often a great lawyer’s fame; often as intangible as that of a great vocalist or actor. Even their eloquence is now rare. Great lawyers are uniformly distrustful of rhetoric, and their power is based on knowledge. We learn from the son and biographer of Chief Justice Parsons, that a special reason of his eminent superiority was that accident gave him early and undisturbed access to the best law library in America. It has been truly said, that the eloquence of the bar has become a tradition; ‘it is suspected as impugning sense and knowledge,’ and is opposed to the practical spirit of the age. Yet the advocate, like the poet, is occasionally born, not made, notwithstanding the maxim orator fit. A mind fertile in expedients, warmed by a temperament which instinctively seizes upon, and, we had almost said, incarnates, a cause, is a phenomenon that sometimes renders law an inspiration instead of a dogma. Such a pleader lately lived in one of the Eastern States. Not only the grasp of his thought, but his elocution, announced that he had literally thrown himself into the case. It would be more strictly correct to say that he had absorbed it. The gesture, the eye, the tone of his voice, the quiver of the muscle, nay, each lock of his long steel-gray hair, that he tossed back from his dripping brow, in the excitement of his fluent harangue, seemed alive and overflowing with the rationale and the sentiment of the cause; his enthusiasm was real, however it may have originated; and, by identifying himself with his client, he espoused the argument as if it were vital to his own interest. Such instances, however, are exceptional; few are the lawyers thus constituted. Accepting their cases objectively, and maintaining them by formula, the usual effect is that which Burke describes in his character of Greville: ‘He was bred to the law, which is, in my opinion, one of the first and noblest of human sciences—a science which does more to quicken and invigorate the understanding than all other kinds of learning put together; but it is not apt, except in persons very happily born, to open and liberalize the mind exactly in the same proportion.’
Why is the poet’s function the noblest? Because it is inspired, not arbitrarily decreed by the will. Mental activity is grand and beautiful in proportion as it is disinterested; and it is on account of the almost inevitable forcing, by circumstances, of a lawyer’s mind from the line of honest conviction into that of determined casuistry, that the moral objection to the pursuit is so often urged. ‘The indiscriminate defence of right and wrong,’ says Junius, ‘contracts the understanding while it corrupts the heart.’ Some men, in conversation, affect us as unreal. We attach no vital interest to what they say, because the mind appears to act wholly apart—the fusion of sense and feeling, which we call soul, is wanting; there is no conviction, no personal sentiment, no unselfish love of truth in what they say; and yet it may be intelligent, erudite, and void of positive falsity—still it is mechanical; the intellect is used, not inspired; willed to act, not moved thereto: this is the characteristic of legal training, unmodified by the higher sentiments; it makes intellectual machines, logical grist-mills, talkers by rote; the rational powers, from long slavery to temporary and interested aims, seem to have lost magnanimity; their spontaneous, genuine, and earnest action has yielded to a conventional and predetermined habit. Yet at the other extreme we see the most lofty and permanent intellectual results. It has been justly said that the Code Napoleon is even now the sole embodiment of Lord Bacon’s thought—‘put them (the laws) into shape, inform them with philosophy, reduce them in bulk, give them into every man’s hand. Laws are made to guard the rights of the people, not to feed the lawyers.’
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.’
