"Such is a faint sketch of the existing system of special pleading, upon the reform and remodelling of which has been bestowed, during the last fifteen years, the anxious and profound consideration of some of the ablest and most experienced legal intellects which were ever addressed to such an undertaking, or concerned in the practice or administration of the law. Their alterations were bold and extensive, and perhaps may be said to have been, to the same extent, successful. The principal objects proposed to be effected by the late changes were enumerated in an early part of this work, where also was given a general account of all the late changes effected in the department of Common Law pleading and practice. To this we now refer the reader; and also to the Appendix (No. IV.), where will be found, in extenso, the Rules of Court by which these great alterations were effected. While the principal objects of the framers of them have been accomplished, by effecting a great saving of expense in the length of the pleadings, and their incidents; by securing an economical and satisfactory trial at Nisi Prius, through the precise and specific nature of the issues required to be presented to the jury, and the effectual expedients resorted to, for the purpose of saving an unnecessary expenditure in obtaining evidence: it cannot be denied that the excessive stringency of the rules which restrict a plaintiff to a single count in respect of a single cause of action, and a defendant to a single plea in support of a single ground of defence, too frequently operates most injuriously, so as to secure the defeat of justice. It is continually a matter of serious difficulty, to refer a particular combination of facts to their appropriate legal category; and if the wrong one should be selected, substantial justice is sacrificed before arbitrary legal technicality. It would be easy to illustrate the truth of these remarks by reference to cases of daily occurrence. The rule in question must either be relaxed, or its injurious effects neutralized by greatly enlarged powers of amendment conferred upon the judge at Nisi Prius. With all these defects, however, it cannot be denied that the recent changes in the law of pleading, evidence, and practice, with reference to the interests of suitors, have justified the most sanguine anticipations of those who set in motion the machinery which effected those changes; and with reference to students and practitioners, have tended to exact a far greater amount of diligence, learning, and acuteness, than for a long series of years has been deemed requisite."
Mr Warren's illustrations, whether imaginary, or drawn from experience and observation, are always, as might be expected, graphic and amusing. It is thus that he exemplifies a very useful precept, which he gives to the young student for the bar:—
"He must very early familiarise himself with the correct meaning of at least the leading technical terms of Logic—which are of frequent use in the courts—not for petty pedantry or display, but from their real advantage—from, indeed, the necessity of the case. Instances of the vexatious consequences of ignorance in these matters will not unfrequently fall under the notice of a watchful observer. Some two or three years ago, a counsel, manifestly not having enjoyed a very superior education, was engaged in arguing a case, in banco, at Westminster—before four very able judges, one of them being a man remarkable for his logical acuteness and dexterity. 'No, no—that won't do,' said he, suddenly interposing—'put the converse of the proposition, Mr ——: try it that way.' The judge paused: the counsel too paused, while a slight expression of uneasiness flitted over his features. He expected the judge to 'put the converse' for him; but the judge did not. 'Put the converse of the proposition, Mr ——, and see if that will hold'—repeated the judge with some surprise, and a little peremptoriness in his tone. But it was unpleasantly obvious that Mr —— could not 'put the converse' of the proposition—nor understand what as meant. Some better informed brother barrister whispered to him the converse of the proposition—but it was useless: Mr —— faltered—repeated a word or two, as if mechanically—'Well!' said the judge, kindly suspecting the true state of the case, 'go on with your argument, Mr ——!' It may appear strange that so glaring a case should occur at the bar—but, nevertheless, such a case did occur, and such cases have occurred, and are likely to occur again, as long as persons of inferior education come, intrepid in ignorance, to the bar."
We think, however, that Mr Warren is a little too hard upon the unfortunate orator, who was not aware of the meaning of the "converse of the proposition," and that the judge might as well have "put it" himself. A man may be a very good reasoner who has not learned "to name his tools," which is all that is taught by the logic of Aristotle.
How evidently is the following invested with all the vivid colouring of actual observation:—
"It can hardly be necessary, after all that has been said upon the subject of special pleading, both in this chapter and in preceding parts of the work, to warn the youth who rashly rushes to the bar without a competent knowledge of pleading, of the folly of which he is guilty, and the danger to which he is exposing himself. To a young counsel ignorant of pleading, a brief will be little else than a sort of Chinese puzzle. He must either give up in despair all attempts at mastering its contents, or hurry in ridiculous agitation from friend to friend, making vain efforts to 'cram' himself for some occasion of solitary display, afforded him by the zealous indiscretion of a friendly solicitor. Feverish with anxiety, wretched under the apprehension of public failure, and the consciousness of incompetence, after trembling in court lest he should be called upon to show himself, he returns to chambers, to curse his folly—to make, when too late, exertions to retrieve his false position, or abandon it for ever, with all the cloud-picturings of a vain and puerile ambition."
There is a general reluctance to believe in the union of literary talents and business-like qualities of mind. They are thought incompatible. A lover of literature is held to have little chance of success. A prejudice so general must have some foundation; but the incompatibility, in whatever degree it exists, lies, we are persuaded, not in the several mental qualities—not in the intellectual apparatus fitted for the two careers of literature and a profession—but in the different dispositions, in the diversity of tastes, which the two pursuits engender. The literary man fails in no faculty that profession calls for, but he may contract a strong repugnance for the species of activity it demands.
In literature thought is indulged and solicited for its own sake; it excites or it amuses; it may be invested with the deepest and most stirring interests of religion and philosophy, or it may be the very rainbow of the mind, having no life but only in and for its beauty. In professional vocations the intellectual effort is subordinated to a definite and fixed purpose; it is the purpose, not the thought, which must continually animate our exertions; and the purpose binds down the current of thought rigidly to its own service. Literature is the luxury of the spirit, the free aristocratic life of intellectual pleasure; profession is the useful but fettered existence of the sons of toil. In the one, the spirit revels as a mountain stream that leaps in the face of heaven from crag to crag; in the other, it is the same stream, lower down, confined in narrow channel, and half-buried by the ponderous wheel-work of that ever-clacking mill which it has to turn.
What wonder, then, that the literary man should have certain disgusts to overcome when he is called on to forsake his own free and variable life, for a mode of existence where thought is no longer her own mistress, but, with constant repetition, must take service in the mechanism of society? And he does often recalcitrate. But when, owing to some overruling motive of ambition or necessity, this distaste is overcome, it is an immense advantage which the possessor of literary talents has over the ordinary practitioner of any profession. In that of the law it has been especially remarked, that those who have been most eminently successful have confessed to the repugnance they had, in the first instance, to conquer; and such examples of eminent success have, for the most part, consisted of men who had betrayed a decided talent and aptitude for literature.
The writer whom we have before us is a striking instance of literary tastes being irresistibly borne down by the craving after active life, and, perhaps, a strong impulse of ambition. The present work is sufficient to testify that, however vivid his imagination, his patience is still greater. We know him to be one of those who abhor rest, who court fatigue, to whom the utmost drudgery becomes welcome when invested with the interest of an immediate practical purpose. To one of such a stamp, literature could only prove a sort of apprenticeship to cultivate and develope his mind, not to determine his career. And so it has been. It was in vain that nature placed the pencil in his hand; she could not win him to the repose of the artist; his spirit was already pledged to a life of action, of toil, of hope, of enterprise. All along he has chosen the path of forensic ambition, nor, when most exerting his fancy, has he ever swerved from the goal. May success await him in his laborious course! May he be landed high and dry upon the envied eminences of social life! But—by Jupiter!—if nature had given us the pencil of the artist, we would not have let go our hold, though the seals of office were ten times as large and ten times as brilliant as they are, and were dangled before us within arm's-reach. You might have lifted us softly and gently, and placed us as with a mother's arms, even upon the broad woolsack, we would not have dropped that pencil. No; we would have said to the boisterous prosperities of life—Here is that which will make station indifferent; if to food and raiment men must needs add the charms of variety, here is that which will gild even obscurity with an assured and tranquil pride!