Graham's Magazine, Vol. XL, No. 3, March 1852

by Various

And what are the consequences? Nations are “perplexed by fear of change.” Better stick to a bad law, than keep changing a good. The clock that stands still (to borrow a happy illustration) is sure to be right twice every twenty-four hours; while that which is always going, may always be wrong.

Let us apply this. We are now waiting and hoping for a change of the tariff: and the more general and confident the expectation of a change among business-men, whatever that change may be—up or down—higher or lower—the more certainly will it put a stop, or greatly embarrass for a time, the whole business of the country. And why? If it be generally believed that the tariff is to be lowered, the dealers everywhere begin to run off their stocks, to offer longer credits and better terms; and however unwilling, shrewd cautious men may be about over-purchasing with such a prospect before them, there will be found others, commercial gamblers, or trading adventurers, who always profit by such occasions to go ahead of their fellows; for what they gain is their own, and what they lose, is their creditors’. And universal overtrading is the consequence here—and stoppages there—till the mischief corrects itself or dies out. Business no longer flows in its accustomed channels. It has fallen into the hands of comparative stock-jobbers and lottery-dealers: and a general bankruptcy often follows.

But suppose the tariff about to be raised—and the belief to be universal. The ultimate consequences are the same, so far as the regular business of the country is concerned. Manufacturers and jobbers hold back; they refuse to sell on six months—they shorten the period of credit—and require acceptances in town—as being, on the whole, better than to demand higher rates in advance of old customers. Purchasers may be eager—but what can they do. They are obliged to wait—and live on from hand to mouth—till the question has been settled. And so with every other great leading law, affecting any great commercial, farming, or manufacturing interest of the country. The legislation of a land is a type of itself. How can our other great institutions be safe and lasting if our legislation be unstable?

That our legislation is unstable and changing and fluctuating, who will deny? What great system of national policy have we ever pursued steadily beyond the terms of two or three of our political chief-magistrates—a paragraph at most, in the long History of the World?

And how should it be otherwise? Lawyers with us are Conveyancers and Notaries and Special-Pleaders: and Conveyancers and Notaries and Special-Pleaders over sea are always, and in our country, almost always paid by the page; and a certain number of words, you know, constitute a page at law. Again—so sure is it that a lawyer shall not only be heard, but paid for his “much speaking,” that I do believe people are often better satisfied to lose a case with a long speech, than to gain it by a short one. This may appear somewhat startling; but let us see if, on the whole, it be not substantially true and no paradox.

A man goes to consult a lawyer—you see how careful I am to distinguish between the two—and states his case. The lawyer hears him patiently through—having already touched the fee—and tells him, without opening a book, or lifting his spectacles, or moving from his chair, that the question lies in a nut-shell; and that if his view of the law should be sustained by the court, of which he cannot be sure, it may be settled easily and at once. Well—the case in due time goes up. The jury are empanneled; a great speech is brewing on the opposite side; you can hear the whiz of preparation in the very breathing of the Adversary; but up rises our friend—by the supposition a very clear-headed, able and honest lawyer—and so states the principle of law upon which he depends, that the court rules in his favor, no speeches are made, and the jury are discharged. And now comes the tug of war. The client begs a moment of the lawyer’s time, and asks what’s to pay: “Fifty dollars.” “Fifty dollars!—why, sir—pulling out his watch—you were not more than—” The lawyer bows, and on turning away with a stately air, as of one who truly respects himself, and will not suffer the dignity of the profession to be trifled with nor tarnished, is stopped by—“I beg your pardon, squire—there’s the money. Good morning.” And off goes the client, who has gained the cause, to complain of the lawyer for extravagance or extortion; saying that “the case was plain as a pike-staff—any body might have managed it—could have done it himself and without help—nothing but a word or two for the court—never opened his mouth to the jury—and then, whew! what do you think he had the conscience to charge? why, fifty dollars!—would you believe it! Very well—much good may the fifty dollars do him; it is the last he’ll ever see of my money, I promise you.”

And now let me suppose that, instead of going to the last mentioned, honest lawyer, he had gone to some other. He is heard, to be sure, but with visible impatience: he is continually interrupted and questioned and cross-questioned, by the half hour. The learned gentleman has a very large snuff-box on the table before him—two or three very large portfolios, and at least a wheelbarrow load of papers tied with red tape. He takes off his spectacles and snuffs, and wipes them with his glove and snuffs, and replaces them and snuffs; now he lifts them and looks under them, and now he lowers them and looks over them steadfast and solemn, though troubled and perplexed, with his mouth screwed up, and making faces at his client all the time: he shakes his head and jumps up, and takes a pinch, and then shakes his head and sits down, and takes another pinch: with a huge pile of authorities before him, and ever so many lying open, and having secured a retainer, at last he tells his client to call on the morrow at 11¼ o’clock precisely. The client, awe-struck at the vastness of that legal erudition he has been favored with a few glimpses of, steals away on tip-toe, rubbing his hands with delight and astonishment, and talking to himself perhaps all the way down stairs and into the street. After three or four consultations the case comes on for trial. The Adversary goes at the jury head-first, with a speech varying from two hours to two days. Of course, it will require from two hours to two days to answer it—and every thing must be answered, you know, whether it has to do with the question or not—as in the passage between Tristram Bulges and John Randolph, about the buzzard, or bald-eagle, I forget which; for after all, there is no great difference between them, as I have heretofore found to my cost; or as in that between Webster and Hayne about poor Banquo’s ghost, in the Senate chamber. And now, having insulted the witnesses, and the court, and the opposite counsel, and tired the jury by an everlasting speech, when they were already more than half asleep; or by arguing questions of law and fact wholly supposititious, for the benefit of his younger brethren and the by-standers—the case goes to the jury, under the charge of the court perhaps, and is lost. But who cares?—not the client; for when told that he has a hundred dollars to pay, instead of fifty as before, he calls it dog-cheap, and insists upon paying more, and why? Because that lawyer had made the case his own—and he goes about saying, “Didn’t he give it to ’em!—bench, bar and jury!—didn’t he acknowledge they were all a set of nincompoops!—and didn’t he lather my adversary and my adversary’s counsel, and all his witnesses, little and big, and especially the women and children, beautifully!—handsomely!—and isn’t he the man, therefore, not only for my money, but for the money of all my acquaintances who may ever want a zealous and faithful lawyer to manage their business for them!”

This, though sufficiently absurd, I acknowledge, is nevertheless true: and happens continually at the bar. I do not say that in terms a client would prefer a long speech to a verdict; I only say that such is the fact, although he may not always know it himself, in many a troublesome case. And so with litigants generally; having once entered the “sacred precincts” of a law-temple, and breathed the fiery atmosphere, and had their names called over in a crowded court-room, and thereby having become famous in their own little neighborhoods, and in the judgment of their friends and witnesses, people of large experience and authority, how are they ever afterward to forego the pleasure? If they win the first throw, of course they can afford to throw again: if they lose, they must throw again, the blockheads! to get back what they have lost, when, like other gamblers, they promise to stop.

Can it be wondered after all this, that words are multiplied in our laws, from sheer habit, as well as from a sort of professional pride, until a mere English reader, however familiar with the spoken language and with the best writers of the language, both at home and abroad, such as Bacon and Bolingbroke and Hooker and Swift, or Edwards, or Channing, or the writers of the Federalist, or Franklin, and half a hundred more I might mention, would be unable to make head or tail of one paragraph in three; and few men of business would be willing to hazard any considerable investment upon his own understanding or interpretation of any passage in any new law.

Talk of the dead languages! The deadest of all the languages I know, or ever heard of, is the language of the law! Ask our friend, the learned blacksmith, and I will abide by the answer. Nobody, not trained to the business of interpretation—as a dragoman—or lawyer, would ever think of trying to understand a new law without help. And even with help—it is a plague and a mystery till the true meaning has been settled—settled!—by adjudication: that is, by others in authority, the priesthood and the patriarchs, who, under the name of judges, are paid for all the thinking, as lawyers are paid for all the talking to no purpose, permitted at law: for, be it known to all whom it may concern, that is, to all the non-lawyers of our land, that no private interpretation of law is of any authority at law: nor is the right of private judgment recognized or allowed or tolerated or endured in courts of justice! You must believe at your peril. You must teach as you are taught; and grow to the opinions or moulds about you as a cucumber grows to a bottle; for such is the law, and with most of the profession, all the law, to say nothing of the Gospel; for that, perhaps, would be out of place here.