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THE LEGAL PROFESSION, ANCIENT AND MODERN.
THE BARS OF GREECE, ROME, FRANCE, ENGLAND, AND THE UNITED STATES.
We think it deeply to be deplored, and of transportation. As ancient as the not less so on public than professional practice of the law for pay,
this prejugrounds, that, in our law-regulated coun dice will remain, most probably, until the try, this important body does not exert multitude become more enlightened poits due weight (or rather, perhaps, an litical economists than many, who dogimperfect kind) of authority; does not matize about that science, are at this day. enjoy its histrionic and its natural consid So too with the charge of abuse, eration.
which is of like antiquity, and exaggerIndeed, there is a certain description ated grossly. That there is, in truth, of our enlightened citizens who have abuse, grievous abuse, we are perhaps progressed to the degree of doubting among the farthest from inclining to even the mere expediency of its appro- deny, and certainly have no design to priate functions, or at most, its necessity defend it. On the contrary, we admit, as a qualified institution.
condemn, detest, denounce it; but we do Others are not prepared to say that a more, and better-we mean to show the special education may be entirely dis- true way of diminishing it indefinitely, if pensed with, but shrewdly surmise the it may not be entirely extirpated. convenience of an exclusive Profession But while the objections themselves to be more than balanced, on the whole, might be left with all impunity to the by the abuses either inseparable from its natural death of such ravings, the remedy nature, or inveterate in its American con- urged in consequence of them is somedition. This objection would seem, no what more formidable, though also (if this less than the former, to demand the be possible) somewhat more absurd. For abolition of the Legal Profession, on the what could well be so absurd, as in a plain principle of Profit and Loss. civilized community to propose setting a These "Reformers, however, would be profession held pre-eminent among those content with throwing it open to unre- distinguished as · learned,” below the stricted exercise—a proposition, for the humblest handicraft, in the essential of rest, coming effectually to the same re- preparatory instruction ? And this, by sult.
way of mending the morals, and elevating A denial of the necessity or the utility the capacity and the character of our Bar ! of the Advocate's occupation would Why it is just the policy of burning scarcely merit, of itself, the respect of down your dwelling to expel the rats ! refutation. It has a source with the Or more exactly still, the preposterousvulgar error respecting the non-produc- ness of abandoning it, stowed with tiveness of the mercantile classes. That Cheshire cheese, to the unmolested octhe lawyers, like the merchants (some- cupancy of these vermin! times), live and thrive, is manifest to Yet experience would hardly permit the five senses ; but the quid pro quo us to rest secure in the absurdity of which they render in return is of a nature the nostrum against its possible adopstill less apprehensible to the common
Besides, it has, in fact, what intelligence, than the accession of value are termed certain elements of poputo material merchandise by the process larity. Does it not assail a privi
* A genius of our reforming Convention was, we have observed, already the first week of the session, in the field with a proposition to this effect. But so many other queer ones have succeeded it in that solemn assembly, that the motion to declare every man a lawyer (even as he is a “democrat”) by right of birth, seems to have been thrown quite in the shade. There is one thing we think the Convention should take into consideration, if they would win the approbation of all that is sensible among their constituents, and (what they value more, no doubt) serve the country as importantly as, possibly, by most of their labors besides : we mean the adoption of the old Locrian Law, to put a halter about the neck of every “Honorable member” who proposes a measure, that he may be prepared, in the event of its failure, for strangulation by the populace. We presume our “practical” neighbor, Horace Greely-detester as he is of excessive law-making, as of excessive love-making would consent to a provisional exception of such a case, from his forthcoming abolition of the “choking” penalty.
leged body, a sort of mental monopoly? that honor, integrity, and capacity may Does its deference to the common capaci- arise from the chaos, by some unimaginty not flatter human, especially demo- able concurrence of ignorance, deprayity, cratic, vanity? What! the sovereign presumption and pettifogging. makers of the law not be amply qualified All this is, as we bave said, but repair--all and each-to understand and apply ing the vessel by killing the worms that it! Then, has it not the appearance of gnaw it, instead of arresting the princivindicating the personal liberty, of choos- ple of putrefaction which gives them ing for advocate or litigatory agent birth and sustenance. The principle of whomever the party may please ? the abuse in the Legal Profession is its These are no vain arguments, the audi- defects. To the defects, accordingly, it tory considered. And when we also is that our idea of professional reform consider that that auditory is ultimate would fain address itself: the abuses, arbiter in the premises, it were an unwise &c., will soon dry up when the sources disdain to refuse the respect to purblind are turned off. But to determine what power of a discussion which is due alone, are these defects, and especially, to exindeed, legitimately to reason.
hibit them intelligibly, we must preWe have intimated that the pretended viously fix a standard of professional exremedy in question-of unqualified ad- cellence. This will form a main division mission--could only aggravate the evil, of our task. Eschewing all ideal porwould in effect go to organize (so to say) traiture as vague or vain, we shall draw the abuse complained of: for of this this criterion from nature and history; abuse a cardinal cause is precisely the we will endeavor to present a sketch, present facility of access ; and the mis- though rapid, yet as faithful as our chief would of course augment with any scanty records and space may permit, increased accessibility. It follows, by of the profession of the Advocate--in its inverse consequence, that the proper natural origin, its social position, its discourse is to build up, not to break down; tinctive character, and its corporate constithat the path to true reform is the path of tution--such as it hasarisen and developed restriction. Such is also the diciate of itself in those States where it attained reason and the lesson of history, as will the highest degree of perfection, and hereinafter, we trust, satisfaciorily ap- whence not a few of its usages (if too little pear.
of its culture and dignity) have been transThat this direction should have been mitted to our own bar. missed so perversely in the reiterated at In tracing this survey, philosophical tempts to regulate the disorders of our and historical, of the Legal Profession, legal practice is explained not only by our design is not merely to furnish a the inadequacy of intelligence, butchiefly, model by contrast wherewith to set the we think, by the narrowness of the ob. defects of the institution in this country jects of the reformers Their projects, in a strong and steady light: we design, shallow and expedientary-looked no moreover, to signalize, in going along, farther than the suppression of existing the conditions and contrivances whereby, abuses, which they seem to regard as in- especially, that model attained its excelcident to the normal, instead of a distem. lence, and, selecting from those influpered, state of the Profession. In this ences the most suitable to our occasion, view, it was natural, perhaps necessary, to show how the induction should be to seek their remedy in direct, external applied to the exigencies of the proposed application of statutory enactments. professional reform. There could not But now that costly experience has at well, we presume, be a more candid or last convinced them of the futility, if not conclusive submission of ourselves to positive mischief, of all legislative con- that test so mortal to most reformerstrivance to chain down the Proteus of a experience and evidence. lawyer's cupidity and chicanery—what What is the nature of the Legal Procourse do we see them take? Why, the fession? What is the relation of indiusu resort of ignorance in despair; viduals, what the condition of society, they are willing to commit the matter to what the exigence or the economy of afchance. To subdue a few disorders, fairs, in which it takes its rise and reimaginary or real, which have proved tains its establishment? refractory to their quackery, they would The main object of society, of the turn the whole Profession into one wide, state, is to assign and to guaranty the wasting disorder; in hope, apparently, rights of the several members. The
means are laws-whether of custom, in- The paramount magnitude of the interterpretation, or enactment. From the ests that occupy it, the moral integrity multiplicity of the relations to be regulat- by which it is presumed to be ever actued, and the opposition of the interests to ated, the intellectual distinction required be adjusted, these laws or usages will, for its exercise-such are the three even in a very low degree of civilization, columns whereupon the profession of be necessarily as numerous and complicat- the Advocate is (or should be) proudly ed as they must, from the nature of the elevated above every other merely temsubject and case, be abstract and above poral occupation. “ A profession,” (if the ordinary intelligence. For the maxim we might slightly alter Blackstone's that the laws should be known to all who graceful description of the science they are required to obey them, is a mere fic- practice,) “whose occupation consists tion of the law itself. History tells us in distinguishing right from wrong; in it has never been so, and reason, that it laboring to establish the one and to pre. could never be. And supposing them vent, punish or redress the other; which known, there would remain another, and employs in its theory the noblest facul. perhaps the greater difficulty—that of ties of the mind, and exerts in its praceffectively applying them in the assertion tice the cardinal virtues of the heart; a of violated rights. But men will never profession which is universal in its use jeopardize any valuable interests upon and extent, accommodated to each inditheir own management, with the con- vidual, yet comprehending the whole sciousness of this their double deficiency community.” Like its own deep, origin, of knowledge and skill. They will these columns too, repose upon the eterhave recourse to those who may be dis- nal foundation of nature. And hence, tinguished in the society or the tribe there is no rhetoric in the noble and for both or either, and who will be called well-known encomium, by a greater in to supply the incapacity—advocati. far than Blackstone, and one of the Such is the origin of the advocate, the most consummate models of all its virfunction as well as the name, which has tues:*—Un ORDRE aussi ancien que le its foundation, we see, in the nature of majistrature, aussi noble que la virtu, men and the necessity of affairs. And it aussi necessaire que la justice: an order is to secure a reasonable degree of that ancient as society, noble as virtue, necesknowledge and talent that the wisdom of sary as justice. all civilized countries has sanctioned, as This antiquity, this dignity, this imtheir wants had established, an instituted portance, are each attested by History. profession of the Law.
In sketching the history of the AdThe function of the Lawyer, then, vocate, it is proper to premise, that consists in supplying both the legal ig- with this as with all other institunorance and the intellectual inequality tions of natural origination, the thing of his fellow-citizens. It is his say, is older than the title; as objects must with the Pythian Apollo in Ennius have an existence distinct, palpable, - Suarum rerum incerti, quos ego mea
familiar, before men yield to the irksome
necessity of inventing them a special ope ex Incertis certi, compotesque concilii Dimitto, ut ne res temere tractent tur. ing of the Lawyer has borne divers de
It is also to be remarked, that the call. bidas."
nominations, according as it was emHere we also see the eminent dignity ployed upon a particular function or deand importance of the calling. It is con- partment. Moreover, these branches versant about the most valued mundane themselves underwent a succession of interests of men. Implying a confidence transformations with the differences of the most vital and absolute, it pre-sup- social and political circumstances, with poses, of course, the entire range of the development or the decay of municimoral virtues, from the nicest delicacy pal institutions. Farthermore, in the up to the most heroic devotion. It de- employment of new names to denote the mands qualifications of mind, which fresh form of the function, the old, still must always be the rare fruit of no ordi. adhering, were continued in popular nary parts and education both combined. use and confounded, as synonymous, with
* The Chancellor d'Agesseau.
the proper term. The origin, by the lish technical acceptation. In the States way, of most synonyms.
of Greece, as in every other, the former But amid all these diversities of name must have been the earlier in requisition. and modification, we discern two, and Even among the savages, the elders of only two pervading lines of division the tribe (age being the Savage type of in the Profession, which are seen to open wisdom and knowledge) are resorted to with its earliest appearance, and to for the adjudication of personal disputes. deepen and widen as it advances to per- These primitive judges are mere arbiters fection. The one is, between the Know or umpires; who, for want of established ledge of the Laws and the Talent of rules of law or forms of procedure, have Forensic Speaking: the respective vo. to decide from the simple representation taries of these pursuits were termed of the parties themselves. These reexpressively in Roman phrase: Juris- ferees involve the counseling attribution prudents and Advocates-that is, Cham- of the lawyer; which becomes separate ber Counsel and Barristers, in clumsy from the judge only after the community English. This appears to be a some has made some progress in a system of what precarious division ; the talent of laws. Indeed it is remarkable how late orators is accidental, and those who pos. the conjunction may linger; passing sess it may also acquaint themselves sometimes from the province of the thoroughly with the law 3--a result to Judge to that of the Advocate.
A rem. which, in fact, the tendency will be seen nant of it survived throughout the golden to be constant in ancient times in pro- days of the Roman Law. We find portion to the progress of society, and Augustus appointing a council of juriswbich becomes easy, as well as unavoid- consults to direct the judges: and Gaius able, through the simplification (or shal- speaks of this as an institution always lowness ?) of our modern educational in being; which evinces the immemorial, system. The other division is liable to no the natural, origin we have assigned it. such exception: It lies between the class of this description of Judges were the of Lawyers who expound and apply the Wise Men of the Hebrews. Hence they Laws whether by Consultation, or by are superficially supposed to have disPleading oral or written, on the one pensed with professed lawyers, and we hand, and on the other, those who con are sometimes exhorted to follow in this, fine their ministry to the rules and forms as in other things, their edifying and enof procedure : in one word, between what lightened example. It is not adverted we shall term, the Doctrinal and Me. that the fact is but a demonstration of chanical departments. Only the latter their barbarism. So with the Prulentes division must be of later development, . of the Romans, to whom we have just aldepending as it does on the formation of luded; a name which has been transa system of Procedure. And hence the mitted, with something of the institution divisions do not cross, because, strictly, itself of Prudhommes, to France, Holland not contemporaneous.
and other States of modern Europe. But, With these preliminary observations, as the consulting or counseling function we proceed to our history; commencing came at last 10 be separated from the duly with Greece--that fountain of much judging, by the establishment of Laws, more, perhaps, of our Jurisprudence* and so the recognition of principles of Evi. civil institutions than is commonly sup- dence and the adoption of rules of Proce. posed, as she is, avowedly, of our phi- dure gave birth to the avocation of the losophy and literature.
(pleading) Advocate. The ministry of the Advocate we What may have been the date of this have observed divides itself at first into event in Greece, it is now not possible to the two branches, Consultation and Plead- say. the trial, represented on the ing--pleading in its generic, not the Eng- shield of Achilles in the Iliad-probably
The poems known as Homer's (which were, probably, both the custumary and Bible of ancient Greece, as the Old Testament was among the Jews) were often cited as authority, on matters of Jurisprudence, in the pleadings and ihe writings of the Roman lawyers. And this respect continued to the last, as appears from the Pandects of Justinian, where Homer is characterized emphatically as pater omnis virtulis. The spirit, then, of the Greek institution may have descended to ours in even this channel. But Homer is cited still later by Grotius, though merely for historical illustration.