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But truth is better as well as stranger than fiction, and the most potently useful words written upon law in this century were those of the New York Code of Procedure of 1848: “It is expedient that the present forms of actions and pleadings in cases at common law shall be abolished, that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceeding in all cases should be established.”
CHARLES READE, in two of his later novels, “Very Hard Cash" and "Griffith Gaunt," gives long reports of imaginary law-trials. I believe that Mr. Reade has studied law, but he certainly has not drunk deep enough at the legal spring to escape blunders that would throw out a candidate for admission to the bar. For example, in “Very Hard Cash,” in an action of false imprisonment, the issue being the insanity of the plaintiff, he admits the dying declaration of the plaintiff's sister to the effect that he was sane! And in “Griffith Gaunt” he admits evidence of a woman's unchastity on the question of her reputation for veracity! In the latter novel he severely satirizes what he calls the "postponement swindle." In this he also makes his heroine defend herself (successfully, of course) against an accusation of murder. All this is conveyed with great wit and power, and with a dramatic sense in which the author surpasses all his contemporaries. For the action of false imprisonment which his hero brought against the proprietor of the insane asylum, an approximate precedent may be found in real life, in Van Deusen v. Newcomer, 40 Mich. 90, where the Michigan supreme court were equally divided on the question, whether the superintendent of an insane asylum, in good faith confining a person at the instance of his friends, without previous judicial determination of his insanity, is liable to such an action when it turns out that he was sane.
If I were called on to designate the most brilliant writer of fiction of the present century, I should hesitate ; but if I were required to name the dullest, I could not hesitate a moment in awarding this voluminous writer the palm. “The Nation” once acutely said, Flatness has always been at once Mr. Trollope's forte and foible.” Trollope in fiction and Tupper in poetry, — to the mind, an inseparable pair ! Mr. Trollope's exceeding goodness does not make up for his dulness. “Orley Farm" illustrates his dealing with legal subjects. The great question is one of fact as to the genuineness of a will of Sir Joseph. The legatee was permitted to testify that her father had once told her that he hoped Sir Joseph would provide for her ; that she had always known the testator, and did not think it unnatural he should provide for her, etc.
But it is in his ethics that Mr. Trollope is strongest. He severely blames Mr. Furnival, a barrister, for espousing and advocating his clients' cause with zeal and apparent confidence, when he “knew" she had forged the will. By “knew" he simply means, suspected. more than this,” he adds, “stranger than this, worse than this, when the legal world knew — as the legal world soon did know — that all this had been so, the legal world found no fault with Mr. Furnival, conceiving
that he had done his duty by his client in a manner becoming an English barrister and an English gentleman." This is goody-goody; and after reading such fine sentiments we are surprised, in reading his “ Life of Cicero,” to note that he has nothing to say against his idol, Cicero, who once, he says, “by the happiness of a bon mot, brought the accused off safely, though he was manifestly guilty," and who had the craft to suppress the passage in the published editions of his speech. (Herein Cicero shows his superiority to our modern congressman, who never says any thing clever except in the "Record.") In another part of the “Life of Cicero," Mr. Trollope says, “When I look at the practice of our own times, I find that thieves and rebels are defended by honorable advocates, who do not scruple to take their briefs in opposition to their own opinions." (Pray, what have “their own opinions” to do with it?) It suited Cicero to do the
If I were detected in a plot for blowing up a cabinet council, I do not doubt but that I should get the late attorney-general to defend me." And why not? It would go less against the grain to defend him for that than for writing such poor, dull stuff, which not even his excessive virtue can render tolerable. Cicero stands in no need of apology on this score. But I am foolish to get in a heat over Mr. Trollope.
AS DEPICTED BY THE MORALISTS, ESSAY
ISTS, HISTORIANS, AND SATIRISTS.
AMMIANUS MARCELLINUS, In his Roman history, draws the following terrible picture of the Roman lawyers, which evidently has so much of exaggeration and fiction in its composition, that it becomes appropriate to quote it under our subject :
“Of these the chief is that tribe of men who, sowing every variety of strife and contest in thousands of actions, wear out the doorposts of widows and the thresholds of orphans, and create bitter hatred among friends, relations, or connections who have any disagreement, if they can only find the least pretext for a quarrel. And in these men the progress of age does not cool their vices, as it does those of others, but only hardens and strengthens them. And amid all their plunder, they are insatiable and yet poor, whetting the edge of their genius in order by their crafty orations to catch the ear of the judges; though the very title of those magistrates is derived from the name of justice.
“In the pertinacity of these men, rashness assumes the disguise of freedom; headlong audacity seeks to be taken for constancy; and an empty fluency of language usurps the name of eloquence.
“There is a second class of those men, who, professing the science of the law, especially the interpretation of conflicting and obsolete statutes, as if they had a bridle placed in their mouths, keep a resolute silence, in which they rather resemble their shadows than themselves. These, like those men who cast nativities or interpret the oracles of the sibyl, compose their countenances to a sort of gravity, and then make money of their supine drowsi
And that they may appear to have a more profound knowledge of the laws, they speak of Trebatius and Cascellius and Alfenus, and of the laws of the Aurunci and Sicani, which have long become obsolete, and have been buried ages ago with the mother of Evander. And if you should pretend to have deliberately murdered your mother, they will promise you that there are many cases recorded in abstruse works which will secure your acquittal if you are rich enough to pay for it.
“There is a third class of these men, who, to arrive at distinction in a turbulent profession, sharpen their mercenary mouths to mystify the truth, and by prostituting their countenances and their vile barking, work their way with the public. These men, whenever the judge is embarrassed and perplexed, entangle the matter before him with further difficulties, and take pains to prevent any arrangement, carefully involving every suit in knotty subtleties. When these courts, however, go on rightly, they are temples of equity : but when they are perverted, they are hidden and treacherous pitfalls ; and if any person falls into them, he will not escape till after many years have elapsed, and till he himself has been sucked dry to his very marrow.
“There is a fourth and last class, impudent, saucy, and