Volume 58 / Part 19 — WARREN'S LAW STUDIES.[13]

WARREN'S LAW STUDIES.[13]

The readers of Blackwood who, month after month, followed with increasing interest the adventures of Titmouse, and the adversity and restoration of the Aubrey family, will excuse us if we apparently diverge from our usual literary course to track the author of "Ten Thousand a-Year" in a work which he has given to the legal profession, or rather to those who meditate entering upon that profession, or who have just set their foot upon the threshold.

Mr Warren's "Introduction to Law Studies" has already received the approbation of the public, testified by the sale of an unusually large edition. This has prompted the author to fresh endeavours to render it worthy of the peculiar place it fills, and of his own name; and he now, "after ten years of additional experience, (eight of them at the bar,)" publishes a second edition, "remodelled, rewritten, and greatly enlarged"—indeed so considerably altered and amplified as to be, in reality, a new work under the old title.

"In the present work," says the preface, "is incorporated one which the author has for some years meditated offering to the public, viz. an elementary and popular outline of the leading doctrines and practice of each of the three great departments of the law, civil, criminal, and ecclesiastical." The work, therefore, now consists of three distinct parts. 1. A general survey of the legal profession—a description of the nature of its several departments, of the various studies, labours, modes of life, of the conveyancer, the special pleader, the common-law and equity barrister, in order to guide the choice of a young man, who probably has hitherto a very confused notion of what, and how many different things, may be implied in the vague expression of "going to the bar." 2. A concise and elementary view of the several branches of the law which fall to the especial study of these several departments of the profession, as equity, the ecclesiastical and common law; and, 3. the recommendation of a course of study, pointing out the best books on each subject, and adding many useful hints to the young student on the discipline of his mind, and the acquirement of general knowledge.

To us it seems that such a work must be of very great utility, and that Mr Warren has given the most complete "beginning book" that was ever put into the hands of a young person seeking, or entering, a profession. It is not a publication which, as far as we know, replaces or competes with any other, but fills up a vacancy, and supplies a want which must have often been painfully felt. How can a young man, ambitious of entering the bar, know the nature of that profession into which he is so anxious to enlist himself? He goes into a court of justice, and sees men in their grotesque but imposing costume haranguing the judge and the jury, and without further thought he resolves that he too will be an orator and haranguer. Or what is more frequently the case, he reads the published speeches of an Erskine or a Curran, accompanied with memoirs of the men, and accounts of their forensic triumphs, and he burns to achieve the like actions, and to wield the same "resistless eloquence." But who is to tell him the nature of that territory, and by what manner of journey it is to be traversed, which lies between him and the gowned orator he is desirous of emulating? He sees the great actor on the stage, or hears of the intoxicating applause which he wins; but who is to conduct him behind the scenes, show him the apprenticeship he has to pass through, the hazards of failure, the impatience and tedium of unemployed energies—"the sad seclusion of unfrequented chambers, or the sadder seclusion of crowded courts?"[14] How invaluable, at such a time, would be some kind good-natured friend, who had passed through the rough experience, who had sufficient remembrance of his own early mistakes and difficulties to comprehend all his bewilderment, and sufficient tolerance to endure being questioned on matters which to him have grown too trite and familiar to seem to need explanation. In Mr Warren's book he will meet with exactly the information he wants; he will find a chart of the profession unrolled before him; he may quietly test his own abilities, or his own courage, to adopt any of the several departments as they are submitted to his inspection. He will obtain all that he could gather from that kind good-natured friend at the bar, whom he has been longing for, and would so willingly seize by the button—nay, far more than he could gather from any one man who had not made the subject one of especial attention, and taken pains himself to collect information from various quarters. Besides, how infinitely agreeable is it, whilst yet a resolution is unripe, whilst yet it is the secret of our bosom, to be able to get our doubts solved, and our questions answered, from the silent pages of a book; to be spared the penance of exposing half-formed designs to the jocular scrutiny of our friends—to be permitted to consult without necessarily making a confidant—to be able to dismiss our thought, if it is destined to be dismissed, without betraying how dear a guest it has been.

The more youthful and less instructed of its readers will find every portion of this work useful to them; especially they will have reason to thank; the author for that facile introduction he has offered them to the study of the law itself. Never has been such a gently inclined plane set up, for weak and unsteady feet, against the hill of legal knowledge. The talent which Mr Warren has for familiar and elementary exposition is something quite peculiar. Nor will they fail to profit by his many practical hints for the discipline of the mind, and his advice as to their general reading. The student more advanced in years and in thought, and who entertains the project of entering the profession at a time when his mind has approached towards maturity, will perceive, and will have the candour to reflect, that much of the work was not written for him. But, on the other hand, he is the very person who will especially value it for that description of practical, familiar, but most necessary information, which it is rare to get from books at all—which to him it is peculiarly disagreeable to be compelled to extract piece-meal from chance conversation with men but half furnished with it, and perhaps impatient of the interrogatories put to them. What are the distinctions between the several species of the lawyer? What sort of an animal is, in reality, the conveyancer, or the special pleader, or the equity draftsman—what are its habits, where its haunts—how is it bred, how nourished—what process is he himself to go through, before he can be recognised as belonging to the class—how best may he set to work, and with least loss of time?—these are matters which he is very curious to know, and to him nothing is more welcome than to find them all explained in the printed page—to find them where he is accustomed to look for every thing, amongst his old friends the books.

Surprise has often been expressed at the fact, that there is no publicly appointed method of legal tuition, no lectures delivered on which it is compulsory to attend, not even any examination to be finally undergone before admittance to the bar. A little acquaintance, however, with the nature of legal studies, will soon dissipate this astonishment. There is but one way in which the law can be mastered; severe, steady, solitary reading, accompanied by the privilege of watching the real practice of the jurist in the chambers of the conveyancer or the special pleader. To one bent on the professional study of the law; lectures would be mere waste of time. To the idler they may bear the appearance, and bring some of the profit, of study; to the conscientious and resolved student, they would be an idleness and a dissipation. Where a subject admits of being oratorically treated, good lectures are extremely valuable; for oratory has its office in tuition, stimulates to reflection, and stirs generous sentiments, and we wish the oratory of the professor's chair were more cultivated amongst us than it is. Nor need we say that where the subject admits or requires the illustration of scientific experiments, lectures are almost indispensable. But in the tangled study of the law, where one must go backwards and forwards, as in a rope-walk, and twist one's own cable out of many threads—of what use can the lecturer possibly be? To teach us law in a fluent discourse, what is it but to have us feed—as the humming-birds are said to do—upon the wing? But even humming-birds feed in no such fashion; they sit down to their supper of rose-water. Much more must a lawyer have his table—his desk—fast before him; and spreading out his various fare, which needs a deal of mastication, feed alternately, and slowly and solemnly, on the several dishes which with ostrich stomach he has to digest.

As to the absence of all examination previous to an admission to the bar, the fact, that not only in our own inns of court, but in all similar institutions, such examinations have been allowed to dwindle into some empty and puerile form, sufficiently demonstrates their inutility. If an examination were appointed, it would be no test of the efficiency of the advocate; no sufficient guarantee to the ingenuous client who should wander into Westminster Hall in search of a lawyer. Not to add that the learned gentleman may have had ample time to forget all his legal knowledge in the interval between his call to the bar and the opening of his first brief. A license, indeed, is given to practise as an advocate, without any other qualification than that of respectability of character, and the payment of certain fees; but the case of no client is confided to the young orator, unless those who have the greatest interest in his competency are satisfied that he can be safely relied on. Men suffer their health to be trifled with by ignorant quacks and ridiculous pretenders—not their money. We need no Sir James Graham's bill in the profession of the law. Besides, it is not the good opinion of an uninformed public which the barrister has to seek or to depend upon. A lawyer, he is judged by lawyers. It is in the estimation of attorneys and solicitors that he must rise—not that of respectable ladies and nervous baronets. They stand between him and that unlearned public to which the physician, on the contrary, at once appeals.

The very circumstance, however, that there is no such public course of instruction marked out, and no prospective examination to be prepared for—that all is to be gained from that silent array of books which fill the long shelves of a legal library or from those chambers of the practitioner which, to those who look at them from without, seem as dark with mystery as they are with dust and smoke—this, we repeat, renders such a guide-book as that which Mr Warren has presented to the public, almost indispensable. In forming a critical estimation of his labours on this publication, it would be extremely unfair to forget, for a moment, the peculiar nature of the work. He is writing for the young. It is an elementary treatise. It is a book peculiarly practical; the very opposite of whatever is theoretical or speculative. If the style is somewhat more diffuse than we should on all occasions approve, we are far from regarding this as a defect here. The work, amongst other advantages, presents really a storehouse of that useful phraseology in which a public speaker should abound, that phraseology which lies between the familiarity of business and the pomp of oratory. And if, as we may perhaps be tempted again to remark, there is something too much of laudation of that profession and of that system of jurisprudence to which he is introducing the young aspirant, this too is a bias to which, in the present work, it would be ungracious to raise an objection. An elementary teacher should not chill and discourage his pupils by criticisms of a cold and censorious character; he should rather exercise his penetration in drawing into light concealed excellences. In this Mr Warren follows the example of the first of all commentators, the most successful of all teachers—Blackstone; who continues to be the most popular of all expounders of the law, even though the system that he expounds has almost deserted him. It seems that the law can be made obsolete, but not the commentary. With a pupil it is a thing understood and agreed upon that he is to learn the system as it now exists; to engage him to do this it were bad policy to decry that system, and expose its faults with a merciless analysis. When the student has mastered it as a lesson, he may then overlook and criticise it with what severity he thinks fit. We will quote a passage which will illustrate at once the lively manner of our writer, and also this happy Blackstonian tendency—the habit of animadverting very gravely on those errors of the law which have been reformed, and remaining still "a little blind" to those which are yet untouched.

"Down to the year 1832, the system of common law pleading and practice supplied the student, during the greater period of his pupilage, with little else than the most degrading and unprofitable drudgery. It presented to his despairing eyes a mass of vile verbiage—a tortuous complexity of detail, which defied the efforts of any but the most creeping ingenuity and industry. There was really every thing to discourage and disgust a liberal and enlightened mind, however well inured to labour by the invigorating discipline of logic and mathematics. The deep and clear waters—so to speak—of legal principle, there always were, and will be, for they are immutable and eternal; but you had to buffet your way to them through "many a mile of foaming filth," that harassed, exhausted and choked the unhappy swimmer long before he could get sight of the offing. Few beside those who had had the equivocal advantage of being early familiarised with such gibberish as "special general imparlance"—"special testatum capias"—"special original"—"testatum pone"—"protestando"—"colour"—"de bene esse," &c. &c. &c. could obtain a glimmering of daily practice, without a serious waste of time and depreciation of the mental faculties. Let the thousands who, under the old system, almost at once adopted and abandoned legal studies, attest the truth of this remark. There was, in short, every thing to discourage a gentleman from entering, to obstruct him in prosecuting, the legal profession. Recently, however, a great change has been effected. There has been a real reform—a practical, searching, comprehensive reform of the common law; a shaking down of innumerable dead leaves and rotten branches; a cutting away of all the shoots of prurient vegetation, which served but to disfigure the tree, and to conceal and injure its fruit. Now you may see, in the common law, a tree noble in its height and figure, sinewy in its branches, green in its foliage, and goodly in its fruit. May it be permitted, however, to express an humble hope, that the gardener will know when to lay aside his knife!"—(P. 20.)

And yet Warren has a knife, too, of his own which he would willingly employ upon some part of this noble tree—either its old or its new branches. It is impossible for even the most indulgent commentator not to perceive that there are in our system of pleading many technicalities, which, so far from being necessary to the administration of justice, have no other operation than to retard, to complicate, to defeat the administration of justice. At p. 738—a very prudent and respectful distance from the quotation we have just made—we find the following admission:—

"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!

As we have intimated, we do not feel disposed to blame our author that he speaks often of his "glorious," his "noble" profession. The golden hue of sunrise is rightly cast upon the pinnacles and towers of that city the traveller is toiling to reach. What narrow and squalid streets, what blind alleys, what there is of filth and ruin in the great capital of intelligence, he may find out afterwards for himself. There was a time when we, too, were younger than we are, and saw the proud city at the same advantageous distance, when, dazzled by the view of its more conspicuous ornaments, we might have been tempted to make the same exclamations, and to use the same flattering phraseology. At that time, if any one had thrown a shadow of moral blame on the very principle and universal practice of the profession of advocacy, we should have indignantly repelled the accusation, we should have rushed to its defence, perhaps we even did attempt to throw our little shield before its huge and very vulnerable body. But now—when some years have rolled over our heads, and we have learned to think more calmly, if not more wisely—when we have caught a glimpse of the men who fill high places, and stood near enough to discover that they were of earth's common mould—when the actual din of forensic oratory, deafening and monotonous, has rung in our ears, and we have sat and watched the solemn juggle, and the stale hypocrisy with which that legal strife called a trial is conducted—now, if any teacher of ethics should denounce the demoralizing principle of advocacy—the principle we mean of contending for any client, or any cause, that craves fee in hand—we should no longer be eager to thrust ourselves between him and the object of his indignation; we should let his wrath take its course; we should listen with patience, with neutrality, perhaps with secret satisfaction at his attack. What, after all, is to be said in answer to the reproach which every simple-minded man must make—not against this or that member of the profession, because an individual is always considered blameless who only adopts the customs of his country—but against the whole profession, the principle and theory of its action, this arguing for A or B, for Yes or No, as they first come, without the least regard for justice or for truth?

It is well known what Paley has said in its defence. "There are falsehoods," he writes in his chapter on Lies, "which are not lies, that is, which are not criminal; as, 1. when no one is deceived—which is the case in parables, fables, novels, jests, tales to create mirth, ludicrous embellishments of a story, where the declared design of the speaker is not to inform but to divert; compliments in the subscription of a letter, a servant's denying his master, a prisoner pleading not guilty, and an advocate asserting the justice, or his belief of the justice, of his client's cause. In such instances no confidence is destroyed, because none was reposed; no promise to speak the truth is violated, because none was given or understood to be given."

Ay, but the advocate does strive to be believed—does labour to deceive. His very object is to gain credit for his assertion, whether contrary or not to his sense of truth. He stands there, it is true, in the character of advocate, subject to whatever suspicion you may attach to that character; but all his ability is employed to overcome that suspicion, and compel you to credit him. "Confidence is not reposed;" not readily it may be; he labours, therefore, the more assiduously to win it. How can he avail himself of the plea here offered for him? How can he place himself in the sane category with the portly merchant who signs himself "your humble servant," and would indeed be strangely surprised if you took him at his word? Or with the obedient valet who denies his master with the customary, "not at home?" No man uses language with a more evident desire to obtain our conviction than the advocate.

There is another so-called theory of advocacy, which we will state in the words of Bishop Warburton. In his Divine Legation, vol. i. p. 397, he says, speaking of Cicero—"As an orator, he was an advocate for his client, or, more properly, personated him. Here, then, without question, he was to feign and dissimulate his own opinions, and speak those of his client. And though some of those who call themselves casuists, have held it unlawful for an advocate to defend what he thinks an ill cause, yet I apprehend it to be the natural right of every member of society, whether accusing or accused, to speak freely and fully for himself. And if, either by a legal or natural incapacity, this cannot be done in person, to have a proxy provided or allowed by the state to do for him what he cannot or may not do for himself. I apprehend that all states have done it, and that every advocate is such a proxy."

This explanation goes far. Of a certainty, every man has a right to approach a court of justice with such plea, or such demand, as the law gives him. For his ultimate aims, for his moral purposes in so doing, he alone is responsible. We do not desire the barrister so to prejudge the cause of the litigant as to decide whether or not he ought, as a moral man, to carry it into a court of justice. Let his plea, or his demand, be laid before the tribunal of his country, and as he cannot, in the complicated state of our jurisprudence, do this for himself, it is right and equitable that there should be professional men whose function it is to do this for him. But it follows not that the professional man is to pledge his own personal convictions in every case he undertakes. Let him speak in the name of his client, let him limit himself to the office of interpreter, where his own convictions do not allow him to be the zealous advocate. The state ought to give to every man free access to a court of justice, and to all the armoury of the law; how he uses the weapons he finds there, he must account to God and his own conscience, and the moral judgment of society; but the state is not to give to every rogue the benefit of the apparent convictions in his favour, of a learned and honorable gentleman. If the barrister speaks, and is understood to speak, as from his client, and not from his own conviction, the indiscriminate advocacy of causes which the administration of justice requires, is reconcilable with the manifest claims of morality. But not otherwise. To lend out the zeal of truth to varnish every cause, is what no system of jurisprudence demands, and what no system of ethics can tolerate. Yet this is what is done.

If a conveyancer is instructed to draw a will which appears to him unjust, he must feel some pain in so doing; but it is not a pain of conscience, for it is not his office to compel people to make equitable wills. It is an office which, at the distance he stands from the parties, and with his limited knowledge of their character and mutual relationships, he could not possibly undertake; he would be a mere disturber of the peace of society if he attempted to regulate the morality of all the conveyances and testaments that he drew. It would indeed be a doctrine destructive of all order, and of the very machinery of society, that would, as a general rule, impose upon men of profession, or of trade, the responsibilities which lie, in the first instance, upon the consciences of their clients. A man could not sell a piece of whipcord from his shop, without having an assurance from the customer that he was not buying it to strangle his wife withal. The conveyancer, therefore, quietly pursues his instructions, and draws the will. In the like manner, if a barrister is instructed to plead the statute of limitations to a debt, it is no concern of his if the client is not acting in a conscientious manner in taking advantage of the statute. The law gives him this plea, and it is not for the jurist to debar him the use of it. He presents it, therefore, to the court. But if, not content with pleading the statute of limitations for a client who employs the law to escape from a moral obligation, he labours to convince the jury that, in availing himself of this plea, his client is acting in a very honourable, or at least in no blamable manner; if, by an artful colouring of the facts, or by insinuations against other parties, he contrives to lead the culprit in triumph through the court, then we say that a baseness is committed by the advocate, for which there is no excuse, in the constitution of courts of justice, nor in the subtleties of casuistry.

Those who have expatiated on the duty of the barrister to do all for his client, be that client whom he may, have generally taken care to place before us the cases of political prosecution, where the advocate appears to act a brave and generous part in opposing the government and the legal officers of the crown. By dexterously keeping the small cases in view while they were enlarging on the broad principle of indiscriminate advocacy, they have often contrived to give to this principle itself an air of generosity; as if the barrister were performing a noble self-sacrifice, were devoting himself in a quite heroic manner, by giving himself, head and heart, voice and intelligence, to the first distressed applicant for his aid. It is only by referring to the political nature of the occasion on which it was delivered, that we can account for the following splendid exaggeration of Lord Brougham's upon this subject:—

"An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means—to protect that client at all hazards and costs to all others, and among others to himself—is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on, reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection."

This piece of eloquent absurdity was delivered on the trial of Queen Caroline, and the speaker was playing the advocate at the time he delivered it. But Lord Brougham would not surely speak or write in the same strain upon other and more ordinary occasions—if, for instance, the client, for whom the country was to be involved in confusion, was a railway company![15]

Every man has something to be said for him in the way of defence or palliation; we have no objection to every man having his advocate in Westminster Hall; but we are persuaded that public opinion is far too indulgent to this "glorious and noble" profession, when it permits its members, speaking as from their own conviction, to sport with truth to any extent that may be serviceable to their clients. A more temperate zeal, which should not overstep what the interest of justice demands, would indeed be less munificently rewarded; but, in every other respect, it would be a clear gain both to the cause of public morality and the administration of the laws.

But that which, perhaps, more frequently calls up a feeling of pain and humiliation in the barrister, is that for which he is not at all responsible; namely, the nature of those legal weapons the employment of which his client has a right to demand of him. The rules of pleading and of evidence have been lately much simplified and improved, and they will, year after year, be still further improved; but they still furnish the willing or the unwilling advocate with abundant obstructions to the fair investigation of truth. Speaking of pleading, Mr Warren has very truly said, in a passage we have already quoted—"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." A glance at these "legal categories" will fully bear out the statement which our author has here so temperately made. Let us open the justly lauded book of Mr Stephen, "On the Principles of Pleading"—a work which every man, lawyer or not, who receives a gratification from clear and logical statements, may take pleasure in perusing. We extract the following account of personal actions:—

"Of personal actions, the most common are the following—Debt, covenant, detinue, trespass, trespass on the case, replevin.

"The action of debt lies where a party claims the recovery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him.

"The action of covenant lies where a party claims damages for a breach of covenant, i. e. of a promise under seal.

"The action of detinue lies where the party claims the specific recovery of goods and chattels, or deeds and writings detained from him.

"The action of trespass lies where a party claims damages for a trespass against him. A trespass is an injury committed with violence."

Having described these, the author comes to one which requires to have its history told before it can be rendered intelligible. This is still not unfrequently the case in our law; instead of a definition founded on the nature of things, and growing out of the science itself of jurisprudence, we are presented with a narrative to tell us how the matter came about.

"The action of trespass on the case lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply. This action originated in the power given by the statute of Westminster 2, to the clerks of the chancery to frame new writs in consimili casu with writs already known.... Such being the nature of the action, it comprises, of course, many different species. There are two, however, of more frequent use than any other species of trespass on the case, or, perhaps than any other form of action whatever. These are Assumpsit and Trover.

"The action of assumpsit lies where a party claims damages for breach of simple contract, i. e. a promise not under seal."

The action of trover differs from detinue inasmuch as the party claims damages, not the recovery of the identical goods and chattels. With the action of replevin we will not trouble our readers, to whom we ought, perhaps, to apologise for entering thus far into legal technicalities.

But now, reflect a moment on this classification. A promise under seal must assuredly require a different proof from a promise not under seal; but what end is answered by calling one an action of covenant and the other an action of assumpsit? Or what good result can arise from limiting the definition of debt to the claim of a sum certain? Who sees not what a snare may be here laid for the feet of unwary suitors? The names of trover, detinue, trespass, give no information to the defendant; the substantial cause of action is stated in the declaration, and these names are mere useless additions. Yet the right name must be chosen, or it is fatal to the suit. If trespass be adopted instead of trespass on the case, the error is fatal; and yet mark how lucid, how intelligible, how satisfactory is the classification designated by these terms of art.

Trespass is the proper form of action when the injury has been committed with violence This looks sufficiently distinct. But then the violence may be either actual or implied; and the law will imply violence wherever the injury is direct, and the property injured of a tangible nature. In the most stealthy, peaceable entrance upon another man's land, the law implies violence. What, therefore, may or may not be said, in the usual phrase, to be done vi et armis, remains to be known, by no means from the nature of the facts themselves, but from arbitrary decisions of courts. To make out a class of actions as those committed with violence, and then to imply violence where in reality there is none, is first to make and then unmake the distinction. And yet, as some distinction is, for the embarrassment of suitors, to be retained, this implication of violence is restricted to cases where the injury is direct and not consequential; and what shall be denominated a direct and what a consequential injury, is again a matter of no small difficulty. Moreover, in order to sustain trespass, the property injured must be of a corporeal nature. It would be a sad solecism in the eye of the law to allow a man to bring trespass on account of his tithes—this being, according to definition, an incorporeal property, and from its nature, therefore, not subject to violence.

This barbarous nomenclature of actions might be swept away at once with considerable advantage. If the plaintiff "complaining" of the defendant, proceeded at once to a brief statement of his cause of action, this would answer all the purposes of pleading. It was said by the commissioners in the third report on the common law, that an abolition of these distinctions would entail "much uncertainty on the right of action." With utmost deference to the commissioners, this is a very strange assertion. These categories are known only to the lawyers; and surely a student of the law cannot be at a loss to distinguish the substantial ground of action from a mere formulary of pleading. A layman may often imagine he has a right of action where he has none. Did the commissioners mean gravely to assert that these categories, of which he knows nothing—or whether he knows them or not—could enlighten him as to the redress he is entitled to in a court of justice?

It is, however, in the inexhaustible armoury of quibble and objection which the law of evidence supplies him with that the generous advocate must feel the greatest amount of embarrassment and repugnance. It is his office to stand at the door of testimony, and thrust back every witness, and reject every document, he can, upon pleas which, whatever their original ground or design, he very well knows do not impeach the real value of the evidence rejected. But into this topic we must not enter. It is not our present object to write upon the reform of the laws. The subject would lead us much too far.

One general remark only we will venture to make. Neither in nor out of the profession must men yet be impatient with the frequent changes that our laws undergo. Though, in common with our author, we estimate highly a settled state of things, and have to deprecate the rashness of some too hasty legislators, we cannot yet "lay aside the knife." They are very inconvenient these partial changes, but there is no other mode of proceeding. Whilst we are living in the very city which we have to improve, and in great part to rebuild, what else can we do but pull down here and there a street at a time, and reconstruct it on a better plan? It is miserable work this pulling down. One is blinded by dust—one loses one's way; all seems ruin and confusion. But the new street rises—the rubbish is removed—the dust is laid; one finds one's way again, and finds it twice as short as before. It is only by successive changes of this kind that the great city of our jurisprudence can be adapted to the wants of its multiplied and changed inhabitants.

We ought perhaps to mention, that Mr Warren has been discreetly silent on some of the topics to which we have ventured to allude. He has very wisely avoided all questions of casuistry; and we trust that, in our glances on the moral position of the bar, we shall not be thought to have manifested any want of respect for a learned body, the members of which, in their individual character, stand as high in our estimation as those of any body whatever, and which, as a whole, presents a greater array of talent than in any other denomination of men could be met with. We revert once more to Mr Warren's very useful, able, and praiseworthy publication to wish him success, not only in this undertaking, which may be already said to be crowned with success, but in the still greater and more laborious enterprise which he has on foot, and which this specimen of his legal authorship shows him fully competent to achieve.