Originally published in Douglas Jerrold's Shilling Magazine (Punch) vol.2 #19 (Mar 1847).
Our readers are aware that the Bar and the Press have come to blows. The quarrel arose in this way. Last year a personal difference, the origin of which has not been made public, occurred betwixt the conductors of the Times and Mr. Sergeant Talfourd. They had previously been on the best terms. The Journal then omitted the name of the Sergeant from its reports of law cases in which he was concerned, and the omission was regarded by the whole Bar as an injury. Barristers live by publicity, and to suppress a name in the public reports is nearly equivalent to professional extinction. Mr. Sergeant Talfourd's case to-day might be the case of any other learned sergeant to-morrow; and the bar, alarmed at the circumstance, made common cause with the Sergeant, and retorted the omission of the Times with a covert attack on the whole newspaper press. First, the gentlemen of the Oxford circuit, of which the Sergeant is a member, and then those of the western circuit passed resolutions to exclude from the bar mess, and of course from their society, every member who reports for a newspaper. In retaliation the metropolitan newspapers, in their reports of the cases on these two circuits during the summer assizes, suppressed the name of every barrister. To the surprise probably of the public no barrister appeared on either of those circuits to have opened his lips; and whatever advantage their clients might have reaped from their exertions, the eloquent gentlemen were dumb for all the world beyond the audience which could be crammed into the court. The reputation of this sergeant and that barrister ceased to expand, as the newspaper breath was withdrawn, and they may probably ere long collapse into their deserved and original nothingness.
This is an important dispute. It involves the dignity and usefulness of two very influential bodies, and suggests the propriety of inquiring into the relations of both to society. Into the details of the quarrel, which have been the subject of many leaders and many letters—of squibs and satires innumerable—all of which have fallen crushingly on the Bar, it is not our purpose to enter. The cause of the Press has been effectively vindicated in the Times and in a publication which our modesty forbids us to mention. We are of opinion that all the merits of the quarrel are on one side. Passion or carelessness may stain with its own bad qualities the principle at issue, but the attempt of the Bar to stigmatise the Press while it is solicitous of the publicity it confers, is so preposterously arrogant that it requires no further exposure. We have rough-sketehed the quarrel only to lay the ground for a philesophical appreciation of both; it being our purpose to assign to each its proper place in the social scale, and award to each the merit which is its due. The Bar, as the older and better known of the two, first deserves consideration, and shall be treated of in our present number.
Lord Brougham, in his celebrated speech on Law Reform, when he was still a fluent patriot, and had no hopes of the chancellorship, described the law as intended to be "the staff of honesty and the shield of innocence," but he added that it "actually is a two-edged sword of craft and oppression." On this theory the law is a noble instrument perverted to the vileat purposes. Who are the authors of this perversion? Some small part of the mighty mischief may be laid at the door of the judges, who, deducing the law from previously decided eases, are very often law makers; but as soon as a barrister becomes a judge he loses almost every motive for an unjust interpretation of the law, and in the great majority of cases endeavours to administer it justly and honestly. Not so the barrister. It is assigned to him as a merit that he sometimes helps the oppressed, and rights the wronged; but there is no suit at law, no cause in the criminal courts, which has not one or mere barristers on either side. If one half of the bar be the shields of innocence, the other half is for ever sharpening and driving home the "two-edged sword of craft and oppression." This half always endeavours to lead astray the judgment of the judge, or obtain unjust verdicts from juries—to mystify what is clear—to confound what is distinct—to make the wrong appear the better reason; this half, which cultivates eloquence only to mislead, is the chief author of that perversion of the noblest instrument to the worst of purposes, which we all sorely feel, and which Lord Brougham has so emphatically denounced.
In order to perform the duty of defending any wrong for which the barrister may be hired, the whole Bar studies the arts by which that can be done successfully. That becomes their habit. The aim of their lives is to wrest the law to the purposes of well-paying clients and defeat justice. It is only by accident that they are the shield of innocence—their general business is to let out their talents to oppression. Rich rogues, capable of buying great legal assistance, are rarely the objects of an unjust attack. The wrong-doer is mostly the proud noble, the arrogant priest, the rich plunderer, who possesses and can bestow those rewards to which the Bar look. Their tongues being ready fer any hirers and wrong-doers requiring their assistance, while the innocent and oppressed rely on their own integrity, by far the largest half of the Bar will always be the agents and instruments of wrong-doing. There are exceptions: we speak of the Bar as a whole. The object of legal education is to fit barristers for the office of defending wrong; and rarely is a wrathful weapon made, but cunning hands are found to use it. The Bar is educated for the service of the rich, and the oppressors buy it.
By an arrangement which excites our surprise more than our respect, the oppressed and wronged in the result, even when they are successful in a court of law, are sure to incur considerable loss, A. victorious litigant never recovers the whole of his costs. The members of the Bar, unlike the fabulous protectors of innocence who rewarded with many gifts the struggling virtue which they saved, fleece, by the help of the law which they have perverted, the innocent they are said to shield and protect. They must have their fee before they open a brief. Now, as the larger half of the Bar is ranged with the oppressors, and as the other half assist in impoverishing those who are wrongly assailed, the Bar must on the whole be far more injurious than beneficial, That the half of the Bar, at least, is always ranged on the side of the wrong-doers, gives but a faint picture of the mischievous character.of the whole profession.
Such is our estimate of the Bar, on Lord Brougham's theory that the law is "the staff of honesty and the shield of innocence," perverted into a "sword of oppression;" what then will it be on the supposition that this is, at all times, rather a theory of what the law aught to be, than an actual description of what the law ever is or ever has been? What will be the character of the Bar if the law itself be evil? We speak not of laws which inspiration gave to the chosen people; but of the laws of England, made by king, lords, and commons in parliament assembled, or by the judges in their courts. Every day now testifies that laws are not passed because they are just and wise, but because they serve a party, a class or a factious purpose. The Whigs make one series of laws, and the Tories another. As a man is in or out of office he takes a different view of legislation. Now the country gentlemen and now the bankers, or manufacturers, or ship-owners, make the laws, or get them made for their peculiar advantage. At one time the law is required to confer something on the Catholics, at another the Orangemen are angry that it does not benefit them. One act is passed to enrich the Church, another to give something to the dissenters. We have on one occasion the abandonment of an unjust law offered as the price of place; and at another we are cursed with a tax, our property is forcibly taken away by a law, to keep a minister in power. The community as a whole, and the manner in which it may be affected by laws which are thus passed for class, factious, or individual purposes, is never considered by our honest legislators. This is too vast a subject for their minds to take in; and so they scheme to model society bit by bit, never observing that every one of their intended beauties is a blot and deformity of the majestic figure of the whole.
Nor does the criminal law spring from higher motives and more enlarged wisdom than our municipal and fiscal regulations. Some crimes which we all condemn are liable to severe punishment, but there are many others which escape scot-free or lead to honour. Most of our criminal enactments were dictated by revenge; and for ages the nobility and men of property made laws, the spirit of which is still acted on, to deprive of life those who retorted on them individually, in a small degree, their own rapacious class practices. As knowledge has taught the nation what is right, and has impressed on it the transcendental value of justice, it has been continually compelled, and still feels itself under an imperative obligation to repeal the bloody enactments by which avarice sought to protect its usurpations, and revenge clothed itself with the sanction of legality. The improvement hitherto effected is only a partial index to what is yet to do; and game laws, corn laws, laws of entail and primogeniture, and laws for maintaining churches, with other similar laws, vehemently reprove us with suffering or committing great legislative injustice.
Much as this generation justly complains of class legislation, it is quite certain that there never was a time, in England nor in any other country, not even those times which are properly called fabulous, when laws were made from purer and holier motives than now. Run back, reader, in thought, over the terrible parliamentary corruption of the three first Georges; over the heated strife, both religious and political, which dictated laws in the reign of Anne and William the Third,—run back over the violent re-action and previous more violent confiscations and revolution of the James's and Charles's, which gave birth to many existing laws—run over the long and arbitrary reigns of the Tudors, remarkable for violent enactments, the sources of many existing titles and possessions, and for stringent penal laws to meet changes which neither sovereign nor minister comprehended—or going still farther back, and thinking of the contentions of the Roses, whilst statutes were introduced to stint the labourer of his hire—of the Conquest and its oppressive forest laws, or the previous conquests of Saxons and Danes for the purposes of robbery, which established the lordship of some and the slavery of others—look at those periods when laws were made for the very purpose of keeping the conquered in obedience and awe—run back even cursorily over our whole history, and it will be apparent at every period, and the further we go back the more glaring is the frightful fact, that laws have been generally and at all times made to gratify some lust in a conquering race, some class interest, or some love of revenge, and rarely or never have they been made as the means of doing justice between man and man, or affording protection to the innocent and redress to the oppressed. The supposition that all law is so intended is a kind of blind-puppy belief, which mature men who have opened their eyes and understandings know was never the fact. A law may now and then be made for the punishment of oppression, but the general characteristic of laws is that of a sword in the hand of conquerors and oppressors, by which they control, subdue, and awe those they pretend to serve.
To form a correct judgment, however, of the social rather than the political position of the Bar, we must take an enlarged view of society. Sacred history informs us that society began with a single pair, and profane history confirming that, teaches us that population, with temporary oscillations and temporary decays, has gone on increasing from a few persons, and spreading over the earth. That is the result of some great natural system. Society is everywhere developing itself according to inherent laws of its own. It is not the creation of kings and senates, or long-headed benevolent schemers. Man and woman, and family relations, with all the numberless consequences of the multiplication of families, commonly called society, is one of nature's noblest creations, which we have not learned to comprehend, and which we disfigure by endeavouring to make it other than she intends.
Society is distinguished apparently from the great periodic movement of the heavenly bodies by not returning on its path, and therefore would appear to be more difficult to comprehend even than they are. It moves for ever onward, but there is reason to suppose that extended analysis and observation may obliterate the apparent distinction, and trace both a periodic and progressive movement in every class of phenomena.
The continual destruction and reproduction of the species within a not ill-defined period, briefly to hint at one analogy, is obviously similar to the annual flowering and fruiting of many plants, and to the annual and periodic return of the sun to a place in the heavens on which the fruiting and flowering depend. in like manner, the slow and imperceptible changes which we learn from many recorded observations are going on even as to the place of the sun's periodic return, in conjunction with the modern theory of a continual creation of new suns and new worlds, establishes a resemblance in the most magnificent astronomical phenomena to the progressive development of society.
All movement is perhaps both progressive and periodic. We live, happily for the gratification of our best faculties, in the midst of unexplored and unexplained wonders, which multiply like mankind themselves in an accelerating ratio much faster than we can investigate them; and every one that we explain brings us acquainted with many mere which are at first inexplicable. New phenomena spring abundantly out of every investigation. What a host of wonders growing from the discovery of electricity now claims attention. Science suggests then, if it do not confirm, the supposition, that on earth as in heaven creation is still in progress. Like eternity and infinity—creative power, improving, sustaining, and producing worlds and all that inhabit them, is an insuperable attribute of the Deity. Reproduction as well as development is another name for continual creation, and of that our being as individuals and society is a part.
Though science be yet too imperfect to establish a coincidence, in every minute particular, between the periodic and progressive movements of all creation and the similarity of the laws which govern the earth and the heavens and all that is therein, it cannot be denied that society is progressive or continually expanding. This is one great law of its being. The progressive is the healthy, the happy, the natural state of society. Whatever contravenes it, like a law impeding the increase of food and the increase of people, is unnatural disease and misery. But all laws are stationary, and intended to be stationary. The object of the legislator, even when most wise and enlightened, is to tie men fast to one spot of time and knowledge. He catches hold of the new phenomena of society as they arise, each of which in its turn and place is appropriate and beneficial; at one agriculture, at another commerce, and at a third manufactures predominate, and he endeavours to stop at that temporary and local improvement, and make it the perpetual limit of man's progress. The law-maker, knowing nothing of futurity, always aims, and must aim, at fathoming society by his own incomplete and fleeting perceptions. Thus laws, like the Tories, and like the famous duck-legged drummer of the Times, are for ever behind society, and hamper its progress. Under the spur of necessity it is reluctantly and continually compelled to reform or sweep away the institutions to which lawyers pertinaciously cling. It always has great difficulty in making them relax their grasp; but it must do this or be strangled.
Such is the true character of law, and of that the Bar is the creature and the minister. Other professions and trades, such as agriculturists, merchants, manufacturers, bakers, even soldiers or defenders, have their origin in the natural wants of man, and are portions of natural society. "God," says the poet, "makes the country," but the law, like the town, is exclusively of man's building; and the legal profession is altogether like the ricketty deformities of our ill-ventilated sheds, the creature of man's hand. The legal profession is no part of natural society. This distinction is of great importance, and leads to considerations of equal importance.
It is an undeniable fact that law is a restraint, and very often like our fiscal and commercial regulations, a mischievous restriction. It is opposed to natural freedom, and we do not believe that man can mend a great work of nature which he cannot grasp nor comprehend. Those who carry the law into effect must of necessity therefore be enemies of freedom. The Bar thus appears to us as a great instrument of usurpation. It requires all right to be enjoyed in subserviency to it, and it takes a heavy toll for guaranteeing us partial freedom.
The Bar being the creature of the law, necessarily forms ideas of right and wrong from its creator. Common sense perpetually says the law is unjust; the Bar has no other criterion of justice than the law itself. It says of actions only that they are or are not legal. It declares that men have no right but what the law confers. Its conscience is the offspring of the unjust law. The bulk of mankind appeal to the laws of God or the laws of nature; for the Bar to appeal to any other rule of advice than the dicta of judges or the statutes at large, would be to undermine the craft by which it has life, eminence, and power. Common language, as well as common sense, invariably indicates the existence of a higher and more general standard of morality than the varying and imperfect municipal institutions of any and of all countries. Those whose ideas are formed on them as a model must take a low, erroneous, and degraded view of the possible moral excellence of man. Setting up the judge-made law, and the law made by parliament, above the law of nature, the Bar struggles perpetually to confine man within the limits of legislation, and would retard the improvement if not insure the deterioration of the species.
This leads us to believe that many of the common imputations on the Bar are just. As the laws are crooked so are the minds of the legal profession. As the laws are unjust so the Bar is always ready to do injustice. Barristers are not only to be found in courts driving home the oppressor's sword—they are in parliament and in public the defenders of political and legal abuses. They are ever ready to draw a Six Acts' Act or a Coercion Bill, and to give every new tyranny a legal shape. The bulk of them side with misrule against the popular right. Their professional studies make them prefer Justinian to Christ, and honour in Bacon the corrupt Chancellor more than the sublime philosopher.
Man is evidently adapted, like the bird to the air and the fish to the water, to the earth which is given him for his habitation. His eye bears a beautiful relation to light coming from the utmost bounds of telescopic vision, and all his faculties—in strict harmony with the world around him—qualify him at all times and in all situations, admirably to perform all the business and duties nature requires of him.
He must, as the first and great condition of a happy existence, have an abundance of food, and to the production of food his labour and his knowledge, his hand and his mind, are appropriate at every stage of society;—whether the yet untutored savage state, when man is scarcely skilled to entrap a beaver or conquer a bear, or in the most civilised condition, when man makes the elements by his ships and steam-engines contribute to his subsistence. As society is developed he is able to perform all the duties the changes impose on him, in order that he may be happy on the earth which the God of his fathers has given him, with ease and perfection. He ploughs the ground around his habitation, sails his ships over all the oceans of the globe, offers with plainness and simplicity a skin in one hand, and holds out the other for the hatchet he is to receive in exchange for it, and organises a universal system of credit to facilitate production which is quite marvellous; he makes steam-engines and power-looms, grows corn, and manufactures cloth; he soars in the air, and runs on the earth untired, with more than the velocity of the courser; he raises metals from the deepest recesses of the earth, converts stones into a running fluid, and guides it into the smallest openings, casting delicate ornaments for ladies, or into the most solid masses, making one compact beam of many tons; he makes machinery which unites the stability of the human finger to the riving power of the thunder-bolt;—all these operations, many of which are absolutely wonderful, he performs with ease and without the tutelage of the law, or the help of the legal profession. Of the great natural functions of society each man can perform his own share unaided by the law and the Bar, and feel himself like a man fully competent to the task.
One of the most striking and important truths brought to light by political economy is, that law never interferes with the natural functions of society but to derange them. Its restrictions are not only injurious; they are also at once multifarious and incoherent. Plain men, therefore, cannot understand nor comply with them. Each man has in his own faculties the means of doing his duty easily to God and his neighbour; but his duty to the king and the parliament must be taught and interpreted to him by the legal profession.
Whenever our business brings us into contact with the law, we must flee for help to 2 man who professes to understand it, and who has helped to monopolise the interpretation of it by making it cumbrous and complicated. The profession takes property particularly under its especial care. For poverty it has no regard, it has only chastisement. The land a man tills, and the beautiful machines he makes, he can scarcely sell without a lawyer's help. Where property is concerned a child cannot be portioned, nor a marriage contracted, nor the accumulations of a family fairly dispesed of by the most enlightened common sense. It must be done by a lawyer. Whenever we have to walk amidst the intricacies which have been erected by the gentlemen of the Bar, we must supplicate the aid of one of their guiding hands, and must pay largely for the assistance. The most ignorant are competent to comprehend nature, and walk as she directs; but the wisest and most sagacious man is not competent without legal help to comprehend the laws of the land. The barristers, for their own purposes, hold the human race in tutelage. Mankind are made their wards. They are scarcely allowed to speak in their own behalf; they must not defend themselves; they must employ a barrister. To escape the wiles of one member of the profession they must fee another. If it be said that this applies to attorneys rather than barristers, the reply is, that the attorneys can carry no suit to a conclusion; and that the barristers, whom they instruct and fee are, for a fee, the ready instruments of their dirtiest work. Thus designedly or undesignedly the members of the profession do in fact make business for each other, and gather wealth by enclosing industry in their toils. The productive classes are their legal prey.
We have not adverted to the often-repeated reproach that they are so habituated to speak for an object, that they forget the distinction between truth and falsehood. We have said nothing of the common practice amongst barristers in repute, of taking the fee of a client, and for the sake of the larger fee of another client, consigning the first, though his fee was given expressly on account of the great talents of the barrister retained, to some inferior journeyman. Neither have we adverted to the still mere disgraceful occurrence, not unfrequent, of barristers changing sides, being put into possession by a client's attorney of all the weak and strong points of a case, and afterwards accepting a brief from the opponent. We have said nothing of such cases as Mr. Philips knowing Courvoisier's guilt, and yet laying the crime by insinuation at the door of those he knew to be innocent. We have been silent on Sir Fitzroy Kelly, honoured by kindred minds, who prostituted the power of the Crown to their own licentious uses—weeping over the misfortunes of the injured Tawell. We have said nothing of a skilful barrister gathering a quarter of a million in a few short years, by playing the "artful dodge"[1] with affidavits, so that no judge would trust the reading of them to him; and by continually taking fees for services that were never performed. We have been silent on many practices common to barristers, with other seekers after fame and fortune by crooked ways, but particularly reprehensible in those who assume airs of superiority, and cry out against honest exertions that have no tinge of meanness, avarice, or corruption. We have dealt in no vulgar prejudices; we have considered the profession as it is necessarily made by the principles of its being.
Barristers according to these views are rather the stone which bruises than the balm which heals. They are the oppressor's helps; the tyrant's servants; they are the perverters of law supposing it to be good; and they are ministers of all its evils: they form no part of the natural system of society. As men they are Nature's children; as lawyers, she disowns them. They arc ligatures impeding the growth, and issues drawing off the life blood of society; they remove no inconvenience; they create no convenience. A physician or surgeon assuages pain, and may be a comfort to his patient: lawyers are only plagues, and even those who use them for bad purposes receive their services with impatience; they neither feed, clothe, instruct, nor cure their fellows; they are the offspring of conquest, oppression, and wrong, and their lives are past in supporting the cause of their parents. As a profession and only as a profession we have spoken of the Bar; as a body united into an exclusive corps, monopolising the study and the administration of the law, bound to use that as the instrument of their own advancement, and bent on making it the means of gathering wealth,—perverting it when good, maintaining it when bad, at all times teaching a reverence for it above truth and justice, making, as far as the profession can, slaves of other men or using them for its own purposes, the Bar is now and has been at least since the time of Cromwell one of our social plagues; for Parliaments when disposed to do right it has been too strong,—even the awful Protector succumbed to the Sons of Zeruiah. We hope and believe that the profession will not be found too strong for the Press and the people.
From this profession, socially mischievous but politically dignified, the highest officers of the State are selected, and it seems a full explanation of much public turpitude to know that an educated barrister is the keeper of the royal conscience, and the arbiter of State morality. Woe to the people who suffer their intelligence to be cramped by such a body as the Bar confining them to the morality and the rules laid down by the ignorance of a past age. England owes her greatness to her partial emancipation, by the continual extension of arts and knowledge, from its dominion. Let us hope from the quarrel which has suggested these observations that the profession which monopolises the guidance of mankind, in civil affairs, is destined speedily, and for ever, to be deprived of power.
1. While we are writing,—a poem with a very curious title, the "Purgatory of Suicides," has fallen under our notice. It is by Thomas Cooper, called the Leicester Chartist, who was imprisoned in 1842 on a charge of seditious conspiracy, and who wrote the poem while in prison. In his preface, is the following passage. After describing his trial, and his being brought up for judgment, he says:—
"Sir W. Follett, who again used his decaying strength the hour before judgment was passed upon us in the Bench, pointed to me with an austere look, and said, 'This man is the chief author of the violence that occurred, and I conjure your lordship. to pass a severe sentence om Cooper.'
"Scarcely three years have passed, and the great lawyer is no mare. He wronged me, but I think of him with no vindictive feelings, for my imprisonment has been to me a nobler source of satisfaction than he could ever derive from all his honours. He amassed wealth, but the Times, alluding to the frequent unhappy disappointments occasioned by Sir W. Follett's non-attendance on cases he undertook to plead, says, 'So often did they occur, that solicitors and clients in the agony of disaster and defeat were in the habit of saying that Sir William often took briefs when he must have known that he could not attend in court; and as barristers never return fees, the suitor sometimes found that he lost his money and missed his advocate at a moment when he could hardly spare either.' I am poor and have been plunged into more than 200l. debt by the prosecution of my enemies; but I have the consolation to know that my course was dictated by heartfelt zeal to relieve the sufferings and oppressions of my fellow-men. He was entombed with pomp, and a host of titled great ones of every shade of party attended the laying of his clay in the grave, and they propose now to erect a monument to his memory. Let them build it, the self-educated shoemaker has also reared his, and despite its imperfections he has calm confidence that, though the product of poverty and suffering and wrong, it will out-last the posthumous stone block that may be erected to perpetuate the memory of the titled lawyer."
We quote the passage as one evidence amongst many that the profession is becoming universally estimated at its intrinsic value.