Law and lawyers in literature

Introduction

TT is my purpose to show how the Law and -*- the Lawyers have been depicted in Literature. I shall do this by extracts from the chief dramatists, novelists, historians, essayists, and moralists, with occasional notes of illustration, suggestion, or protest. There is, undoubtedly, and always has been, a tendency on the part of mankind to rail against and make fun of all the learned professions. To call the clergyman a hypocrite, the physician a murderer, and the lawyer a liar, has long been one of the favorite amusements of a numerically considerable part of mankind. Much of this is mere badinage, but a good deal is serious ; and in the portion that is not avowedly serious, there is frequently a grain of earnest. The mass of men do not love men who are able to get a living, and attain honors, without the use of money or muscle. The capitalist thinks very iv INTRODUCTION.

little of those who do not lean upon capital ; the merchant has no great respect except for the results of trade ; the mechanic is envious of one who is not obliged to toil with his hands. So, from all these classes, there is a continual undercurrent of chaffing of the professional men. They are only tolerated because and when they are indispensable. The clergyman is called in to scare away the terrors of sickness and death ; the physician is summoned to cure the pains and ills of life ; the lawyer is retained to rescue estates, to make wills, to defend against criminal accusations. Quite in proportion to the careless- .ness and indifference, or the hostility and envy, with which the learned men have been regarded, are the slavishness of the dependence and the implicitness of trust which are shown when the learned men become necessary or convenient. A man who is or imagines himself dying forgets the sport he has made of the clergyman's long face, sober dress, solemn ways, set speech, and quarrels with other sectarians, and has him in at once to pray over him. Even if he has neglected and scoffed at him all his life, he is pretty sure to want him toward the last. So, when a man has the gout or the stomach-ache, he forgets what he

INTRODUCTION. v

has merrily said about calomel and high dilutions, the fatality of medical councils, the appropriateness of the doctor's heading the funeral procession, and the like, and shrieks for the doctor in a roaring hurry. And so when a man wants a contract or a will drawn, or to sue, or to defend a suit, or to get rid of his wife, or to prevent his wife's getting rid of him, or to rescue his own estate, or to capture somebody else's, he retains legal counsel, and forgets all about his long speeches and long bills, his wig and his gown, and his green bag, his willingness to serve the first paying comer, and his zeal, which, like the affliction of the hired mourner in the East, is at the service of his client without much regard to his deserts. Men must have somebody to laugh at and abuse, and they do not always restrict themselves to the learned professions in this regard. There are certain tradespeople who serve a like purpose ; as for example, undertakers and plumbers, who are avoided as much as possible, but who must be sent for in a hurry when the waterpipes burst, or the pitcher is broken at the fountain. The Law and the Lawyer have oftener been the subject of animadversion and ridicule on the stage than any other class and profession. Pervi INTRODUCTION.

haps they have not suffered more abuse in general literature than the clergy, but the rascally attorney has always been a favorite • character in the drama. Perhaps the playwrights, themselves originally an ostracised class, desired to bring down a powerful class to their own level. The lawyer is better game than the physician, for it requires the wit of a Moli^re to make any thing of the latter; but the lawyer comes in play so handily that the vulgar playwright, supplemented by a vulgar actor, never fails to bring down the house by caricaturing an attorney. It must be admitted that a virtuous attorney would be of little interest on the stage. He is nothing but a lay-figure, even in Hogarth's " Marriage 4 la Mode." We are all familiar with the conventional attorney of the ephemeral modern drama. We must not waste our time over him. But we will review the more respectable dramatists, and their method of portraying our subject.

In like manner I shall not try to keep abreast with the absurdities which the crowd of modern light novelists and magazine-writers have endeavored to make pass for law. There are, however, occasional writings of this sort clever enough to deserve a passing allusion without warranting an

INTRODUCTION. vii

extended quotation or commentary. For example, the most graphic account of the deliberations of a jury on which there are eleven obstinate men, that has ever come under my notice, is to be found in a story in "The Century" magazine for November, 1881, entitled "Eli." The queer characters constituting the jury are admirably depicted ; and the various arguments which the eleven brought to bear upon the one are narrated with a knowledge of human nature that led me for a moment to suspect that the author is a lawyer, or has sat on a "hung" jury. Especially amusing is the device of the eleven to worry out the one by allowing ten to sleep, and another to argue with him, by turns, all night. But after all, this fine image with head of gold has feet of clay. What is the evidence upon which the eleven are so ready to convict the prisoner of robbery .■' The offence charged is the robbery of a bank-vault, the lock of which is found broken, but which experts say was first unlocked. Only two persons have keys, — the president, and the prisoner (who had recently taken the cashier's place, and performed his duties in his absence for a short time). On the night of the robbery, the prisoner, who was a fisherman, was seen at one viii INTRODUCTION.

o'clock coming across the fields from the direction of the bank, with a large wicker basket slung over his shoulders. He said he had been eelspearing. The president swore that he himself did not rob the bank. This is all the implicating testimony reported. None of the plunder traced to the prisoner, no sudden affluence, no suspicious conduct, no confession or significant admission. The prisoner proved a good reputation. This was the evidence on which eleven men proposed to convict their reputable townsman ! On such a case a jury might possibly disagree, but it would be eleven to one the other way. Really, the gifted author should have taken legal counsel before he wrote this clever story, just as Bulwer did before he wrote "Night and Morning."

Two other recent writers of fiction in magazine serials have tried their hands at depicting court-scenes : namely. Miss Woolson, in " Anne," in " Harper's ; " and Mr. Howells, in " A Modern Instance," in "The Century." Mr. Howells is cautious enough, however, not to describe a trial, but contents himself with opening a default in a divorce case. The rascally plaintiff — husband, of course — runs away, and institutes a suit in Indiana — of course, although it might as well have been in

INTRODUCTION. ix

Connecticut — for divorce for desertion, and gets his decree by default on service of process bypublication in the newspapers. Providentially one of these newspapers falls into the hands of the wife's friends ; providentially her father is an old lawyer up in Maine, who always hated the husband, and who starts by next train, and reaches the court just in season, is admitted on motion, makes an inflammatory speech, and providentially then and there tumbles down in a fatal paralysis. The scene is tolerably exciting, but cheap. Miss Woolson tells a wonderful tale of circumstantial evidence, — how a left-handed rascal's left hand found him out. All this is well enough for the readers of "Harper's " and " Century," but neither can be pronounced a great success so far as depicting court-scenes is concerned. In this respect, a little story, written by Mr. Deming of Albany, N. Y., and published in " The Atlantic " for April, 1882, is far superior. Indeed, I have never read any thing more correctly realistic. As the author is an old court stenographer, he had the advantage of knowing something of what he was talking about. But as nobody tumbles down in paralysis, or is discovered by his left-handedness, of course it is " dull " in comparison with the serials aforesaid.

X INTRODUCTION.

Of course I shall not include newspapers in the term "literature." For obvious reasons, I shall not say any thing against newspapers ; but they are not literature. They do have a great deal to say against lawyers, and very little in their favor. This is somewhat singular too : for as Napoleon said, if you scratch a Russian you find a Tartar ; so I believe, if you scratch an editor, you very often find a lawyer. Mr. Lecky attributes much of the force and influence of the modern English press to the strong infusion of lawyers in recent journalism. But these lawyer-editors are so powerful individually, and there are so many of them, that it is the part of discretion to let them alone. Their power is a surprise to me, however ; for the man who should stand on the corner of the streets, and utter his sentiments on any subject, political, legal, or moral, and would find no one to pay him any attention, will command wide-spread attention and considerable acceptance if he sets up as an editor, and prints the same sentiments. Such is the superiority of written to parol evidence. The nearest approach to a newspaper to which I shall pay any attention is "The Spectator." I am confirmed in this determination by a recent number of the London

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"Truth" newspaper. When a newspaper assumes superior correctness, not only by its name, but by its conduct, we are entitled to look for something a little above the ordinary in its representations of this subject. Yet in a recent number of this newspaper, we find a story not a whit behind the average newspaper in legal absurdity. A lawyer is called on by an utter stranger to draw his will, and is offered the executorship and a legacy of five hundred pounds for his trouble. This is in strict confidence and secrecy ; because the testator proposes to cut off his family, and substitute his valet as beneficiary. The lawyer complies without any inquiries, and it does not even appear that any extra precautions in the execution are taken on account of the benefit which he is to take under the will. After this he gives the testator his check, for two hundred pounds as a loan. Of course, the testator is the valet in disguise. Of course, too, the affair comes out all right ; but it is on account of the superior shrewdness of the lawyer's clerk. So much for Mr. Labouchere, the editor who writes " I " instead of "we," and assumes always to tell the "truth."

I dp hot pretend that the following review is xu INTRODUCTION.

exhaustive. It does not present all that I have

found ; and doubtless there is much that I have

not found. But I hope that there is enough set

forth to give the outlines of the portraiture, and

to amuse readers who have any interest in the

subject.

I. B.

Albany, N.Y., December, 1882.