Law and Lawyers in Literature

A NOVEL or a play without a lawyer in it is rare and unconventional. Wills have to be made, criminals to be tracked, and family secrets to be ferreted out or locked up in the incommunicable bosom of the legal adviser. Somewhere or other in its development the literary worker finds a fillip for his story, if not a basis for all of it, in the tangles and mysteries of jurisprudence. Many resources of both scenery and character are opened to him by the law ; but not content with the legitimate advantages which it affords, the unscrupulous littérateur twists and tortures it to suit his purpose, without regard for its letter or its spirit. When necessary, indeed, he creates a judicial system entirely and peculiarly his own, and under it adjudicates for his litigious puppets with a license which reflects less credit on his knowledge than on the ingenuity of his imagination.

This is one of the aspects of literature in its relation with law which Mr. Irving Browne writes of in his recent volume,1 and he shows that it is not the minor novelists alone who err. Some of the greater authors are as absurdly inaccurate as those of little note and the reckless young ones, who take a cavalry dash at all things, and are not in the least shy of the wildest improbabilities. Trollope, Reade, Lever, Fenimore Cooper, Samuel Warren, and the late Lord Lytton are among the offenders whom Mr. Browne quotes, though it is known that the author of The Caxtons, on one occasion at least, took the precaution, which may be commended to all storywriters, of submitting his hypothetical case to counsel. The law has many pitfalls, indeed, for those who attempt to explore its mazes without some professional knowledge of them ; and when the author involves his characters in a lawsuit, he usually involves himself in a variety of grotesque errors. Mr. Browne singles out for exception a story by Mr. P. Deming, published in The Atlantic Monthly for April, 1882, of which he flatteringly says, “ I have never read anything more correctly realistic.” But the law of most story-writers is little different from the comical judges and juries of Mr. Gilbert’s travesties.

Mr. Browne’s book is not exclusively devoted to the legal solecisms of careless writers of fiction, however. It embraces extracts from the chief dramatists, historians, essayists, and moralists who have written or spoken about law and lawyers. It contains extracts from Juvenal, Aristophanes and Ammianus Marcellinus, Wycherley and Emerson, Napoleon Bonaparte, Miss Edgeworth, and Cruikshank’s Comic Almanacks. “The law and the lawyer,” says the compiler, “ have oftener been the subject of animadversion and ridicule on the stage than any other class and profession. . . . Perhaps the playwrights, themselves originally ostracized, desired to bring down a powerful class to their own level. . . . The vulgar playwright, supplemented by a vulgar actor, never fails to bring down the house by caricaturing an attorney. We will not waste our time over him, but will review the more respectable dramatists, and their method of portraying our subject.”

Mr. Browne takes the slurs which have been cast upon his profession very much to heart, and in a triumphant manner he remarks that, in proportion to the carelessness and indifference, or the hostility and envy, with which learned men are regarded when they are not wanted, are the slavishness of the dependence and the implicitness of the trust which are shown when their services are necessary. “ 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 from 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.” So, too, the clergyman who has been called a hypocrite, and the physician who has been called a murderer, are hurriedly summoned and respectfully listened to the moment that sickness and death threaten.

But though Mr. Browne ignores “ the second-rate novelist ” and “ the vulgar playwright,” he seems to have found little in praise of lawyers elsewhere ; and an imposing number of the authors whom he quotes revile and satirize the delays, quibbles, and sordidness of the profession. Judged by his work, the novelists and dramatists deal gently with the knights of the coif, compared with the poets, moralists, historians, and essayists.

The poets quoted are almost without exception scornful. Juvenal describes a lawyer who, with “ pick-lock tongue, perverts the law ; ” and Quarles, speaking of the golden age, says, —

“ There was no client now to wait
The leisure of his long-tail’d advocate.”

Sewell, in his tragedy of Sir Walter Raleigh, refers to “ the unskilful lies, hot from his venal tongue,” uttered by a lawyer; and Boileau excuses himself for his desertion of law by asking, —

“ Can I in such a barbarous country bawl,
And rend with venal lungs the guilty hall;
Where innocence does daily pay the cost,
And in the labyrinth of law is lost;
Where wrong by tricks and quirks prevails o’er right,
And black is by due form of law made white ?
E’er I a thought like this can entertain,
Frost shall at midsummer congeal the Seine.”

Thomson, also, is unflattering, and writes of the toils of law, which “ dark insidious men ” have perverted to “lengthen simple justice into trade;” Swift has his fling, both in prose and verse ; Southey was fond of associating the devil and lawyers ; and few things ever written have been as savage as Shelley’s lines to Lord Chancellor Eldon. Coleridge wrote a somewhat coarse epigram against lawyers; and Moore, describing a visit of the devil to London, says, —

“Away he posts to a man of law,
And oh, ’t would make you laugh to’ve seen ’em,
As paw shook hand, and hand shook paw,
And ’t was ‘ Hail, good fellow, well met’ between ’em.”

American poets have had little to say about the law, but of the only two mentioned by Mr. Browne one is Bryant, who, referring in some verses to his early experiences in a law office, regrets that he is

“Forced to drudge for the dregs of men,
And scrawl strange words with a barbarous pen,”

a drudgery from which he was fortunately relieved.

The chapter in which are embraced the sayings of moralists, essayists, historians, and satirists contains a few complimentary quotations, but here, again, are many gibes at the law. Ammianus Marcellinus speaks in his Roman history of lawyers as “ that tribe of men who, sowing every variety of strife and contest in thousands of actions, wear out the door-posts of widows and the thresholds of orphans, and create bitter hatred among friends, relations, or connections who have any disagreement.” Napoleon describes lawsuits as a social cancer. “ My code,” he adds, “ had singularly diminished lawsuits, by placing numerous causes within the comprehension of every individual. But there still remained much for the legislator to accomplish. Not that I could hope to prevent men from quarreling, — this they have done in all ages ; but I might have prevented a third party in society from living upon the quarrels of the other two, and even stirring up disputes to promote their own interest. It was, therefore, my intention to establish the rule that lawyers should never receive fees except when they gained causes. Thus, what litigations would have been prevented ! ” Richard de Bury, Bishop of Durham and Lord Chancellor of England under Edward III., said of lawyers that they “ indulge more in protracting litigation than in peace, and quote law, not according to the intention of the legislator, but violently twist his words to the purpose of their own machinations.”

In this chapter, however,Mr. Browne manages to elicit some eulogy out of the authors whom he has consulted. Sir Philip Sidney recognizes in the lawyer one who “ seeketh to make men good. . . . Our wickedness maketh him necessarie and necessitie maketh him honorable.” Owen Feltham, speaking of the profession, says, “ They have knowledge and integrity, and being versed in books and men, in the noble acts of justice and of prudence, they are fitter for judgement and the regiment of the world than any men else that live.” Burke attributed the untractable spirit of the American colonists in a large measure to their general study of the law, which, he says, “ renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an illprinciple in government only by an actual grievance ; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze.”

De Tocqueville has the most exalted opinion of American lawyers. “ The special information,” he says, “ which lawyers derive from their studies insures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. ... If I were asked to place the American aristocracy, I should reply, without hesitation, that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and bar.” Again, contrasting American lawyers with others, he says, “A French observer is surprised to hear how often an English or American lawyer quotes the opinion of others, and how little he alludes to his own; while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed, and the fundamental principles of law are discussed in order to obtain a perch of land by the decision of the court. This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.”

But, as Mr. Browne truly says, if this friendly critic had an opportunity to observe the workings of the American courts at the present time he would find occasion to change his opinion. The “ opinion of our forefathers ” receives little respect, and the decisions of the highest courts alter the rules of law on nearly every given point from year to year; nay, even from one term of court to another, and on the gravest constitutional questions.

We have already called attention to Mr. Browne’s solicitude for the good name of his profession. Whenever he discovers a word in behalf of it, he refers to the author with reciprocal approbation ; but the kindly word is infrequent, and his interesting book shows that some very eminent persons have entertained as low an opinion of lawyers as the creators of the pettifogging attorneys whose vulpine proclivities season the inferior melodrama.

His work indicates that he possesses the compiler’s qualification of knowing where to look for interesting material; but when, as he frequently does, he constitutes himself a critic of the authors whom he quotes, he is not always successful. He is resolutely rancorous when he thinks that his profession has been unduly aspersed. One of the best scenes in A Modern Instance is confidently described as being “ tolerably exciting, but cheap ; ” the ever vivacious Lever is uncivilly compared to an old woman ; Lord Lytton is hastily classed as mediocre; Samuel Warren is disposed of as being “ an amiable and funny but rather mean-spirited barrister; ” and Fenimore Cooper, also, is dismissed as a second-rate person. Of Mr. Trollope Mr. Browne says, “ 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.” This may be offered as a specimen of Mr. Browne’s criticisms, which certainly do not add to the value of his book.

  1. Law and Lawyers in Literature. By IRVING BROWNE. Boston : Soule and Bugbee. 1882.