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THE LAWYER: A PEST OR A PANACEA?'
BY RANCIS M. BURDICK,

Professor in the School of Law, Columbia University.

T is not inappropriate, I trust, upon an occasion of this kind, to discover, if we can, the opinion which the world entertains of the legal profession, and to consider its accuracy. That this opinion has often taken an uncomplimentary form must be admitted.

One of the earliest expressions of this character, which has fallen under my notice, is that of Richard De Bury, Bishop of Durham, and Lord Chancellor of England, under Edward III. His views, set forth in the rather crabbed Latin of the fourteenth century has been rendered into English as follows: "Lawyers indulge more in protracting litigation than in peace, and quote the law, not according to the intention of the legislator, but violently twist his words to the purpose of their own machinations." Such criticism from a Lord Chancellor would seem, at first glance, to be entitled to serious consideration. It is to be remembered, however, that the English chancellor of that far away time was not a lawyer, but an ecclesiastic; and Bishop De Bury's translator notes that the church and the bar were not on good terms in those days. This was due to the fact, he tells us, that lawyers were often obliged to defend themselves and others against the rapacity of ecclesiastics.

A more violent antipathy to our profession is attributed by Shakespeare to Dick the Butcher, in Henry VI., where he proposes to Jack Cade that the first thing they shall do, upon Cade's becoming king, is to kill all the lawyers. To which Cade responds, "Nay, and that I mean to do." But these two worthies are represented by the great dramatist as arrant anarchists. All the realm was to be in common, declared Jack Cade, 'An address at the annual meeting of the New Hampshire Bar Association, held at Concord, February 29, '04.

and to drink small beer, after he became king, was to be made a felony. Naturally statesmen of such a stripe would hate lawyers.

Similar hostility has been evinced by great despots. The anecdote is told of Peter the Great, that on a visit to Westminster Hall, he was astonished by the imposing array of barristers and attorneys; and declared that he had had but two lawyers in all his realm, and one of them he had put to death. Napoleon, at St. Helena, characterized law suits as an absolute leprosy, a social cancer; and stigmatized lawyers as a class living upon the quarrels of others, and even stirring up disputes to promote their own interests. He virtually admitted, however, that he had not the courage of his convictions, while emperor, or he had not reached the point where he thought it wise to put into operation his plan for starving lawyers, by legislating that they should never receive fees, except when they gained causes.

But, perhaps, the most picturesque indictment of our profession is that found in Macaulay's radical war song of 1820:

"Down with your Baileys and your Bests,
Your Giffords and your Gurneys:
We'll clear the island of the pests,
Which mortals name attorneys."

That these English radicals were not the sanest of thinkers, however, is apparent from the next stanza of the song, which runs as follows:

"Down with your Sheriffs and your Mayors,
Your Registrars and Proctors.
We'll live without the lawyer's cares
And die without the Doctor's."

If these were the only criticisms upon the profession, we might dismiss them with the homely proverb,

"No man e'er felt the halter draw With good opinion of the law;"

or, we might add, of lawyers. But we are forced to admit that our profession rests under other and more serious reproaches. Sir Thomas More gave voice to one of the most severe as well as one of the most specious of this sort, in his account of the imaginary institutions of Utopia. Lawyers were excluded from that fabled commonwealth, he assures us, because they were looked upon, as a class, whose profession it is to disguise matters as well as to arrest laws. Therefore, the dwellers in that isle of fancy thought it much better that every man should plead his own cause and trust it to the judge, than to employ professional counsel, as the client does in other lands. By this means, we are told, "they both cut off many delays and find out the truth more certainly."

This phantasy of every man his own lawyer; of a judiciary so honest, so astute to detect the truth, so capable of discovering the real principle involved in every litigation, that the public and rival presentation of the opposite sides by skilled lawyers, is not only unnecessary, but positively baneful, has enjoyed a great but undeserved popularity. Several of our colonies were captivated by it, and their early legislation has the true Utopian ring. Virginia, in 1645, undertook to discourage lawyers by forbidding them to take fees. Massachusetts showed her distrust of the profession, in 1663, by excluding lawyers from membership in the "Great and General Court" of the province. The fundamental constitution of the Carolinas declared it a base and vile thing to plead for money or reward. It prohibited anyone but a near kinsman to plead another's cause, until he had taken an oath in

open court, that he had not directly or indirectly bargained for money or other reward, with the party for whose cause he was to plead.

The result of this colonial legislation was quite different from that anticipated by its Utopian sponsors. It is admirably caricatured by Irving in Knickerbocker's New York. The redoubtable governor, Wouter Van Twiller, is the central figure of the picture, the judge before whom each party pleads his own case and to whose enlightened sense of justice the decision is committed. An important burgher of primitive New Amsterdam explains to the Governor. that a fellow-burgher though largely indebted, refuses to come to a settlement. The Governor and Magistrate (for the judiciary had not yet been separated from the executive) "called unto him his constable, and pulling out of his breeches pocket a huge jack-knife, dispatched it after the defendant as a summons, accompanied by his tobaccobox as a warrant.” Brought into court by this summary, if primitive process, each party produced his books of account, plead his own cause, and, as we have said, trusted to the judge in true Utopian fashion. The sage Van Twiller "took the books, one after the other, and having poised them in his hands, and attentively counted over the leaves, fell straightway into a very great doubt, and smoked for half an hour, without saying a word. At length, laying his finger beside his nose and shutting his eyes for a moment, with the air of a man who has just caught a subtle idea by the tail, he slowly took his pipe from his mouth, puffed forth a column of tobacco smoke, and, with marvelous gravity and solemnity, pronounced his judgment. Having carefully counted over the leaves and weighed the books, it was found that one was just as thick and heavy as the other. Therefore, it was the final opinion of the court that the accounts were equally balanced; that the parties.

should exchange receipts and the constable should pay the costs."

Although the veracious historian assures us that the decision diffused general joy throughout New Amsterdam, and that not another law suit took place during the whole of Governor Van Twiller's administration, while the office of constable fell into such decay that there was not one of those losel scouts known in the province for many years, this Utopian state of things was not permanent, either in New Amsterdam, or in the other provinces.

We have seen that the fundamental constitution of the Carolinas sought to prevent the growth of the legal profession, by prohibiting its members from rendering services for money or other reward. The charter was abundantly successful in this direction. Scarcely a lawyer of reputation made his appearance in these provinces while it was in force. But in every other respect it was an abject failure. Although the joint product of the Earl of Shaftesbury and John Locke, one "the first practical politician" and the other "the first philosopher of England," at that time, it has been characterized by all historians as a simple absurdity. The political system which it set up was clumsy, complicated and fantastic. It imposed upon a primitive community a body of laws devised by a practical politician and a philosophical thinker. So nearly perfect did their authors deem them, that all comments upon, or expositions of them were forbidden. The evolution of a legal system through private law suits was made impossible.

It pro

fessed to be framed for eternal duration; and it collapsed within a quarter of a century. While it endured, its fruits were turbulence, faction and failure. Scarcely had it been launched, before a leading colonist besought the proprietaries to send over “an able counsellor to end controversies and to put the settlers in the right way of managing the colony." Upon its overthrow, lawyers began

to multiply in the Carolinas. A simple and rude, but effective government grew up, and a legal system was developed, under which criminals were brought to punishment, life and property were reasonably secure and productive industry flourished. A more instructive object lesson in the evolution of law has never been afforded, than by this experiment of Locke and Shaftesbury. A body of legal rules, in order to be really serviceable to a community, must be of home growth. No statesman has ever been practical enough, no philosopher wise enough, to evolve from his inner consciousness a successful code. The English common law is far from perfect, either in the mother country or in this progressive republic; but it is alive with the spirit of justice; it quickly responds to the best moral sense of the people and its general tendency has ever been toward the truth. This is due very largely to the active and influential part taken by the bar of England and of America. in the development of our legal system.

During the latter part of the seventeenth and the early part of the eighteenth centurya change in the popular estimate of lawyers had taken place, not only in the Carolinas, but also in Virginia, in New York and throughout New England. Massachusetts no longer excluded them from membership in her Great and General Court. The Governor of New York could no longer dispose of law suits in the Van Twiller style. When Governor Cosby, in 1732, secured the indictment of Peter Zenger, the publisher of the New York Weekly, for crimnal libel, the accused did not try the Utopian experiment of pleading his own case, and trusting it to the judge. On the other hand, he secured the services of the foremost lawyer of the colonies to combat the view then generally entertained by the judiciary, that the only function of the jury, in a trial for criminal libel, was to say whether the libel had been published or not. In Zenger's behalf, An

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drew Hamilton, the leader of the Pennsylvania bar, eloquently contended that truth was a justification if the words of the libel were not scandalous or seditious. He won his case. Zenger was acquitted. Hamilton, we are told, was presented with the freedom of New York City and departed for his Philadelphia home, amid the firing of salutes in his honor. It was an honor well deserved, for he had won the first fight for the freedom of the press in America, thus anticipating by nearly half a century, the great victory of Erskine and Fox for the freedom of the press in England.

So radical was the change in public sentiment towards law and lawyers, that Burke, in his great speech on Conciliation, named as one of the six capital sources of the fierce spirit of liberty among the colonists, the widespread taste for legal education.

"In no country in the world," said he, "is the law so general a study. The profession itself is numerous and powerful, and in most provinces it takes the lead. The greater number of the deputies sent to Congress were lawyers." General Gage had reported he observed that all the people in his government were lawyers or smatterers in law, and that in Boston they had been enabled by successful chicane wholly to evade many parts of the most important penal laws of Parliament. This study of the law, added the philosophic statesman, "renders ten acute, inquisitive, dextrous, 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 ill principle 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 tyrrany in every tainted breeze."

It was not strange that the American colonists had ceased to look upon lawyers with suspicion, and had come to follow them.

as leaders. The questions of vital importance now were legal questions. Were the colonists taxable by a government in which they had no representation? Were their persons and property seizable under general warrants? Could the legality of an arrest be inquired into under the writ of habeas corpus? These questions involved a knowledge not only of the constitutional history of the mother country, but of judicial precedents and of legal principles. Magna Charta, indeed, provided in express terms that no freeman should be taken or imprisoned, unless by the lawful judgment of his peers, or by the law of the land; but it was the writ of habeas corpus, framed by the liberty-loving lawyers, and "rendered more actively remedial by the statute of Charles II.," that gave life and vigor to that famous clause of the Great Charter. In Old England, it was John Hampden, the lawyer, who refused to pay the twenty shillings of ship money, because it was a tax imposed without consent of Parliament. True, the decision of the Royal judges was against him, but his sturdy defence of the legal rights of every subject made him the most popular man in England and cost King Charles his head. In New England, a century later, it was James Otis, the lawyer, who attacked the writs of assistance with such a wealth of legal learning, and such fiery eloquence, that the scene in which he figured in the old town house in Boston has been entitled the opening scene of the American Revolution. Such an impression did it make on John Adams, that he declared American independence was then and there born. According to this authority, our great republic had its genesis not at Concord nor Bunker Hill, nor yet in Independence Hall at Philadelphia; but in a lawyer's speech in a lawsuit.

Although the noble part played by lawyers in the great crises of constitutional history, among English-speaking peoples, is generally acknowledged, the popular view of our

profession, in matters of private law, is, I fear, still that of Richard De Bury and of Napoleon. We are charged with a disposition to protract litigation and to twist "the meaning of statutes to the purpose of our own machinations:" with living upon the quarrels of others and even stirring up disputes to promote our own interests. In short, we are deemed the parasites of society, living upon values but creating none. Is this a correct view? If it were, we ought to find those nations the happiest, the most peaceful and orderly, the richest and the most progressive, in which the legal parasites are the fewest. But the actual state of things is just the opposite of this. China has no lawyers. In Russia the proportion of lawyers to population is one to thirty-one thousand. In Germany, one to eighty-seven hundred; in France, one to forty-one hundred; in England, one to eleven hundred; in the United States, one to seven hundred. These statistics would tend to show that the legal profession is a blessing rather than an evil; that its members are not parasites of society, but, on the other hand, if not direct creators of values, that they are the protectors of those engaged in production.

Let us examine the function of the lawyer with a view of discovering whether this interpretation of the statistics is correct. In 1670, William Penn and his companion, Mead, were tried at the Old Bailey, London, for an unlawful assembly. The officers of the crown used every possible effort to secure a conviction, and the judge openly threatened the jurors with punishment, if they dared to bring in a verdict of acquittal. Notwithstanding all this pressure, Penn and Mead were acquitted. Thereupon, the jury were fined by the judge for bringing in a verdict which he declared was against the evidence. One of the jurors, named Bushel, refused to pay the fine, was committed to prison, and sued out a writ of habeas corpus. Upon the return of this writ, a question of the highest

importance was presented by the counsel for Bushel. For more than four centuries, Magna Charta had affirmed that no freeman should be taken or imprisoned, or disseized, or outlawed or banished, unless by the lawful judgment of his peers. But, if the judge could fine the jury for bringing in a verdict, which was contrary to his notion of the evidence, trial by jury was a mere mockery. Not by his peers, not by an impartial jury of the vicinage, but by a judge appointed by the crown and removable at pleasure, was the guilt or innocence of a person to be decided. A matter of vital importance to the liberty of the citizen, it will be seen, was involved in this law suit of Bushel. Keenly was it appreciated and nobly was it argued by his counsel. The fine and the imprisonment were declared illegal, and "from that time forth the invaluable doctrine, that a jury in the discharge of their duty are responsible only to God and their consciences, has never been shaken or impeached." Not for Bushel only was the victory won by his lawyers, but for every juryman, and for every person accused of crime, wherever English common law obtains.

So Hampden's refusal to pay the twenty shillings of ship money and his defence of the suit brought for its collection, were not prompted solely by selfish considerations. He and his counsel were contending for a great principle. If the King had lawful authority to levy a tax of twenty shillings on John Hampden, then all private property in England was held subject to the monarch's will. Not whether the individual Hampden should pay a petty tax, but whether any property holder in the realm could deem his ownership secure, was the issue. Royal judges obeyed their master's commands and condemned Hampden to pay. Appeal was taken to the nation. Monarch and servile judges were overthrown. The rule of law contended for by Hampden was reëstablished, and has ever since remained a car

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