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cussion that would have done credit to a silk gown.
Various circumstances, which it would be painful to particularize, have tended to disincline me for actual
professional practice, which, although attended with its advantages, is on the whole, I believe, not worth desiring, and greatly beneath the level of a man of true genius. Not but what I should be willing enough to undertake the business of any of your friends or others, if particularly pressed upon me, and made worth my while; but, generally speaking, I feel quite indifferent as to either employment or emolument. I will not, however, yield to any member of the profession in a sense of its dignity, or a zeal for its advancement, and it is from these motives that I at present take up the pen. The legal profession, Mr North, has for ages been shamefully calumniated ; in public or in private, in books or in conversation, on the stage or at the hustings, no jest is generally so ready or so acceptable as a wipe at the lawyers. They are denounced as the most mercenary, while in truth they are the most liberal, of mankind; as the most impudent, while they are the most modest; as the most tricky and treacherous, while they are the most fair and upright. Of their modesty and disinterestedness I may take another opportunity to speak; I propose at present to confine myself to their vindication in reference to the third charge that I have noticed.
It must be confessed, that the practice of the law leads occasionally to a good deal of verbal criticism and nice analysis. But it is utterly unjust to lay these faults, if faults they be, at the door of the lawyers, when they are in truth the legitimate progeny of human nature in general, and not of our profession in particular. In every town and hamlet in the kingdom, in all conditions and situations, innumerable persons are to be found, of every age and either sex, who possess the whole faculty of quirking and quibbling in the most consummate perfection. The same thing exists, and has existed in all ages and countries, civilized or savage; and, if these qualities are to be considered in any way characteristic of the legal profession, there are innumerable people in the world who have every thing of the
lawyer about them, except his phraseology. In this view we might justly exclaim, in the spirit of a great living poet,
"O many are the lawyers that are sown
The quibble and the fallacy refined:
Of lectures, or the inspiring food of inns ;
By circumstance to take unto the height The measure of themselves for wig and gown,
They go to the grave unheard of."
But, in truth, the propensities to which I refer are, as I have said, neither a product nor a peculiarity of forensic pursuits. The lawyer may reduce them into method and system; he may give names to his tools, and acquire a readier facility of finding and of handling them when they are wanted.
But he does not invent or make them; and common life furnishes daily instances of those who, by the force of native genius, can cast all his rules into the shade, and "snatch a grace beyond the reach of art." The lawyer and the fencing-master have a near resemblance to each other; both of them acquire a technical facility which surpasses the average power of uninstructed talent; both of them invent a vocabulary of their own, to express the operations with which they are familiar; but both of them merely improve upon nature, and it is just as inherent in humanity to quibble and equivocate, as it is to thump or thrust. Let me add, that the legal profession ought to complete the parallel by chiefly performing its functions as a science of self-defence, by means of which the natural devices and subtleties of men may be parried and returned upon themselves, and the crafty foiled at their own weapons.
I propose in this paper to take a pretty comprehensive review of human history and manners, in order to demonstrate the universal prevalence of verbal frauds and evasions among all classes of laymen, to a degree far exceeding what is known or imagined among lawyers; and to establish incidentally, at the same time, that the
science of the law, instead of suggesting or promoting such deceptions, is chiefly occupied in extirpating or retrenching them. I shall not here trouble myself to reduce my examples to distinct categories, but shall give them as they come to hand. I begin with some striking instances from ancient history, where the "prisca fides" appears often to have been of the most unprincipled description in ages and countries in which lawyers had never been heard of.
There is some propriety, perhaps, in beginning the list with a Carthaginian anecdote; though the Punic faith of later times seems generally to have been content with an open violation of fair dealing, without even the cloak of an equivocation to cover it. The foundress of Carthage, however, com. menced on a different plan. Virgil, who, with all his Italian prejudices, intended undoubtedly to represent Dido in an amiable light, has only slightly touched upon her purchase of the site for Carthage in these general words,
fact, bought, for a small price, as much land as could be enclosed with a bull's hide, (in the terms, we presume, mentioned by Virgil,) had the ingenuity to cut the medium of measurement into slender thongs, and thus acquired a very large tract of country for an old song, contrary to the manifest good faith of the transaction. Ancient writers have much puzzled themselves about the origin and etymology of the name of Dido, which appears to have been superadded to the lady's earlier appellation of Eliza, some assigning one explanation of it and some another. An ingenious philological friend has happily suggested to me that it may have referred to the transaction we have above noticed, and may be closely connected with the English word "diddle" '—a phrase so appropriate to the true character of that proceeding. He also observes, that the story may have led to the old English term of a hide of land.
Having mentioned the name of Virgil, I am naturally induced to notice a very unworthy quibble to which that mortal Epic. I allude to the terms great poet has descended in his imand fulfilment of the prediction of the Harpies, denounced against Æneas on occasion of his unwarrantable attack upon their property and persons.
Dryden thus translates the passage, though not, perhaps, quite accurately, as mensas might be considered more properly to mean tables than plates:
"High on the craggy cliffs Celano sate,
What! not contented with our oxen slain,
But know that ere your promised walls you build,
When we look to the formal and formidable manner in which this prophecy originates, delivered by Jupiter himself to Apollo, and repeated by the God of Oracles to the Queen of the Harpyian Furies, for announcement to the Trojans, it is impossible, in the first instance, not to believe that something very dreadful is intended, and that the unhappy wanderers are really destined to devour their own maho
gany, an anticipation which the manifest consternation of the pious Æneas and his respectable father tends strongly to confirm. The feelings, however, both of lawyers and of laymen, are utterly outraged by the actual denouement; according to which, the Tro jans, having served up their dinner upon flour-scones, proceed to make up for their short commons by a tug at their trenchers :
"Heus! etiam mensas consumimus, inquit Julus,
EN. VII. 115.
"Ascanius this observed, and smiling said,
Not to discuss the propriety of sus-
The system, indeed, of ancient oracles and predictions, was to a great extent based upon the same foundation: though it further summoned to its aid that important principle of our nature, which, out of the most ambiguous indications or the most unmeaning sounds, can extract the prediction that is most flattering to its desires. The
rule that the wish is father to the thought, or that "as the fool thinks the bell clinks," has had a wide influence in human affairs, both before and since the days of Whittington, and often with a very different result from what we are so pleased to meet with in the case of that worthy citizen. When the Delphic priestess foretold to Croesus, on the eve of a military expedition, that he was marching to destroy a great army; or announced
NO. CCXC. VOL. XLVI.
to Pyrrhus, in the freedom of metrical or idiomatic involution, that
"The son of Eacus the Romans would subdue ;"
or assured some other embarrassed ap-
"The oracles are dumb,
But man still finds in his own self-
In the department of prophetic predictions, a stronger illustration of gequine hair-splitting than any we have mentioned, may be found nearer our own door. I allude now to the representations made by the witches to Macbeth in Shakspeare, an author whom I always assume to be equivalent to history. Those representations are characterised by the worst possible faith, and would never, in a court either of
law or of equity, be held to be sufficiently fulfilled. The prediction that “none of woman born shall harm Macbeth," is a plain guarantee against injury, if not from any individual whatever, at least from any son of a woman. We demur entirely to the doctrine that a child brought into the world by the Cæsarean operation is not born of his mother; and have a strong notion that Macduff would not have been so ready to disclaim his being so "born," if the question had arisen as to his right to take the Thanedom of Fife, under a destination to Margaret Macduff his mother, and the eldest son lawfully born of her body. It is pretty plain that no court of law would have sustained any objection to his right of inheritance, in respect of the mere manner of his birth; and I doubt whether any practitioner at or around the bar, would be got to advance the plea. As the matter turned out, it seems perfectly clear that Macbeth or his representatives had a good action against the witches for deceit. The same may be said of the other security which was offered, that Macbeth should not be defeated "until great Birnam wood to high Dunsinane hill shall come against him." Nothing can be more untenable than the attempted mode of evading this solemn assurance, by the mere marching of Malcolm's men with each a green bough before him. The merest tyro in an attorney's office, would see that the separation of the branches from the trees entirely destroyed their character as a wood. From that moment those branches ceased to be any part of the real estate, and would have belonged to the executors as personalty. On the whole, it is manifest that Macbeth was a most ill-used individual, and might well exclaim:
σε And be these juggling fiends no more believed,
That palter with us in a double sense; That keep the word of promise to our ear, And break it to our hope."
He would have been differently treated if he had been dealing with the legal profession.
I return now to the subject of bargains or contracts, with which I began, and from which a reference to Virgil has led me away. Í shall here give a
few instances of verbal evasion, from a class of men, who of all others may
be considered to have the least community of feeling with the vocation to which I belong. I mean the military, who generally, as far as I can dis. cover, affect to hold us in great contempt, and towards whom there is a pretty tolerable, though often a suppressed feeling of hearty detestation on our side. At least for myself I can say that I am never in company with these scarlet-robed gentlemen, particularly in the presence of ladies, without a most uncomfortable feeling of indignation, at witnessing their easy and successfulimpudence, and a strong wish, if prudence permitted, to transfix them on the point of their own breadtoasters. Considering, therefore, the little love that is thus lost between us, I think I cannot more effectually vindicate the men of law from the charge of a peculiar tendency to equivocation, than by showing the prevalence of that passion among those whose business it is to fight with more substantial weapons. I take my instances here chiefly from remoter scenes of history, as in later times the legal labours of Grotius and Puffendorff have been the means of introducing better faith into military transactions. Most of the instances are so flagrantly hostile both to law and to justice, that I shall give them without any comment. Excuse me, if they are not arranged in proper chronological order.
Cleomenes the Spartan, having made an armistice with the Argive army for seven days, fell upon them during the third night, and killed and captured a great number of them while they were fast asleep, in reliance on the truce. When reproached with his perfidy, he urged in his justification, that he had made a truce for seven days, but had not agreed for the nights also.
Temures promised the garrison of Sebastia, that, if they would surrender, no blood should be shed. The garrison surrendered, and Temures buried them all alive.
A promise to deliver prisoners, says a lawyer, implies that they shall be delivered living; not that they shall be first put to death, and then delivered, as was once done by the Platæans.
Labeo, the Roman general, having overcome Antiochus, stipulated as a condition of peace, that he should be
entitled to carry away the one-half of Antiochus' ships; this having been agreed to, he cut each of the ships in two, and carrying off the one-half, destroyed the king's whole navy.
A Roman officer, taken prisoner by Hannibal, was allowed to leave the camp on a promise that he would speedily return. Just after leaving, he returned on pretence of having forgotten something, and again went away. He then repaired to Rome, maintaining that his original promise to return, having once been performed, was no longer in force. The censors, however, would not sustain his plea, but fixed a stigma on him for his breach of engagement.
Tacitus tells us a story of Rhadamistus in Asia Minor, who, having besieged his uncle Mithridates, prevailed on him to leave his fortifications, by a promise that he would never hurt him either with steel or poison, which was ratified by a very peculiar method of lashing their thumbs together till the blood came. assurance Rhadamistus affected rigorously to fulfil, but thought himself at liberty to tumble a huge wardrobe of clothes on his unsuspecting uncle, which fairly smothered him.
Aryandes, treating with the Barcœans, brought their ambassadors to a place prepared for the purpose, where he swore to observe the treaty as long as the earth on which they stood should continue firm. He had placed them on a pit having a trapdoor covered with earth, which he lost no time in removing; and having thus, as he conceived, terminated the treaty, assailed his allies sword in hand, while wholly unprepared for an attack.
In more modern times, a distinguished Spanish general, having bound himself by oath never to fight against the French army, whether on foot or on horseback, took the field against them at the battle of Rocroy in a sedan-chair.
The same disposition to deception, by verbal cavilling in oaths and obligations, is to be found in other classes of men, wherever self-interest is the prompter. The celebrated magician Nostradamus, having, in return for the gifts of magic, stipulated that the devil should have him if he was buried either in the church or out of it, evaded the condition by having himself buried in a hole in the wall. It
appears, from the histories of magic, that the devil has often been outwitted in a similar way by other persons than lawyers.
Herodotus gives us an anecdote of which Cervantes has since transferred the scene to Barataria, under the government of Sancho. Archetimus of Erythræa having made a journey to Tenedos, availed himself there of the hospitality of Cydias, with whom, for the sake of security, he deposited a sum of money which he had with him. Cydias, when requested to render up his trust, declined to do so, finding it more convenient to retain it. The parties went to law; and whether from the want of witnesses, or from the law of Tenedos resembling that of our own country, in allowing debts of this kind to be proved only scripto vel juramento, the case came to be referred to Cydias' oath. Cydias was too much of a knave to confess the truth, and too much of a coward to tell a bold lie, and devised the contrivance of concealing the cash in the hollow of a walking-cane, which he put into Archetimus' hands before taking the oath. He thereupon swore, that, although he had received the money in question, he had afterwards given it back. This was obviously what your lawyers would call an intrinsic quality, and, if the matter had thus been allowed to rest, was sufficient for Cydias' liberation. The fraud was detected, as Herodotus tells us, not by the ingenuity of the judge, or any cross-questioning by the plaintiff, for which there was ample room, but by the accident of Archetimus in his rage throwing down the stick with such violence as to break it, and bring at once the truth and the treasure to light. The old historian imputes the discovery to Divine Providence; and adds, that Cydias ultimately came to an unhappy end, which it is to be hoped was the case. It is certain, that upon such a state of the facts being established, under an indictment for perjury, any judge on the bench would have charged the jury to convict.
Many similar examples might be cited of the propensity I am here considering; and if in more recent times I were to resort to the writings of the Jesuits, I should be able to show a power of equivocation which would leave all other classes at an immeasurable distance. Those gentlemen