Various
Blackwood's Edinburgh Magazine, Volume 58, No. 359, September 1845
Mr Waterton repeats in the present volume the determination which he had expressed in his former Essays, not to appear again before the public as an author: – "It is time to say farewell, and to bid adieu to natural history, as far as the press is concerned." But we still hope that he may again be induced, on returning from Italy, whither we believe he has once more bent his steps, by some other cause than the death of a valued friend, to depart from this resolution. As he himself remarks with truth, in the preface to his first series of Essays, "we can never expect to have a complete history of birds, until he who undertakes the task of writing it shall have studied his subject in the field of nature," – and how little this has been attended to even in the ornithology of our own country, is sufficiently shown by the errors which, till of late, disfigured all the received works on this subject, and have been copied with implicit faith from one soi-disant naturalist by another. Since that kindred spirit Gilbert White, the first English naturalist who studied the habits of living birds in the open air, instead of describing the colours of the plumage of stuffed specimens in cabinets, we have had no one who has investigated the economy of animals, and particularly of that most beautiful class of the animal kingdom, the birds, so thoroughly con amore as Mr Waterton, in this and his preceding publications – identifying himself (it may almost be said) with their feelings and idiosyncrasies, and vindicating them from the aspersions thrown upon them in the writings of closet-naturalists, with the indignant zeal of a champion whose heart and soul is in the cause of injured innocence. Those who saw the sloth exhibited last summer in the Regent's Park Zoological Gardens, when at large and suspended by its huge claws to the under side of a branch of a tree, must have recognised the minute accuracy of Mr Waterton's account, in the Wanderings, of the habits of this animal, so much impugned at the time, because diametrically opposed to the statements of zoologists who had either never seen it alive, or seen it only when placed on a flat surface, a position which it never assumes in its natural state, and which its conformation renders one of extreme pain and constraint. Much animadversion has also been lavished by writers of the same class on Mr Waterton's sketches of British ornithology, as the facilities for observation procured by the security afforded to his protegés, and the unusual degree to which they have been consequently familiarised, have enabled him to overthrow many long-established errors – a thankless task at best, and which in some instances has not been rendered more palatable to those whose blunders were thus exposed, by the unsparing shafts of his raillery. But against all these antagonists Mr Waterton is very well able to defend himself, as the unlucky Mr Swainson and some others of his assailants know to their cost; and wishing him the full fruition for many long years of the bodily activity which enables him still to scale the highest tree in Walton Park to inspect a crow's nest, and not less of that irresistible naïveté and bonhommie which give such enjoyable zest to all his writings, we bid him for the present farewell – and if, in sooth, we are ne'er again to meet the Lord of Walton Hall in print, we scarce "shall look upon his like again!"
WARREN'S LAW STUDIES. 13
The readers of Blackwood who, month after month, followed with increasing interest the adventures of Titmouse, and the adversity and restoration of the Aubrey family, will excuse us if we apparently diverge from our usual literary course to track the author of "Ten Thousand a-Year" in a work which he has given to the legal profession, or rather to those who meditate entering upon that profession, or who have just set their foot upon the threshold.
Mr Warren's "Introduction to Law Studies" has already received the approbation of the public, testified by the sale of an unusually large edition. This has prompted the author to fresh endeavours to render it worthy of the peculiar place it fills, and of his own name; and he now, "after ten years of additional experience, (eight of them at the bar,)" publishes a second edition, "remodelled, rewritten, and greatly enlarged" – indeed so considerably altered and amplified as to be, in reality, a new work under the old title.
"In the present work," says the preface, "is incorporated one which the author has for some years meditated offering to the public, viz. an elementary and popular outline of the leading doctrines and practice of each of the three great departments of the law, civil, criminal, and ecclesiastical." The work, therefore, now consists of three distinct parts. 1. A general survey of the legal profession – a description of the nature of its several departments, of the various studies, labours, modes of life, of the conveyancer, the special pleader, the common-law and equity barrister, in order to guide the choice of a young man, who probably has hitherto a very confused notion of what, and how many different things, may be implied in the vague expression of "going to the bar." 2. A concise and elementary view of the several branches of the law which fall to the especial study of these several departments of the profession, as equity, the ecclesiastical and common law; and, 3. the recommendation of a course of study, pointing out the best books on each subject, and adding many useful hints to the young student on the discipline of his mind, and the acquirement of general knowledge.
To us it seems that such a work must be of very great utility, and that Mr Warren has given the most complete "beginning book" that was ever put into the hands of a young person seeking, or entering, a profession. It is not a publication which, as far as we know, replaces or competes with any other, but fills up a vacancy, and supplies a want which must have often been painfully felt. How can a young man, ambitious of entering the bar, know the nature of that profession into which he is so anxious to enlist himself? He goes into a court of justice, and sees men in their grotesque but imposing costume haranguing the judge and the jury, and without further thought he resolves that he too will be an orator and haranguer. Or what is more frequently the case, he reads the published speeches of an Erskine or a Curran, accompanied with memoirs of the men, and accounts of their forensic triumphs, and he burns to achieve the like actions, and to wield the same "resistless eloquence." But who is to tell him the nature of that territory, and by what manner of journey it is to be traversed, which lies between him and the gowned orator he is desirous of emulating? He sees the great actor on the stage, or hears of the intoxicating applause which he wins; but who is to conduct him behind the scenes, show him the apprenticeship he has to pass through, the hazards of failure, the impatience and tedium of unemployed energies – "the sad seclusion of unfrequented chambers, or the sadder seclusion of crowded courts?"14 How invaluable, at such a time, would be some kind good-natured friend, who had passed through the rough experience, who had sufficient remembrance of his own early mistakes and difficulties to comprehend all his bewilderment, and sufficient tolerance to endure being questioned on matters which to him have grown too trite and familiar to seem to need explanation. In Mr Warren's book he will meet with exactly the information he wants; he will find a chart of the profession unrolled before him; he may quietly test his own abilities, or his own courage, to adopt any of the several departments as they are submitted to his inspection. He will obtain all that he could gather from that kind good-natured friend at the bar, whom he has been longing for, and would so willingly seize by the button – nay, far more than he could gather from any one man who had not made the subject one of especial attention, and taken pains himself to collect information from various quarters. Besides, how infinitely agreeable is it, whilst yet a resolution is unripe, whilst yet it is the secret of our bosom, to be able to get our doubts solved, and our questions answered, from the silent pages of a book; to be spared the penance of exposing half-formed designs to the jocular scrutiny of our friends – to be permitted to consult without necessarily making a confidant – to be able to dismiss our thought, if it is destined to be dismissed, without betraying how dear a guest it has been.
The more youthful and less instructed of its readers will find every portion of this work useful to them; especially they will have reason to thank; the author for that facile introduction he has offered them to the study of the law itself. Never has been such a gently inclined plane set up, for weak and unsteady feet, against the hill of legal knowledge. The talent which Mr Warren has for familiar and elementary exposition is something quite peculiar. Nor will they fail to profit by his many practical hints for the discipline of the mind, and his advice as to their general reading. The student more advanced in years and in thought, and who entertains the project of entering the profession at a time when his mind has approached towards maturity, will perceive, and will have the candour to reflect, that much of the work was not written for him. But, on the other hand, he is the very person who will especially value it for that description of practical, familiar, but most necessary information, which it is rare to get from books at all – which to him it is peculiarly disagreeable to be compelled to extract piece-meal from chance conversation with men but half furnished with it, and perhaps impatient of the interrogatories put to them. What are the distinctions between the several species of the lawyer? What sort of an animal is, in reality, the conveyancer, or the special pleader, or the equity draftsman – what are its habits, where its haunts – how is it bred, how nourished – what process is he himself to go through, before he can be recognised as belonging to the class – how best may he set to work, and with least loss of time? – these are matters which he is very curious to know, and to him nothing is more welcome than to find them all explained in the printed page – to find them where he is accustomed to look for every thing, amongst his old friends the books.
Surprise has often been expressed at the fact, that there is no publicly appointed method of legal tuition, no lectures delivered on which it is compulsory to attend, not even any examination to be finally undergone before admittance to the bar. A little acquaintance, however, with the nature of legal studies, will soon dissipate this astonishment. There is but one way in which the law can be mastered; severe, steady, solitary reading, accompanied by the privilege of watching the real practice of the jurist in the chambers of the conveyancer or the special pleader. To one bent on the professional study of the law; lectures would be mere waste of time. To the idler they may bear the appearance, and bring some of the profit, of study; to the conscientious and resolved student, they would be an idleness and a dissipation. Where a subject admits of being oratorically treated, good lectures are extremely valuable; for oratory has its office in tuition, stimulates to reflection, and stirs generous sentiments, and we wish the oratory of the professor's chair were more cultivated amongst us than it is. Nor need we say that where the subject admits or requires the illustration of scientific experiments, lectures are almost indispensable. But in the tangled study of the law, where one must go backwards and forwards, as in a rope-walk, and twist one's own cable out of many threads – of what use can the lecturer possibly be? To teach us law in a fluent discourse, what is it but to have us feed – as the humming-birds are said to do – upon the wing? But even humming-birds feed in no such fashion; they sit down to their supper of rose-water. Much more must a lawyer have his table – his desk – fast before him; and spreading out his various fare, which needs a deal of mastication, feed alternately, and slowly and solemnly, on the several dishes which with ostrich stomach he has to digest.
As to the absence of all examination previous to an admission to the bar, the fact, that not only in our own inns of court, but in all similar institutions, such examinations have been allowed to dwindle into some empty and puerile form, sufficiently demonstrates their inutility. If an examination were appointed, it would be no test of the efficiency of the advocate; no sufficient guarantee to the ingenuous client who should wander into Westminster Hall in search of a lawyer. Not to add that the learned gentleman may have had ample time to forget all his legal knowledge in the interval between his call to the bar and the opening of his first brief. A license, indeed, is given to practise as an advocate, without any other qualification than that of respectability of character, and the payment of certain fees; but the case of no client is confided to the young orator, unless those who have the greatest interest in his competency are satisfied that he can be safely relied on. Men suffer their health to be trifled with by ignorant quacks and ridiculous pretenders – not their money. We need no Sir James Graham's bill in the profession of the law. Besides, it is not the good opinion of an uninformed public which the barrister has to seek or to depend upon. A lawyer, he is judged by lawyers. It is in the estimation of attorneys and solicitors that he must rise – not that of respectable ladies and nervous baronets. They stand between him and that unlearned public to which the physician, on the contrary, at once appeals.
The very circumstance, however, that there is no such public course of instruction marked out, and no prospective examination to be prepared for – that all is to be gained from that silent array of books which fill the long shelves of a legal library or from those chambers of the practitioner which, to those who look at them from without, seem as dark with mystery as they are with dust and smoke – this, we repeat, renders such a guide-book as that which Mr Warren has presented to the public, almost indispensable. In forming a critical estimation of his labours on this publication, it would be extremely unfair to forget, for a moment, the peculiar nature of the work. He is writing for the young. It is an elementary treatise. It is a book peculiarly practical; the very opposite of whatever is theoretical or speculative. If the style is somewhat more diffuse than we should on all occasions approve, we are far from regarding this as a defect here. The work, amongst other advantages, presents really a storehouse of that useful phraseology in which a public speaker should abound, that phraseology which lies between the familiarity of business and the pomp of oratory. And if, as we may perhaps be tempted again to remark, there is something too much of laudation of that profession and of that system of jurisprudence to which he is introducing the young aspirant, this too is a bias to which, in the present work, it would be ungracious to raise an objection. An elementary teacher should not chill and discourage his pupils by criticisms of a cold and censorious character; he should rather exercise his penetration in drawing into light concealed excellences. In this Mr Warren follows the example of the first of all commentators, the most successful of all teachers – Blackstone; who continues to be the most popular of all expounders of the law, even though the system that he expounds has almost deserted him. It seems that the law can be made obsolete, but not the commentary. With a pupil it is a thing understood and agreed upon that he is to learn the system as it now exists; to engage him to do this it were bad policy to decry that system, and expose its faults with a merciless analysis. When the student has mastered it as a lesson, he may then overlook and criticise it with what severity he thinks fit. We will quote a passage which will illustrate at once the lively manner of our writer, and also this happy Blackstonian tendency – the habit of animadverting very gravely on those errors of the law which have been reformed, and remaining still "a little blind" to those which are yet untouched.
"Down to the year 1832, the system of common law pleading and practice supplied the student, during the greater period of his pupilage, with little else than the most degrading and unprofitable drudgery. It presented to his despairing eyes a mass of vile verbiage – a tortuous complexity of detail, which defied the efforts of any but the most creeping ingenuity and industry. There was really every thing to discourage and disgust a liberal and enlightened mind, however well inured to labour by the invigorating discipline of logic and mathematics. The deep and clear waters – so to speak – of legal principle, there always were, and will be, for they are immutable and eternal; but you had to buffet your way to them through "many a mile of foaming filth," that harassed, exhausted and choked the unhappy swimmer long before he could get sight of the offing. Few beside those who had had the equivocal advantage of being early familiarised with such gibberish as "special general imparlance" – "special testatum capias" – "special original" – "testatum pone" – "protestando" – "colour" – "de bene esse," &c. &c. &c. could obtain a glimmering of daily practice, without a serious waste of time and depreciation of the mental faculties. Let the thousands who, under the old system, almost at once adopted and abandoned legal studies, attest the truth of this remark. There was, in short, every thing to discourage a gentleman from entering, to obstruct him in prosecuting, the legal profession. Recently, however, a great change has been effected. There has been a real reform – a practical, searching, comprehensive reform of the common law; a shaking down of innumerable dead leaves and rotten branches; a cutting away of all the shoots of prurient vegetation, which served but to disfigure the tree, and to conceal and injure its fruit. Now you may see, in the common law, a tree noble in its height and figure, sinewy in its branches, green in its foliage, and goodly in its fruit. May it be permitted, however, to express an humble hope, that the gardener will know when to lay aside his knife!" – (P. 20.)
And yet Warren has a knife, too, of his own which he would willingly employ upon some part of this noble tree – either its old or its new branches. It is impossible for even the most indulgent commentator not to perceive that there are in our system of pleading many technicalities, which, so far from being necessary to the administration of justice, have no other operation than to retard, to complicate, to defeat the administration of justice. At p. 738 – a very prudent and respectful distance from the quotation we have just made – we find the following admission: —
"Such is a faint sketch of the existing system of special pleading, upon the reform and remodelling of which has been bestowed, during the last fifteen years, the anxious and profound consideration of some of the ablest and most experienced legal intellects which were ever addressed to such an undertaking, or concerned in the practice or administration of the law. Their alterations were bold and extensive, and perhaps may be said to have been, to the same extent, successful. The principal objects proposed to be effected by the late changes were enumerated in an early part of this work, where also was given a general account of all the late changes effected in the department of Common Law pleading and practice. To this we now refer the reader; and also to the Appendix (No. IV.), where will be found, in extenso, the Rules of Court by which these great alterations were effected. While the principal objects of the framers of them have been accomplished, by effecting a great saving of expense in the length of the pleadings, and their incidents; by securing an economical and satisfactory trial at Nisi Prius, through the precise and specific nature of the issues required to be presented to the jury, and the effectual expedients resorted to, for the purpose of saving an unnecessary expenditure in obtaining evidence: it cannot be denied that the excessive stringency of the rules which restrict a plaintiff to a single count in respect of a single cause of action, and a defendant to a single plea in support of a single ground of defence, too frequently operates most injuriously, so as to secure the defeat of justice. It is continually a matter of serious difficulty, to refer a particular combination of facts to their appropriate legal category; and if the wrong one should be selected, substantial justice is sacrificed before arbitrary legal technicality. It would be easy to illustrate the truth of these remarks by reference to cases of daily occurrence. The rule in question must either be relaxed, or its injurious effects neutralized by greatly enlarged powers of amendment conferred upon the judge at Nisi Prius. With all these defects, however, it cannot be denied that the recent changes in the law of pleading, evidence, and practice, with reference to the interests of suitors, have justified the most sanguine anticipations of those who set in motion the machinery which effected those changes; and with reference to students and practitioners, have tended to exact a far greater amount of diligence, learning, and acuteness, than for a long series of years has been deemed requisite."
Mr Warren's illustrations, whether imaginary, or drawn from experience and observation, are always, as might be expected, graphic and amusing. It is thus that he exemplifies a very useful precept, which he gives to the young student for the bar: —
"He must very early familiarise himself with the correct meaning of at least the leading technical terms of Logic– which are of frequent use in the courts – not for petty pedantry or display, but from their real advantage – from, indeed, the necessity of the case. Instances of the vexatious consequences of ignorance in these matters will not unfrequently fall under the notice of a watchful observer. Some two or three years ago, a counsel, manifestly not having enjoyed a very superior education, was engaged in arguing a case, in banco, at Westminster – before four very able judges, one of them being a man remarkable for his logical acuteness and dexterity. 'No, no —that won't do,' said he, suddenly interposing – 'put the converse of the proposition, Mr – : try it that way.' The judge paused: the counsel too paused, while a slight expression of uneasiness flitted over his features. He expected the judge to 'put the converse' for him; but the judge did not. 'Put the converse of the proposition, Mr – , and see if that will hold' – repeated the judge with some surprise, and a little peremptoriness in his tone. But it was unpleasantly obvious that Mr – could not 'put the converse' of the proposition – nor understand what as meant. Some better informed brother barrister whispered to him the converse of the proposition – but it was useless: Mr – faltered – repeated a word or two, as if mechanically – 'Well!' said the judge, kindly suspecting the true state of the case, 'go on with your argument, Mr – !' It may appear strange that so glaring a case should occur at the bar – but, nevertheless, such a case did occur, and such cases have occurred, and are likely to occur again, as long as persons of inferior education come, intrepid in ignorance, to the bar."
We think, however, that Mr Warren is a little too hard upon the unfortunate orator, who was not aware of the meaning of the "converse of the proposition," and that the judge might as well have "put it" himself. A man may be a very good reasoner who has not learned "to name his tools," which is all that is taught by the logic of Aristotle.
How evidently is the following invested with all the vivid colouring of actual observation: —
"It can hardly be necessary, after all that has been said upon the subject of special pleading, both in this chapter and in preceding parts of the work, to warn the youth who rashly rushes to the bar without a competent knowledge of pleading, of the folly of which he is guilty, and the danger to which he is exposing himself. To a young counsel ignorant of pleading, a brief will be little else than a sort of Chinese puzzle. He must either give up in despair all attempts at mastering its contents, or hurry in ridiculous agitation from friend to friend, making vain efforts to 'cram' himself for some occasion of solitary display, afforded him by the zealous indiscretion of a friendly solicitor. Feverish with anxiety, wretched under the apprehension of public failure, and the consciousness of incompetence, after trembling in court lest he should be called upon to show himself, he returns to chambers, to curse his folly – to make, when too late, exertions to retrieve his false position, or abandon it for ever, with all the cloud-picturings of a vain and puerile ambition."
There is a general reluctance to believe in the union of literary talents and business-like qualities of mind. They are thought incompatible. A lover of literature is held to have little chance of success. A prejudice so general must have some foundation; but the incompatibility, in whatever degree it exists, lies, we are persuaded, not in the several mental qualities – not in the intellectual apparatus fitted for the two careers of literature and a profession – but in the different dispositions, in the diversity of tastes, which the two pursuits engender. The literary man fails in no faculty that profession calls for, but he may contract a strong repugnance for the species of activity it demands.
In literature thought is indulged and solicited for its own sake; it excites or it amuses; it may be invested with the deepest and most stirring interests of religion and philosophy, or it may be the very rainbow of the mind, having no life but only in and for its beauty. In professional vocations the intellectual effort is subordinated to a definite and fixed purpose; it is the purpose, not the thought, which must continually animate our exertions; and the purpose binds down the current of thought rigidly to its own service. Literature is the luxury of the spirit, the free aristocratic life of intellectual pleasure; profession is the useful but fettered existence of the sons of toil. In the one, the spirit revels as a mountain stream that leaps in the face of heaven from crag to crag; in the other, it is the same stream, lower down, confined in narrow channel, and half-buried by the ponderous wheel-work of that ever-clacking mill which it has to turn.
What wonder, then, that the literary man should have certain disgusts to overcome when he is called on to forsake his own free and variable life, for a mode of existence where thought is no longer her own mistress, but, with constant repetition, must take service in the mechanism of society? And he does often recalcitrate. But when, owing to some overruling motive of ambition or necessity, this distaste is overcome, it is an immense advantage which the possessor of literary talents has over the ordinary practitioner of any profession. In that of the law it has been especially remarked, that those who have been most eminently successful have confessed to the repugnance they had, in the first instance, to conquer; and such examples of eminent success have, for the most part, consisted of men who had betrayed a decided talent and aptitude for literature.
The writer whom we have before us is a striking instance of literary tastes being irresistibly borne down by the craving after active life, and, perhaps, a strong impulse of ambition. The present work is sufficient to testify that, however vivid his imagination, his patience is still greater. We know him to be one of those who abhor rest, who court fatigue, to whom the utmost drudgery becomes welcome when invested with the interest of an immediate practical purpose. To one of such a stamp, literature could only prove a sort of apprenticeship to cultivate and develope his mind, not to determine his career. And so it has been. It was in vain that nature placed the pencil in his hand; she could not win him to the repose of the artist; his spirit was already pledged to a life of action, of toil, of hope, of enterprise. All along he has chosen the path of forensic ambition, nor, when most exerting his fancy, has he ever swerved from the goal. May success await him in his laborious course! May he be landed high and dry upon the envied eminences of social life! But – by Jupiter! – if nature had given us the pencil of the artist, we would not have let go our hold, though the seals of office were ten times as large and ten times as brilliant as they are, and were dangled before us within arm's-reach. You might have lifted us softly and gently, and placed us as with a mother's arms, even upon the broad woolsack, we would not have dropped that pencil. No; we would have said to the boisterous prosperities of life – Here is that which will make station indifferent; if to food and raiment men must needs add the charms of variety, here is that which will gild even obscurity with an assured and tranquil pride!
As we have intimated, we do not feel disposed to blame our author that he speaks often of his "glorious," his "noble" profession. The golden hue of sunrise is rightly cast upon the pinnacles and towers of that city the traveller is toiling to reach. What narrow and squalid streets, what blind alleys, what there is of filth and ruin in the great capital of intelligence, he may find out afterwards for himself. There was a time when we, too, were younger than we are, and saw the proud city at the same advantageous distance, when, dazzled by the view of its more conspicuous ornaments, we might have been tempted to make the same exclamations, and to use the same flattering phraseology. At that time, if any one had thrown a shadow of moral blame on the very principle and universal practice of the profession of advocacy, we should have indignantly repelled the accusation, we should have rushed to its defence, perhaps we even did attempt to throw our little shield before its huge and very vulnerable body. But now – when some years have rolled over our heads, and we have learned to think more calmly, if not more wisely – when we have caught a glimpse of the men who fill high places, and stood near enough to discover that they were of earth's common mould – when the actual din of forensic oratory, deafening and monotonous, has rung in our ears, and we have sat and watched the solemn juggle, and the stale hypocrisy with which that legal strife called a trial is conducted – now, if any teacher of ethics should denounce the demoralizing principle of advocacy – the principle we mean of contending for any client, or any cause, that craves fee in hand – we should no longer be eager to thrust ourselves between him and the object of his indignation; we should let his wrath take its course; we should listen with patience, with neutrality, perhaps with secret satisfaction at his attack. What, after all, is to be said in answer to the reproach which every simple-minded man must make – not against this or that member of the profession, because an individual is always considered blameless who only adopts the customs of his country – but against the whole profession, the principle and theory of its action, this arguing for A or B, for Yes or No, as they first come, without the least regard for justice or for truth?