Notices of New Books, &c. Rule refused. NOTICES OF NEW BOOKS. ALDERSON, B.-In the action of debt, | years to York without receiving a single the plaintiff sues not only for the debt, but brief. One afternoon, after dinner, he also for its detention, the result of which declared that he found a prophet had no is damages. Then the term "cause of honor in his own country, and that as he action," includes every thing that the never received a single guinea in York, plaintiff goes for. he would shake the dust off his feet, and leave it next morning, never to return again. Now, Davenport, on hearing this determination, went to his own lodgings, and himself with Wedderburn drew up a brief, purporting to be in a case entitled The King v. The Inhabitants of Humtown,' for not repairing a highway: setting forth the indictment, and the names of the witnesses to be examined, and their testimony in a most skilful manner, and they sent it to Lee's lodging with a guinea as a fee. Lee came into the circuit room in the evening, and Wedderburn exclaimed, Bless me, Lee, I thought you THE established reputation of Mr. Grawere gone!' Well,' said Lee, 'it is very ham's work on Practice, renders super-extraordinary: I was just going. I was fluous any notice, other than of the changes and modifications effected in this third edition. Nearly the whole has been re-written, and the general arrangement much simplified. The work is much enlarged by new matter, and the citation of apposite cases, both domestic and English, determining or illustrating the practice A TREATISE ON THE PRACTICE OF THE SUPREME COURT OF THE STATE OF NEW-YORK. BY DAVID GRAHAM, Counsellor at Law, third edition. Revised, corrected and enlarged, in two volumes. Vol. I. New-York: Published by Banks, Gould & Co., Law Booksellers, No. 144 Nassaustreet; AND BY Gould, Banks & Gould, No. 104 State-street, Albany, 1847. of our own courts. shaking the dust off my feet in this place, as an abominable place, that I never would see again, when lo! A brief is brought to me, and I must stay.' 'Well,' said Davenport, 'in what case might that be?' Lee said, 'In an indictment, the King against the Inhabitants of Hum-town.' Oh dear,' said Davenport, 'they brought me a brief in that case with a bad guinea, The author in his preface to this edition, and I would not take it. I dare say they speaking of the changes made or to be have given you the bad guinea.' I have made, in our judiciary system and system it in my pocket,' said Lee: here it is.' of practice under the new constitution, Davenport looked at it and said yes, this "the belief, that the result of the is the same guinea,' and put it in his pocket. action of the Legislature upon the sub- Wedderburn and Davenport then told him ject of the proposed new system, must the joke they had practised, to have the necessarily be delayed for a considerable benefit of his company a little longer at period." And he anticipates, "that, what- York. Lee is said never to have forever may be the character of that system, it will not wholly remove the ancient land given them. Lee, afterwards, led almost marks of the practice as to render a work every case at York." based upon the existing system, wholly valueless, as furnishing analogies and ilJustrations, consistent with the new, and calculated to render its reduction into practical operation, easy and simple.' expresses THE ELDON ANECDOTES. "JACK LEE," said Lord Eldon, "belonged to Yorkshire; but he went many A JEW, coming to bail a person in the King's Bench, superbly dressed, in order that he might pass the better as sufficient in substance. He had on, particularly, a most rich gold embroidered waistcoat. The plaintiff's counsel was pressing him about his property when old Lord Mansfield, said, "Don't waste your time, by objecting to a gentleman who would burn for more than the debt." THE LEGAL PROFESSION. LAWYERS AND LAWYERS' FEES IN THE "OLD DOMINION." "Hail, sacred Polity, by Freedom reared! Observer. [MONTHLY PART. pose, they have been held up as having no solid interest in the State, like that of the "hard-fisted yeomanry," and branded as those who "live by their wits." Glorious, heaven-inherited capital! The best and often sole birthright of the greatest benefactors of the human race! Without trenching upon party politics, in the NEARLY the whole of every community least, I will here introduce a few prelimimay be divided into lawyers and those nary remarks, which are only applicable who employ them. A chapter on lawyers to politics in its general aspects. may, therefore, be not unacceptable; and Certain it is, that the wise and cauI shall take some pains to introduce a sub- tious framers of our constitution, feared ject most interesting to them, and in those downward and disorganizing tenwhich the others are deeply interested, Lawyers' fees. dencies, that had most dangerously exhibited themselves in the experience of Some time since, I think I read in some other free governments. Hence, in their history of Virginia, that at one time writings and debates, they used many exlawyers' fees became so exorbitant in pressions of distrust and apprehensionthe "Ancient Dominion," that great dis- which to some, might now seem gross discontent arose among the people, and a paragement of the wisdom and sovereignty deputation was actually sent to the mother of the people-and introduced into our country to obtain redress of these griev-system many beautiful and theoretically ances. In looking cursorily to verify this perfect "checks and balances," calculated impression, I have not been able to find to keep it up to the noble republican standWhether the the particular passage referred to; but ard which they erected. there is in our ancient statutes, much" cu- dangers and abuses apprehended by these rious learning" in relation to lawyers and far-seeing patriots, have arisen or not, all their fees, which tends to confirm it, and must admit that there is need of those which will, I trust, prove not uninterest- conservative influences, to which they ing. looked for the purity and perpetuity of our free institutions. The present high character and influential position of the legal profession, is too May there not, then, be in some men's well known to require or justify comment pursuits and habits of thought and action, upon it. According to the opinions of some something well calculated to prepare very observant and philosophical minds, their minds for the proper appreciation of its members exert a very salutary influence all the wise prudence, which our fathers upon the affairs and institutions of our inculcated, and for the maintenance of republic. But this has been denied, and affairs in the just equipoise in which they demagogism has sometimes, in its reck- endeavored to place them? Our fathers, lessness, identified them with the oppo- the republican fathers of an admirable nents, yea enemies, of the true inter- confedrated system of government, are apests of their country. For this pur-pealed to on all sides as having been right. VOL. V, 13 The Legal Profession. Then, may there not be something tend- by the Bench and Bar; but he has proing to keep certain classes of our citizens, bably overrated its extent in the United in the career in which our fathers started States. If the legal profession were heus? This is no question for the mere reditary, (as it would be senseless any party politician; but for one who would where to attempt to make it,) or followed inquire into the principles and operation exclusively, or if many years were deof government. voted to preparation for it; then would his observations be wholly true. But here, these are far from being the case; and he himself seems to be aware of the difference in the situations of the English and the American lawyer. "The taste and reverence for what is old," which "are almost always united to a love of regular and lawful proceedings," are more surely and deeply implanted in the mind of the former than of the latter. In our country, even whilst the embryo attorney is at the desk of his instructor; perhaps in the honey moon of his pupilage; he mounts the hustings and becomes an expounder of the solemn interests of a great people, and meddles boldly with great sciences on whose threshold he has hardly entered. Thus he may prematurely commit himself, ere his mind is imbued with one of those conservative ideas which his profession is calculated to produce, and the influence of his legal pursuits is forestalled and counteracted by that of the "winds and waves" of party politics. If he escape this danger, he may devote too little time to the study of so extensive a subject; or blend with its practice, in itself And again he says, "I cannot believe sufficiently multifarious, too many other that a Republic could subsist at the pre-matters to bring his mind fully under the sent time, if the influence of lawyers in public business did not increase in proportion to the power of the people."t One very philosophical foreign writer has taken this important question into consideration, and solved it in a very profound and lucid manner. And yet, in quoting his views, there is danger of misconstruction from the application he gives them, and the terms he employs. I have, too, seen them much perverted and wrested from their true meaning. However, what he says, is in great part too true to be denied. He thinks that the legal profession in the United States, is a conservative element of great efficiency. "Men," says M. De Tocqueville, "who have more especially devoted themselves to legal pursuits, derive from those occupations certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connexion of ideas, which naturally render them very hostile to the revolutionary spirit and unreflecting passions of the multitude." Again he says, "In a community in which lawyers are allowed to occupy, without opposition, that high station which not usually belongs to them, their general spirit will be eminently conservative," &c. operation of the causes to which M. De Tocqueville has adverted; though, on the other hand, some minds may readily take this conservative hue. Some, perhaps, may deny this salutary influence to the legal profession, or even In the next place, whether the conserdislike this alleged tendency, as opposed vative, stare-decisis habits and modes of to the spirit of liberty and improvement. thought, be favorable to liberty and imBut I cannot concur with either such sug-provement. It may be admitted that if gestion. M. De Tocqueville has hardly exaggerated, in the least, the salutary character of the influence naturally wielded they grow up with abuses, they may cling to them; though even in that case, a spirit of self interest, aided by their necessary intelligence, if they were, as in our country, identified with the rest of the people, would prompt them to seek the removal of these abuses, which would be attended with this advantage, that, if possible, it would be done peaceably and lawfully. On the other hand, if they grow up in the enjoyment of freedom, how ardently will they cling to it and cherish it as vestal The Legal Profession. fire! Our birthright of freedom was a particularly exasperated against the lawglorious one; and all that we have to do yers. In that outbreak, they may have is, to preserve it unimpaired. If we do, had some show of justification, for their it will bless and enrich our latest posterity. burdens were none of the lightest, and For its preservation, the tendencies, dis- were in part attributable to Simon De positions and influences of the legal pro- Sudbury, Chancellor of Richard II., and fession will be conducive. his legal advisers. Walsingham, in his In monarchical and aristocratical govern- account of Wat Tyler's rebellion, says, ments, there may be affinities which at- that he wished to obtain a commission to tach lawyers to the side of the privileged decapitate all the lawyers and all who orders, and make them more or less the were learned in the law, or had any offiadvocates or vindicators of arbitrary cial connection with it; for he conceived, power. But in the United States, where that all those learned in the law being there are no privileged orders, and where slain, after that, there would either be no no man's profession, or even his social po-law, or it would be made to suit their sition, is beyond a very limited extent pleasure.* of Henry VI.; and hence Shakspeare, who has held up such a true mirror to all the historic periods of which he wrote, as well as to human nature in general, thus introduces Cade in a dialogue with "Dick the butcher." Dick. "The first thing we do, let's kill all the lawyers." Cade. "Nay that I mean to do. Is not this a lamentable thing, that of a skin of an innocent ment, being scribbled o'er, should undo a man?” lamb should be made parchment? that parch transmitted to his children, there is noth- The same hostility to lawyers animated ing which can possibly dispose lawyers the followers of Jack Cade, in the time to become the opponents of genuine liberty. Should they be found the most enlightened, influential and upright class of the community, this should rather increase confidence in them; for the successful conduct of important affairs of state requires all these qualities in an eminent degree. When turbulance and anarchy arise, or where impatience of lawful restraint begins to unmask itself, lawyers will be apt to be found in the opposition; and will incur the hatred and reprobation of all who find their love of order in their way. But they will only prove their wisdom and patriotism by standing firmly by the constitution and laws; and restraining every departure from, or violation of them, though those who profess to represent the sovereign people, by whose authority and in whose name, the constitution and laws were, in times of calm reflection established, should from special causes be ready to sanction an infraction of those sacred guaranties of public liberty. It would indeed be a crown of imperishable honor to them, to be always found on the side of the constitution in all assaults upon it; and upon that of law and order, in all popular disturbances, whether in Philadelphia, Rhode Island or elsewhere. If they be thoroughly imbued with the spirit of their profession and the principles of their noble science, there is every probability, that wherever they be arrayed, there will be the cause of genuine law and order. And again, as late as 1780, in the riots of that year in England, siege was laid to the Inns of Court, with the intention of exterminating all the lawyers, "that the skin of an inuocent lamb might not be converted into an indictment." If there be any thing in this against the liberty of the citizen to be redressed by such means, it would be more rational and consistent to besiege and destroy the Parliament; for did not their laws require it, lawyers could not possibly convert parchment to any such use. In the United States, as already stated, there are no alliances or affinities unfriendly to liberty, to which the legal pro *"Voluit namque ad alia commissionem pro se et suis obtinuisse, ad decollandum omnes juridicos et universos qui vel in lege docti fuere vel cum jure ratione officii communicavere. Mente nempe conceperat, doctis in lege necatis, universa juxta communis plebis scitum de cætero ordinari, et nullam omnino legem fore futuram vel si futura foret, esso pro suorum arbitrio statuenda." Walsingham, p. In England, in the celebrated Wat Ty-361. Quoted by Lord Campbell, in Lives of the ler rebellion, in 1381, the insurgents were Chancellors, vol. i. p. 226, note. The Legal Profession. fession are liable. They spring from the lawyers in every political party; for there people, move among them and are of is good reason to expect that they will not them; no class are more identified with be the destructives and disorganizers of the people, or have so much to do for and any party; but prove a " lump of leaven" with their public and private interests. to those with whom they may become Even were it possible for them to enter- associated. Among such may we expect tain any unjust, ambitious aims, their own to find the Phocions and Aristides of the children, nearest and dearest friends and republic. relatives, engaged in all the other pursuits These views of the conservative chaof an untrammelled and ever active popu- racter of the legal profession in England lation, must be their victims; and this and the United States, are rather strengthwould be an irresistible check. They ened than weakened, by the somewhat would also be prevented from any con- opposite results in France; for the cause sistency of purpose, by the fluctuations in being removed, we cannot expect the same their ranks, the diversity of individual in- results. There, as we are informed by terests and their necessary dependence De Tocqueville; the advocate inquires upon those over whom they would be sup- what should have been done and adduces posed desirous to tyrannize, or elevate his own reasons for the course he recomthemselves. To some, these observations mends. "The most trifling litigation," may seem directed against a man of straw; and they would appear so to me, but for the sentiments and doctrines which have been put forth with no inconsiderable weight of authority, in this latitude, at least, in times of exciting popular elec tions. The views which I have presented as to the character and dispositions of the legal profession, apply to them only in the aggregate. No doubt many strong instances might be cited, militating against them. But from some of the strongest and best, established principles of mental philosophy, the conclusions here drawn, must in the main be correct, as surely as the colored medium through which we look, imparts its hue to the spreading landscape. It must be admitted, with M. De Tocqueville, that the tendencies so natural to the members of the bench and bar, "are not sufficiently strong to sway them irresistibly;" and I have stated some counteracting circumstances in the situation of American, and especially of Virginia lawyers. Nor do I mean to say or intimate, that the lawyers with their conservative principles are to be found in any particular political party. Men who espouse the same general principles, and are actuated by the same patriotic motives, may deduce different consequences and applications from those principles, and become affiliated with those of different, it may be of opposite characters and opinions. It will be well for the country to find her says he, "is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed.' Hence naturally arise a wildness of speculation and fervor of innovation. The lawyers mainly contributed to overthrow the French monarchy, in 1789, which was certainly most oppressive, though most of its evils were inherited along with its crown, by the unfortunate Louis XVI. The part taken by the lawyers was, no doubt, partly owing to their being excluded from a participation in the legislation of the kingdom; but to this must be added the want of a conservative principle in the profession itself. And about that time, too, the most unbridelled license of political speculation was given and indulged by all classes, the court not excepted, and called forth an almost separate profession-the philosophists. It must be dangerous to entrust important affairs of government to men, whose minds are little imbued with reverence for the past, and so ready to devise and promulge systems the more pleasing to their authors and their admirers, in proportion as they are new, and best subserve their immedi ate purposes. Yet a French advocate must be extensively acquainted with the statutes of his country, and the habit of expounding and enforcing them, may naturally produce some conservative regard for laws passed by the constituted authorities. * Democracy in America, p. 258. |