« ПредыдущаяПродолжить »
of the Court of Common Pleas, wrote to a friend that he found the search after truth much more pleasant than the search after arguments.
Lawyers also fill most of the higher offices in the States and the United States. They draft most of the laws. They are generally found at the head of the political departments. They are prominent in constitutional conventions. Of the fifty-six signers of the Declaration of Independence, twenty-five were lawyers; of the fifty-five members of the Convention which framed the Constitution of the United States, thirty were. Of the Presidents of the United States, twenty-one out of twenty-six have belonged to this profession: so have a large majority of the senators of the United States, and about half of the representatives in Congress.1 In the State governments the same thing is true of the principal officials.
Theodore Roosevelt once said that "no people have permanently amounted to anything whose only public leaders were clerks, politicians and lawyers." One of the best known members of the American bar replied to this with perfect truth that "no people have ever permanently amounted to anything among whose leaders great lawyers were not conspicuous, and among whom respect for the law was not a controlling force."
Napoleon, when he desired to shape the law according to his own will and keep France from freedom, began the nineteenth century with setting up a privilege on
1 Benton, Annual Address in 1894 before the New Hampshire State Bar Association, p. 247.
the part of the government to have jurisdiction over causes affecting it or its officials, taken from the ordinary courts, and given to special tribunals confined to that sort of business. It kept the French bar back from one of the largest opportunities of public service.1
Lawyers, both as such, and as legislators, are, as has been said above, often the framers of statutory law. Nothing of human make has a higher place than belongs to that. It is no easy task to devise a statute that will remedy one evil without causing another. What qualities it ought to have are well depicted by one of the older Spanish writers on law, Isadore of Seville. A good statute, he says, will be honorable; just; practicable; in accord with nature; in accord with the custom of the country; in place and time convenient; necessary; useful; plain also that it contain nothing through obscurity which is fallacious; written for no private interest, but for the common advantage of the people.2 Few laws will answer all these conditions, but it ought to be a lawyer's ambition, and certainly always is his opportunity, to let no draft of a statute pass from his hands which does not approximate to this lofty
1 Dicey, Law of the Constitution, 8th ed., p. 232.
2" Erit lex honesta, justa, possibilis, secundum naturam, secundum patriae consuetudinem, loco temporique conveniens, necessaria, utilis, manifesta quoque ne aliquid per obscuritatem in captionem contineat, nullo privato commodo sed pro communi civium utilitate scripta." Cited by Bruncken, American Political Science Review, Vol. VIII, p. 224, n.
standard. There will never be a time when the people will not welcome such laws as conform to it.
This is particularly true of new statutes which help courts to exercise more freely their preventive powers. To keep men from injuring others is a much more effective way of maintaining the social order than to wait till the act is done, and then concern oneself only with questions of reparation or punishment.
Much here remains to be accomplished by the American lawyer. As has been well said by Professor Pomeroy :
"The ideal remedy in any perfect system of administering justice would be that which absolutely precludes the commission of a wrong; not that which awards punishment or satisfaction for a wrong after it is committed." 1
De Tocqueville, in his Democracy in America,2 struck by the fact that the members of the American bar ranked particularly high in the social scale, gave most of a chapter to the discussion of the causes. From this a few passages merit quotation here:
In visiting the Americans and in studying their laws, we perceive that the authority they have intrusted to members of the legal profession, and the influence which these individuals exercise in the government, is the most powerful existing security against the excesses of democracy.
"In all free governments, of whatever form they may be, members of the legal profession will be found at the head of all parties. The same remark is also applicable
1 Pomeroy, Equity Jurisprudence, San Francisco, 1907, Sec. 1357. 2 Vol. I, Reeves' translation, ed. of 1841, p. 297, et seq.
to the aristocracy; for almost all the democratic convulsions which have agitated the world have been directed by nobles. "A privileged body can never satisfy the ambition of all its members; it has always more talents and more passions than it can find places to content and to employ; so that a considerable number of individuals are usually to be met with, who are inclined to attack those very privileges, which they find impossible to turn to their own account.
The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation, because it does not attribute to them any sinister designs. The object of lawyers is not, indeed, to overthrow the institutions of democracy, but they constantly endeavor to give it an impulse which diverts it from its real tendency, by means which are foreign to its nature. Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.
If I were asked where I place the American aristocracy, I should reply without hesitation, that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar."
The half century which followed the publication of Democracy in America, as Lord Bryce has remarked, reduced the weight of the American bar "as a guiding and restraining power, tempering the crudity or haste of democracy by its attachment to rule and precedent." 1
Lawyers have also receded, relatively, in social posi
1 Bryce, American Commonwealth, Vol. II, 1st ed., London, 1888, p. 490.
tion. There are no longer but three professions
The "captains of indus-
theology, law, and medicine. try" have won high place. them coming as a reward of scientific discoveries, have given new means of social distinction. The higher education is shared in by more. In the country and the small towns, the lawyers retain their original place: in the great cities they are less frequently the leaders in social circles than in the time of de Tocqueville.
But in the capacity to render social service they still hold their own; and social service is more and more becoming the best expression of public service.
4. The Opportunities of the Lawyer for Making Money
The bar overcrowded, and always has been, both in England and the United States. Incomes of leading American lawyers. Of leading English ones. Large single fees. Contingent fees. No partnerships of English barristers. The briefless barrister. Entering the American bar, with no funds to draw on. Rich young lawyers, not favorites with clients. Bad debts. The prizes of the profession. Social changes tending to affect lawyers' fees. Those of the country lawyer. Legal Aid societies. Collection agencies. Insurance against accident claims. Examination of land records. The Torrens plan. Title guarantee companies. Advertising for business.
A lawyer engages in a profession which, both in England and the United States, is overcrowded. Every calling will be which possesses high attractions. The supply will always exceed the demand. One of the attractions of the law is that it offers to those of suitable qualifications who enter it after a proper preparation, a reasonable chance of obtaining a large income and the