Know ye not, brethren (for I speak to them
that know the law), how that the law hath
dominion over a man as long as he liveth?
It had been my intention to suffer the publication of this treatise without alteration in the original text, or any supererogatory comment of my own, however valuable, but a casual inspection of the poof sheets, induced by a congenital abhorrence of misplaced commas, disclosed a paradoxical and Titanic omission.
I had written a supposedly exhaustive opus upon bad men, bad laws, upon women good and bad, bad beasts, including dogs, pigs, cows, cocks, cats, rats, lice, leeches, and other vermin, even upon malignly disposed physical objects; but for some extraordinary reason, in my fulminations against bad men and things in general, I had somehow overlooked the most notorious bad men of all–to wit, the lawyers themselves–the class to which I myself once belonged by birth, education, and evil inclination, and among whom for so many years I had lived and moved and earned a dishonest living.
That so exhaustive, not to say so monumental, a work should be given to posterity with such an obvious defect is unthinkable, and indeed, now that the matter has been called to my notice, I shall be glad to take this opportunity to tell a waiting world what I think if law and lawyers.
It was my natal misfortune to arrive in Boston at a period when all male children were thought ordained by God to be lawyers. There may have been other legitimate occupations in those days, but they were not brought to my attention, and, since there were as yet no telephones, the telephone directory had not been classified.
Every morning, at exactly twenty-nine minutes past eight, my father opened the door of our house at 227 Marlborough Street and descended the short flight of steps from what was called “the vestibule,” carrying in his right hand a bag of green baize supposed by the uninitiated to contain important documents, such as wills, leases, deeds, contracts, et al. (it will be observed that the Devil’s Habit is still strong in me), and started walking toward the gilded dome of the State House. Coincidently, simultaneously, their movements accurately synchronized, every alternate door on the same street opened to allow the owner, lessee, or occupant likewise to appear holding a similar bag of green baize. Even when primarily concerned with the quality of my Walker-Gordon milk, I was never fooled by any of these rascals. My father’s bag had no vital papers in it. It held merely a heavy leather case containing a fistful of horrible black cigars and a copy of Puck. I had tasted the cigars.
Like all others of my sex and generation I was brought up to believe that only through the law could I attain economic and social salvation — “the law having a shadow of good things to come” (Hebrews 10:1) — and in pursuance of that delusion I spent some eleven precious years in being “fitted” for the bar; that is to say, I attended various football games and “beer nights” and incidentally read, marked, and got mental indigestion from several thousand so-called cases as compiled by divers and learned professors. Thus, after working perhaps two hours per diem for three years and after being tutored by a highly paid coach, who was much too wise to bother himself with the practice of his legitimate profession, I managed to pass my law school and, later, my bar examinations, and became thereby entitled to call myself a bachelor of laws.
I had, it must be confessed — in open disregard of the adjuration not too “drink and forget the law” contained in Proverbs 31:5 — nearly got rooked and thereby blighted a promising career. For in a moment of frivolity induced by a modicum of alcoholic stimulant I had answered the vital question of, “Give an example of the ownership of an animal in common,” by the illuminating statement that the only recorded instance of such ownership of an animal in common was to be found in Mark Twain’s “Pudd’nhead Wilson,” in which the hero remarks that he wishes he own’d half of a certain yellow dog “’cause if he did he’d shoot his half.” I was later informed that only by the grace of Blackstone and my extraordinary familiarity with the mysterious doctrine of Cy Pres had I been saved from the outermost darkness of the pit.
But from this incident it should not be inferred that I took the law lightly. I merely took it easily. And doubtless it was this circumstance that enabled me at a later age to discard the advocate’s robe so gracefully. “For through the law I am dead to the law.” (Galatians 1:19.) Yea, dead and buried, although risen again in the guise of a man of letters and with a posthumous reputation as a lawyer which I never had in life and which I certainly never deserved!
I suppose in fairness to the profession as a whole I should at once confess that I was engaged in the worse side of it — that of litigation — and that I did not find it spiritually improving. For twenty-five years, in company with a miserable minority of the fifteen thousand other lawyers in the City of New York, which affords more carrion upon which the legal vultures may feed fat than all the rest of America combined, I lived upon the crimes and weaknesses, economic disasters, and sexual entanglements of my fellow men until I had learned to look upon any one not involved or at least inviolable in legal complications much as does the medico to whom a sound and healthy human being seems a total loss. “Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.”
Nevertheless I had a burden, and a grievous one, which was my inability as a lawyer to express my own mind, and the fact that I was rapidly losing whatever individuality I had ever possessed; was in short becoming a mere composite or echo of all the other lawyers who had lived before me, even from the beginning of the world. For how can it be otherwise with us unfortunates, when we are not permitted to decide any point upon its real merits or as gentlemen and sportsmen, when we cannot advise our clients according to the standards of ethics, morals, or even “justice,” but must, irrespective of the common sense of the matter, perforce be bound by the idiosyncratic decision of some irascible bigwig several hundred years gone by, which has kept on growing like a legal stalactite upon which our misfortune is about to crystallize as the final drop?
In all other professions anything in the nature of a discovery is greeted with applause or at least accorded the compliment of jealousy. Not so in the law! No lawyer ever yet arose before a bench of judges to say: “Your Honors, it is my privilege to lay before you an entirely new idea!” No lawyer, even if he has an idea, ever has the temerity to disclose the fact. Should he do so he would instantly be hailed as a lunatic. Instead, he arises, coughs deprecatingly, and murmurs: “As your Honors are well aware, this point was definitely settles in Snooks vs. Mooks, 1 King Alfred, 639, which has been followed ever since by a long line of authorities with which you are all perfectly familiar.”
Whereupon his opponent gets up and says : “My learned brother has entirely misconstrued Snooks vs. Mooks, which was overruled several hundred years ago by the dictum of Lord Chief Justice Squabble in Bellow vs. Bawl and has not the slightest application. The controlling authority here is Shadrach vs. Abednego, 91 Babylonian Reports, 273.”
Of course it is much easier to make Snooks, Mooks, Shadrach, and Abednego work for us than to use our own brains, but we as lawyers pay the penalty by being forced to suppress, at much personal discomfort, whatever originality we may have been born with. Bernard Shaw would make a great lawyer — but no judge would listen to him. We have all labored under the curse of a vicarious solemnity for a thousand years. It is surprising that we often appear inhuman when we have lost by attrition at least half our human qualities?
In order to satisfy his client’s requirements a lawyer must conceal all his natural high spirits, imagination, and interest in the lighter and more valuable side of life. Once a client perceives a gleam of humor in a lawyer’s eye or learns that he does cross-word puzzles, he vanishes through the outer door. Hence, from constantly inhibiting our ordinary instincts, we become cautious, taciturn, and unenthusiastic. We learn early in the game that what a man doesn’t say can’t hurt him — except to give him indigestion. And can we be blamed for being fearful lest some forgotten dictum arise to flout us on the jaw?
Yet, paradoxical as it may seem, while professional caution induces in us lawyers a chronic verbal repression, once give us paper and ink and we become utterly abandoned. Now at last we can make up for all those hours when with lips tightly compressed we have let the other fellow talk. And because we are lawyers first and human beings afterward, we can hardly be expected even in moments of literary ecstasy to discard the jargon of our profession — that “lawyers’ cant” which, as Bentham said, “serves them, at every word, to remind them of that common interest by which that are made friends to one another, enemies to the rest of mankind.”
As the reader has already discovered from perusing this preface, a lawyer makes the worst author in the world — if for no other reason than that he has become so habituated to the artificiality, the obsolete phraseology, the redundancy and reiteration of the legal vocabulary, than he could not escape from them if he would. A lawyer is as tautological as a cuckoo clock.
So that it is really not the lawyer’s fault if in these modern days, with a cigar in his mouth and a helpless stenographer chained on the opposite side of the desk, he sits and discharges a flux of meaningless and useless words that fill page upon page of banker’s bond and bring confusion to the brain of the sanest client. For originally that was the lawyer’s devilish purpose. He did not intend things to be too simple, or what credit would there be in straightening them out? So with a sufficient number of saids, aforesaids, hereinafters, and befores, sics, et seq.s, supras, infras, et al.s, and whereases — how the dog crossed the road became the very devil of an affair.
But that was only one of the many devices employed by lawyers under what Bentham called “the fee gathering system for promoting the ends of established judicature at the expense of the ends of justice”:
“Every sham science, of which there are so many, makes to itself a jargon, to serve for a cover to its nothingness, and, if wicked, to its wickedness: alchemy, palmistry, magic, judicial astrology, technical jurisprudence. The object and use of language is to convey information: information which, in some way or other, shall be of use: for which purpose, it must be true. The object and use of lawyers’ language is twofold: partly to prevent information from being conveyed to certain descriptions of persons: partly to cause such information to be conveyed to them as shall be false, or at any rate fallacious: to secure habitual ignorance or produce occasional misconception. Misconception, as will be seen, is on those occasions a sort of improvement upon ignorance: all the purposes of ignorance are served by it, but in a more exquisite degree….” Even I could not improve upon that!
Legal verbalization has decreased, but has by no means been cured, since Bentham’s time. “Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.”
This surely is bad enough, but the true horror of it becomes apparent only when we consider that under our system of jurisprudence it is the worst and not the best form of expression which is approved and perpetuated, becoming an unalterable precedent for all time to come. It is brought about in this way. Some learned judge delivers a charge so bad as to give hope to the lawyer upon the losing side that by appealing the case he may secure a reversal. So he prints the charge in his brief and argues the point before the judges of the Court of Appeals, who, after thinking it over, say in effect: “Well, it is true that our learned brother’s charge down below was pretty damned rotten, but, although it was almost bad, it wasn’t absolutely bad, and on the whole we guess we’ll let matters stand as they are.”
Now behold what happens! This charge was as bad as it could be without being actually reversible, yet, having been approved by the pundits of Albany, it becomes a model for the bench at large; hence, much of the law given to our juries is the worst law that can be found and yet be law at all.
And this same thing is true of the phraseology of legal documents — only the worst are likely to receive the official approbation. For if a lawyer sits down and writes a will or deed or a contract that is perfectly plan and simple, nobody ever hears of it, whereas if he be a dunderhead and fill his pages with a lot of hocus-pocus and technical legal jargon which nobody can understand, it is carried up for interpretation to some learned tribunal in order than the interested parties, including the lawyer who drew it, can be told what it is all about. And the court having finally declared that al this rigmarole really means that John killed James with an axe, or that Peter has agreed to sell Paul his corner lot, or that Uncle Thomas intended by all his saids, aforesaids, whereases, hereinafters, and befores to leave a hundred dollars to his brother William’s child — now, therefore, and because of this, to wit, James and Peter and Uncle Thomas must needs go on for all eternity killing and selling and devising with ten words instead of going straight in at the door.
This peripatetic and plethoric voluminosity of expression has left its curse upon all our circumlocutory brotherhood. Granted that one of us is daredevil enough to chance committing himself on some trifling matter, he will quickly lose himself in the forest of his own verbiage and be floundering there long after you are in bed and asleep.
A lawyer who spends most of his time in court is apt to delude himself into the belief that to be constantly arguing about things is amusing to other people. He enjoys it, why shouldn’t everybody else? These so-called “trial lawyers” — of whom I was one — are well named, for they make the worst husbands in the world, for they are irritable, caustic, grouchy, cantankerous, and ill-mannered, insisting upon quarreling over the most inconsequential matters, demanding a “yes or no” answer when nobody cares one way or the other, hammering at and refusing to drop a subject until they have forced an admission of their correctness or driven everybody else out of the room. They do not allow their wives enough money, and they cross-examine them and their offspring as to where they have been and what they have been doing, until the poor things have no escape except by prevarication or homicide.
I have even heard uninformed and evil-minded people assert that by the time a lawyer has reached the age of forty-five he is either a millionaire, a jailbird, or a mummy. This of course is a libel, but I admit that most of us die of hardening of the arteries. We are never hanged. We reserve that final experience for our clients.
Had some wise person explained all this to me when I was young — “for I was alive without the law once” (Romans 7:9) — it would not have taken me twenty-five years to find it out for myself. But at length, like Saul — who was also a natural born prosecutor — I saw a great light and I gave up persecuting the innocent people who had been the victims of my cupidity, egotism, verbosity, and bad manners. Thereafter, as the prophet Jeremiah remarks, “they that handle the law knew me not.” But it is too late for me to make compensation to those I have robbed, or amends to those whose feelings I have hurt by my needless severity and hardness of heart. It shall not be said of me in the language of the Proverbs that “they that forsake the law praise the wicked.” It is not my custom to eulogize the bad men upon whose trail I am set. No, I only plead that in the case of many of them — including lawyers — there are extenuating circumstances arising out of the very nature of their badness. As for myself, I can only apologize to the multitude of kindly folk whose feelings I have hurt and endeavor to counteract the evil I have done by an exaggerated amiability for the rest of my life.
“Nay,” to quote again from high authority, “I had not known sin, but by the law.”
HISTORICAL NOTE: After writing the foregoing I immediately resigned from the Association of the Bar. But, to my surprise, that august body refused to take my resignation seriously. I am wondering if they would have pursued the same course had they first read this preface.
It could probably be shown by facts and figures that there is no distinctively native American criminal class except Congress. – Mark Twain
Law school is the opposite of sex . . . even when it’s good it’s lousy. – R. Rinkle
There are two types of people in this world, good and bad. The good sleep better, but the bad seem to enjoy the waking hours much more. – Woody Allen
Qusquis est qui velit juris consultus haberi, continuet studium, velit a quocunque doceri.
(Whoever wishes to be a lawyer, let him continually study and desire to be taught everything.)
If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind. – Thomas Powell