eration.

Indeed, there is a certain description of our enlightened citizens who have progressed to the degree of doubting even the mere expediency of its appropriate functions, or at most, its necessity as a qualified institution.

Others are not prepared to say that a special education may be entirely dispensed with, but shrewdly surmise the convenience of an exclusive Profession to be more than balanced, on the whole, by the abuses either inseparable from its nature, or inveterate in its American condition. This objection would seem, no less than the former, to demand the abolition of the Legal Profession, on the plain principle of Profit and Loss. These Reformers, however, would be content with throwing it open to unrestricted exercise-a proposition, for the rest, coming effectually to the same result.

A denial of the necessity or the utility of the Advocate's occupation would scarcely merit, of itself, the respect of refutation. It has a source with the vulgar error respecting the non-productiveness of the mercantile classes. That the lawyers, like the merchants (sometimes), live and thrive, is manifest to the five senses; but the quid pro quo which they render in return is of a nature still less apprehensible to the common intelligence, than the accession of value to material merchandise by the process

of transportation.

As ancient as the practice of the law for pay, this prejudice will remain, most probably, until the multitude become more enlightened political economists than many, who dogmatize about that science, are at this day.

So too with the charge of abuse, which is of like antiquity, and exaggerated grossly. That there is, in truth, abuse, grievous abuse, we are perhaps among the farthest from inclining to deny, and certainly have no design to defend it. On the contrary, we admit, condemn, detest, denounce it; but we do more, and better-we mean to show the true way of diminishing it indefinitely, if it may not be entirely extirpated.

But while the objections themselves might be left with all impunity to the natural death of such ravings, the remedy urged in consequence of them is somewhat more formidable, though also (if this be possible) somewhat more absurd. For what could well be so absurd, as in a civilized community to propose setting a profession held pre-eminent among those distinguished as "learned," below the humblest handicraft, in the essential of preparatory instruction? And this, by way of mending the morals, and elevating the capacity and the character of our Bar! Why it is just the policy of burning down your dwelling to expel the rats! Or more exactly still, the preposterousness of abandoning it, stowed with Cheshire cheese, to the unmolested occupancy of these vermin!

Yet experience would hardly permit us to rest secure in the absurdity of the nostrum against its possible adoption. Besides, it has, in fact, what are termed certain elements of popularity. Does it not assail a privi

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leged body, a sort of mental monopoly? Does its deference to the common capacity not flatter human, especially democratic, vanity? What! the sovereign makers of the law not be amply qualified -all and each-to understand and apply it! Then, has it not the appearance of vindicating the personal liberty, of choosing for advocate or litigatory agent whomever the party may please? These are no vain arguments, the auditory considered. And when we also consider that that auditory is ultimate arbiter in the premises, it were an unwise disdain to refuse the respect to purblind power of a discussion which is due alone, indeed, legitimately to reason.

We have intimated that the pretended remedy in question-of unqualified admission--could only aggravate the evil, would in effect go to organize (so to say) the abuse complained of: for of this abuse a cardinal cause is precisely the present facility of access; and the mischief would of course augment with any increased accessibility. It follows, by inverse consequence, that the proper course is to build up, not to break down; that the path to true reform is the path of restriction. Such is also the dictate of reason and the lesson of history, as will hereinafter, we trust, satisfactorily appear.

That this direction should have been missed so perversely in the reiterated attempts to regulate the disorders of our legal practice is explained not only by the inadequacy of intelligence, but chiefly, we think, by the narrowness of the objects of the reformers Their projects shallow and expedientary-looked no farther than the suppression of existing abuses, which they seem to regard as incident to the normal, instead of a distempered, state of the Profession. In this view, it was natural, perhaps necessary, to seek their remedy in direct, external application of statutory enactments. But now that costly experience has at last convinced them of the futility, if not positive mischief, of all legislative contrivance to chain down the Proteus of a lawyer's cupidity and chicanery-what course do we see them take? Why, the usual resort of ignorance in despair; they are willing to commit the matter to chance. To subdue a few disorders, imaginary or real, which have proved refractory to their quackery, they would turn the whole Profession into one wide, wasting disorder; in hope, apparently,

that honor, integrity, and capacity may arise from the chaos, by some unimaginable concurrence of ignorance, depravity, presumption and pettifogging.

All this is, as we have said, but repairing the vessel by killing the worms that gnaw it, instead of arresting the principle of putrefaction which gives them birth and sustenance. The principle of the abuse in the Legal Profession is its defects. To the defects, accordingly, it is that our idea of professional reform would fain address itself: the abuses, &c., will soon dry up when the sources are turned off. But to determine what are these defects, and especially, to exhibit them intelligibly, we must previously fix a standard of professional excellence. This will form a main division of our task. Eschewing all ideal portraiture as vague or vain, we shall draw this criterion from nature and history; we will endeavor to present a sketch, though rapid, yet as faithful as our scanty records and space may permit, of the profession of the Advocate-in its natural origin, its social position, its distinctive character, and its corporate constitution-such as it has arisen and developed itself in those States where it attained the highest degree of perfection, and whence not a few of its usages (if too little of its culture and dignity) have been transmitted to our own bar.

In tracing this survey, philosophical and historical, of the Legal Profession, our design is not merely to furnish a model by contrast wherewith to set the defects of the institution in this country in a strong and steady light: we design, moreover, to signalize, in going along, the conditions and contrivances whereby, especially, that model attained its excellence, and, selecting from those influences the most suitable to our occasion, to show how the induction should be applied to the exigencies of the proposed professional reform. There could not well, we presume, be a more candid or conclusive submission of ourselves to that test so mortal to most reformersexperience and evidence.

What is the nature of the Legal Profession? What is the relation of individuals, what the condition of society, what the exigence or the economy of affairs, in which it takes its rise and retains its establishment?

The main object of society, of the state, is to assign and to guaranty the rights of the several members. The

means are laws-whether of custom, interpretation, or enactment. From the multiplicity of the relations to be regulated, and the opposition of the interests to be adjusted, these laws or usages will, even in a very low degree of civilization, be necessarily as numerous and complicated as they must, from the nature of the subject and case, be abstract and above the ordinary intelligence. For the maxim that the laws should be known to all who are required to obey them, is a mere fiction of the law itself. History tells us it has never been so, and reason, that it could never be. And supposing them known, there would remain another, and perhaps the greater difficulty-that of effectively applying them in the assertion of violated rights. But men will never jeopardize any valuable interests upon their own management, with the consciousness of this their double deficiency of knowledge and skill. They will have recourse to those who may be distinguished in the society or the tribe for both or either, and who will be called in to supply the incapacity-advocati. Such is the origin of the advocate, the function as well as the name, which has its foundation, we see, in the nature of men and the necessity of affairs. And it is to secure a reasonable degree of that knowledge and talent that the wisdom of all civilized countries has sanctioned, as their wants had established, an instituted profession of the Law.

The function of the Lawyer, then, consists in supplying both the legal ignorance and the intellectual inequality of his fellow-citizens. It is his say, with the Pythian Apollo in Ennius—

"Suarum rerum incerti, quos ego mea ope ex

Incertis certi, compotesque concilii Dimitto, ut ne res temere tractent tur. bidas."

Here we also see the eminent dignity and importance of the calling. It is conversant about the most valued mundane interests of men. Implying a confidence the most vital and absolute, it pre-supposes, of course, the entire range of moral virtues, from the nicest delicacy up to the most heroic devotion. It demands qualifications of mind, which must always be the rare fruit of no ordinary parts and education both combined.

The paramount magnitude of the interests that occupy it, the moral integrity by which it is presumed to be ever actuated, the intellectual distinction required for its exercise-such are the three columns whereupon the profession of the Advocate is (or should be) proudly elevated above every other merely temporal occupation. "A profession," (if we might slightly alter Blackstone's graceful description of the science they practice,) "whose occupation consists in distinguishing right from wrong; in laboring to establish the one and to prevent, punish or redress the other; which employs in its theory the noblest faculties of the mind, and exerts in its practice the cardinal virtues of the heart; a profession which is universal in its use and extent, accommodated to each individual, yet comprehending the whole community." Like its own deep origin, these columns too, repose upon the eternal foundation of nature. And hence, there is no rhetoric in the noble and well-known encomium, by a greater far than Blackstone, and one of the most consummate models of all its virtues:*-Un ORDRE aussi ancien que le majistrature, aussi noble que la virtu, aussi necessaire que la justice: an order ancient as society, noble as virtue, necessary as justice.

This antiquity, this dignity, this importance, are each attested by History. In sketching the history of the Advocate, it is proper to premise, that with this as with all other institutions of natural origination, the thing is older than the title; as objects must have an existence distinct, palpable, familiar, before men yield to the irksome necessity of inventing them a special

name.

It is also to be remarked, that the calling of the Lawyer has borne divers denominations, according as it was employed upon a particular function or department. Moreover, these branches themselves underwent a succession of transformations with the differences of social and political circumstances, with the development or the decay of municipal institutions. Farthermore, in the employment of new names to denote the fresh form of the function, the old, still adhering, were continued in popular use and confounded, as synonymous, with

the proper term. The origin, by the way, of most synonyms.

But amid all these diversities of name and modification, we discern two, and only two pervading lines of division in the Profession, which are seen to open with its earliest appearance, and to deepen and widen as it advances to perfection. The one is, between the Knowledge of the Laws and the Talent of Forensic Speaking: the respective votaries of these pursuits were termed expressively in Roman phrase: Jurisprudents and Advocates-that is, Chamber Counsel and Barristers, in clumsy English. This appears to be a somewhat precarious division; the talent of orators is accidental, and those who possess it may also acquaint themselves thoroughly with the laws-a result to which, in fact, the tendency will be seen to be constant in ancient times in proportion to the progress of society, and which becomes easy, as well as unavoidable, through the simplification (or shallowness?) of our modern educational system. The other division is liable to no such exception: It lies between the class of Lawyers who expound and apply the Laws whether by Consultation, or by Pleading oral or written, on the one hand, and on the other, those who confine their ministry to the rules and forms of procedure: in one word, between what we shall term, the Doctrinal and Mechanical departments. Only the latter division must be of later development, depending as it does on the formation of a system of Procedure. And hence the divisions do not cross, because, strictly, not contemporaneous.

With these preliminary observations, we proceed to our history; commencing duly with Greece-that fountain of much more, perhaps, of our Jurisprudence* and civil institutions than is commonly supposed, as she is, avowedly, of our philosophy and literature.

The ministry of the Advocate we have observed divides itself at first into the two branches, Consultation and Pleading-pleading in its generic, not the Eng

lish technical acceptation. In the States of Greece, as in every other, the former must have been the earlier in requisition. Even among the savages, the elders of the tribe (age being the Savage type of wisdom and knowledge) are resorted to for the adjudication of personal disputes. These primitive judges are mere arbiters or umpires; who, for want of established rules of law or forms of procedure, have to decide from the simple representation of the parties themselves. These referees involve the counseling attribution of the lawyer; which becomes separate from the judge only after the community has made some progress in a system of laws. Indeed it is remarkable how late the conjunction may linger; passing sometimes from the province of the Judge to that of the Advocate. A remnant of it survived throughout the golden days of the Roman Law. We find Augustus appointing a council of jurisconsults to direct the judges: and Gaius speaks of this as an institution always in being; which evinces the immemorial, the natural, origin we have assigned it. Of this description of Judges were the Wise Men of the Hebrews. Hence they are superficially supposed to have dispensed with professed lawyers, and we are sometimes exhorted to follow in this, as in other things, their edifying and enlightened example. It is not adverted that the fact is but a demonstration of their barbarism. So with the Prudentes of the Romans, to whom we have just alluded; a name which has been transmitted, with something of the institution itself of Prudhommes, to France, Holland and other States of modern Europe. But, as the consulting or counseling function came at last to be separated from the judging, by the establishment of Laws, so the recognition of principles of Evidence and the adoption of rules of Procedure gave birth to the avocation of the (pleading) Advocate.

What may have been the date of this event in Greece, it is now not possible to say. In the trial, represented on the shield of Achilles in the Iliad-probably