The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Textual Introduction
• France 1820–21
• 1.: Journal and Notebook of a Year In France May 1820 to July 1821
• 2.: Traité De Logique 1820-21
• Chapitre I: ConsidÉrations GÈnÉrales
• Chapitre II: Des IdÉes En GÈnÉral
• Chapitre III: Sources OÙ Nous Puisons Nos IdÉes
• Chapitre IV: Classification Des IdÉes
• Chapitre V: Des Notions Abstraites
• Chapitre VI: De La Division
• Chapitre VII: De La DÉfinition
• Chapitre VIII: Du Langage
• Chapitre IX: De L’origine Des IdÉes
• 3.: Lecture Notes On Logic 1820-21
• Debating Speeches 1823–29
• 4.: The Utility of Knowledge 1823
• 5.: Parliamentary Reform [1] August 1824
• 6.: Parliamentary Reform [2] August 1824
• 7.: Population: Proaemium 1825
• 8.: Population 1825
• 9.: Population: Reply to Thirlwall 1825
• 10.: Cooperation: First Speech 1825
• 11.: Cooperation: Intended Speech 1825
• 12.: Cooperation: Closing Speech 1825
• 13.: Cooperation: Notes 1825
• 14.: Influence of the Aristocracy 9 December, 1825
• 15.: Primogeniture 20 January, 1826
• 16.: Catiline’s Conspiracy 28 February, 1826
• 17.: The Universities [1] 7 April, 1826
• 18.: The Universities [2] 7 April, 1826
• 19.: The British Constitution [1] 19 May [?], 1826
• 20.: The British Constitution [2] 19 May, 1826
• 21.: The Influence of Lawyers 30 March, 1827?
• 22.: The Use of History 1827
• 23.: The Coalition Ministry 29 June, 1827
• 24.: The Present State of Literature 16 November, 1827
• 25.: The Church 15 February, 1828
• 26.: Perfectibility 2 May, 1828
• 27.: Wordsworth and Byron 30 January, 1829
• 28.: Montesquieu 3 April, 1829

21.

The Influence of Lawyers

30 MARCH, 1827?

i shall not imitate my honourable friend, the proposer of the question,¹ in his historical details, but shall state as briefly as possible some general considerations which induce me to concur in his opinion.

The range of the question includes three of the great interests of a country, its government, its morality, and its jurisprudence. That the influence of lawyers over the jurisprudence of a country cannot be beneficial seems too obvious to be denied. We cannot expect much aid in making good laws from those whose daily bread is derived from the defects of the laws. If the law were so clear and intelligible that its import could not be mistaken, and if the administration of justice were so cheap and expeditious that no one could benefit himself by contesting a just claim, lawyers must starve. This ideal perfection in a system of law may be attainable, or it may be unattainable; but every improvement in the law is an approach to it, and every improvement in the law so far forth as it is an improvement can scarcely fail to encroach upon the profits of lawyers. In our own system of jurisprudence it is now very generally admitted that the most flagrant abuses prevail: there is not one of these from which the lawyers as a class do not derive enormous profits. The uncertainty of the law is a source of endless litigation, and thereby of endless fees; the same uncertainty gives an extensive latitude of discretionary power to the judges who are a clan of lawyers, and whose stations most practising advocates hope one day to fill: the same uncertainty gives rise and support to that flourishing branch of our national industry, the opinion trade, or chamber practice, which means paying a lawyer for making the best guess he can from previous decisions which way a future judge will be most likely to decide. The needless and useless expenses of the administration of justice even in the courts of common law, and still more in the courts of equity, is made up of items almost the whole of which go to fill the pockets of some description of lawyers. The delay of the administration of justice conduces to their benefit by the numerous pretexts which it affords for additional expense. The complicated and yet awkward and inartificial manner in which the Statutes are worded, insomuch that while no mortal man can read them through, a lawyer can put any one in the way of evading them who will come up to his terms, likewise conduces greatly to the advantage of lawyers. The Statute Book swarms with bad laws, bad sometimes only because they are useless, but often because they are highly oppressive, which partly by the litigation which they occasion and partly by the absolute necessity of devising some means of evading them, are a mine of profit to lawyers. Not a word is spoken or written in the course of a suit at law for which some lawyer or another is not paid, and what is more, they are paid for a much greater number of words than are actually spoken or written; they are paid for pretending to speak or write something which is never spoken or written at all, as for example when counsel are ^afeed^a for pretending to make something which is called a motion of course, but which might with greater propriety be denominated a sham motion. Yet if anyone were to suggest that justice could possibly be administered without pretending to make these fictitious motions he would be denounced as a visionary, a theorist and a madman, if not a jacobin and a blasphemer.

But without dwelling upon the pecuniary advantages which lawyers derive from all the vices of the law, sufficient reason for their constant opposition to all improvement in it is to be found in that professional narrowness of mind which is a uniform effect of the exclusive study of one system. When a man is accustomed to see the ends of law and of civil society in some measure attained by one set of means, and has never bestowed a thought on any other, it is quite vain to attempt to persuade him that any other means can effect the same end effectually. A man who has never seen a thing done but in one way learns to consider that as the natural way, and every deviation from it as not only visionary and theoretical, but absurd. A man who has never heard of any language but his own thinks that the natural language, and regards all who talk any other as a sort of monster; like the man who on landing at Calais expressed his surprise that the children in the street should talk French, and another man I have heard of who never could comprehend how the French could be so foolish as to say pain instead of saying bread like a Christian. The Irish who had always been in the habit of tying the plough to the horse’s tail regarded the very idea of employing harness with horror. I heard lately of a solicitor who I think is a fit companion for the Irishman. On learning for the first time that in the Dutch law there was no distinction between real and personal property,² he expressed his utter astonishment and could not conceive how the people of Holland could possibly go on without it. Yet this man had the example of Bank stock before his eyes as an example with how little of technical forms the most valuable property might be secured; but he probably never thought of asking himself for a reason why a man’s title to a farm might not be secured by a set of formalities which were found sufficient to secure his title to the stock upon it. He thought that the classifications in Blackstone were classifications in the nature of things.³ All who have studied only one system, be it a system of philosophy, theology, or law, must feel more or less as this solicitor felt. Now the peculiar misfortune of our law is that to be even moderately versed in it requires the study of a whole life. It is but rarely therefore that an eminent lawyer has had time to extend his knowledge ^bfarther^b , or to render himself capable of forming a judgment on anything which is unlike his own system of technicalities.⁴ He does not inquire whether the diseases he meets cannot be cured, whether the objection cannot be obviated; to suggest means for obviating it with the least possible prejudice to the principle itself, all this requires a sort of wisdom which the advocate has not cultivated, and which he lies under no motive to cultivate. It is not his business to give arguments and objections their right value, but to make them appear either of the greatest value or of no value at all, according as they make in favour of his side of the cause or against it. There is a very happy expression of Locke which seems to me applicable to the subject under discussion, and which I will therefore take the liberty to mention. It is in one of his letters—I forget whether to Collins or Molyneux, or to what other of those whose names have been immortalised by the friendship which united them with that great man. “I am glad,” said he to this individual, “when my works fall into the hands of readers like you, for you seize the scope of my speculations without sticking in the incidence.”⁵ These few words seem to me to delineate with great force and exactness the habit of mind which peculiarly distinguishes the statesman and the philosopher. The man who can seize the scope of a speculation without sticking in the incidence is the only man whose opinion of it can be trusted, whether it be a favourable or an adverse opinion. The intellectual habits of a lawyer are the reverse of this; he can never seize the scope of a speculation, he is always sticking in the incidence. A mere inaccuracy of expression, a trifling error in any matter of detail, the employment of one inapposite illustration are sufficient in his mind to decide the rejection of the most valuable ideas. The merest petty cavil at some collateral and non-essential appendage of a doctrine or plan, a cavil which any man of common candour who was not a lawyer would be ashamed of, a lawyer urges in sober earnest and with an air of triumph as decisive of the whole question, for he never had occasion to ask himself what is essential and what not; his business was to make the most of all the arguments which could be found in favour of that side of the case to which considerations totally independent of its merits had previously determined him to attach himself. We may judge how far the influence of such men is likely to be useful in matters of government and general policy. That there is much information necessary to the statesman which few besides lawyers can give, I am far from disputing, nor do I deny that all their objections should be heard, provided that there are wiser men to weigh them. I only contend that however useful to the statesman in a subordinate capacity, they are not fit to be statesmen, or to be the guides of statesmen.⁶

^c The terms of the question direct our attention to the influence of the lawyers on the morality of the country as well as on its jurisprudence and on its government. And here, although I say it with fear and trembling, I cannot give a verdict much more favourable to the lawyers than on the two former heads. Without entering into a very minute enumeration of the modes in which a particular class may exercise an influence, beneficial or otherwise, upon public morals it will perhaps be allowed me in the gross that the utility of the influence which they exercise in respect of morality in some measure depends upon the degree in which their own conduct is marked by an habitual observance of its precepts. Now it must be allowed that the lawyers generally avoid very scrupulously all offences against morality by the perpetration of which they would incur any danger of the gallows. But a man who squares his conscience by the law ^dwould not be exacting;^d and if our standard of morality includes any of the more exalted virtues, it appears to me as difficult for a lawyer to practise them as it is for a rich man to enter the Kingdom of heaven:⁷ there is no denying the possibility of both, but neither I am afraid is often realised. We hear lawyers continually talking of themselves as the guardians of justice, the defenders of innocence, and so forth, and they are right to put the best face upon the thing as people usually do when they are giving an account of themselves. It would not quite do to stand forward and say “I live by roguery.” But amid all this fine language one thing is always forgotten, that to every cause there are two sides, and that of these one only can be the right. At least one half therefore of a lawyer’s business is deception, and avowedly so. And even when they are on the right side of the cause it is not their business to consider what arguments are conclusive, but what will appear so; not what assertions are true, but what will answer their purpose. Even when a cause is good a lawyer has not done his duty by it unless he has given it all the gloss and varnish of which it is susceptible, disguised all its weak parts and heightened its strong ones by artificial colouring. Not one half only but three-fourths at least of his business is deception. Sir, it is not easy for a man who gets his bread by insincerity to remain entirely free from it in his other concerns; it is not easy for him one half of whose life is spent in making the worse appear the better cause,⁸ and the other half in making the good cause appear better than it is, to retain that simplicity and singleness of purpose, that passionate love of truth and abhorrence of artifice and deceit without which, in my estimation at least, there can be no perfect character. Supposing even the purity of his intentions to remain unimpaired, yet the habit of making falsehood plausible begets a coolness with regard to the interests of truth. The mind becomes pleased with itself for the ingenuity with which it has made the rightful cause appear the wrong, till ^eit at last^e learns to take pleasure in the exercise itself. And when they find, as they do by practice, that there is something plausible to be said in favour of the worst cause however unfounded, while no part of their daily occupation tends to strengthen those faculties of their minds which would enable them to distinguish falsehood from truth, they soon begin to fancy that they cannot be distinguished, that when we go beyond the immediate range of the senses one side of a question may always be made as plausible as another, and that truth is placed beyond the reach of the human faculties. This state of the intellectual part of their minds co-operating with the diminished sensibility of the moral part, they soon learn to be utterly indifferent what opinions they take up and advocate; and where their interest is not concerned they are determined by mere vanity and choose that side of a question which affords the greatest scope for their ingenuity in defending it, that is most commonly the wrong side. It is not very favourable to the higher moralities that their vocation brings them into close and constant contact with human nature in its most degraded shape, with everything that is mean and selfish and unfeeling and unprincipled in human conduct and in human character and disposition, while it very rarely brings them acquainted with the best and most exalted specimens of human nature. Generalizing, therefore, as almost all men do, and as lawyers are peculiarly prone to do upon their own confined experience, it is obvious that their situation is far from conducive to their forming that favourable opinion of human nature which universal experience shows to be a necessary foundation of all the active virtues. It is notorious that the doctrine of the universal selfishness of mankind finds the greatest proportion of its partisans among the lawyers, in which respect I will not say they judge from themselves, but will treat them more charitably and say that they judge from that portion of mankind with whom in their professional pursuits they are most peculiarly conversant.

Sir, I promised not to trouble you with many words, and I am afraid that I have already broken my promise. I will therefore preclude myself from any further violation of it by sitting down.

⁹ But it is not only on these subjects with which they are professionally conversant that the influence of lawyers is rather likely to mislead than to guide the legislator and the politician. There seems to be something in the exercise of their profession which renders them utterly incapable of taking a comprehensive view of any subject. The habits of an advocate are admirably calculated to render a man a dexterous controversialist wonderfully skilful in finding flaws, and starting objections, to any doctrine or to any plan which is advanced: to weigh the validity of an objection; to compare the difficulties on the one side with the difficulties on the other; to distinguish whether the objection affects the doctrine or plan in whole or only in part, in principle or only in detail, to consider whether the flaw¹⁰

¹¹ Malice must be proved—e.g. the case of murder. If a man adulterates wine, indict him.

Objects that I have made it a question of calculation—of probable good and probable evil.

Objects to the sort of reports—like the Herald.¹²

Hayward.¹³ —Ex parte, and prejudice the jury.

Witnesses should be obtained by the office advertising for them.

The guilty are warned—magistrate should have power of excluding.

Information does not aid in getting apprehension since apprehension generally by police officers. A—Who gets it?

No check if the magistrate can remove it at discretion.—A fallacy.

Let the public in to check the judge, then there will be witnesses to attest if he previously¹⁴

[1 ]Not identified, though Laski says (without giving his evidence) in a headnote to his version that it was Thirlwall; Thirlwall was a member of the London Debating Society.

[a-a]L paid

[2 ]The unidentified solicitor had probably got his information from reports of Hugo de Groot (Grotius) (1583-1645), Inleiding tot de Hollandsche Rechts-geleerdheyd (1619-21), II, iii, 4-6, and v, 9-13; in The Jurisprudence of Holland, trans. R.W. Lee, 2 vols. (Oxford: Clarendon Press, 1926), Vol. I, pp. 82 and 96.

[3 ]E.g., as in the titles of the four Books that make up Blackstone’s Commentaries: “Of the Rights of Persons”; “Of the Rights of Things”; “Of Private Wrongs”; and “Of Public Wrongs.”

[b-b]L further

[4 ]The first typescript ends here; the following passage is found only in Economica.

[5 ]This passage from Locke’s letter of 21 March, 1704, to his young disciple, Anthony Collins (1676-1729) is in Works, Vol. X, p. 285. William Molyneux (1656-98), Irish scientist, was another friend and correspondent of Locke’s.

[6 ]The passage unique to Economica ends here; the following section is taken from the second typescript.

[c]L [no paragraph]

[d-d]L] TS [gap as for indecipherable words]

[7 ]Cf. Matthew, 19:24.

[8 ]The wording is from John Milton (1608-74), Paradise Lost (1667), in The Poetical Works (London: Tonson, 1695), p. 31 (II, 112); the idea is from Plato, Apology, in Euthyphro, The Apology, Crito, Phaedo, Phaedrus (Greek and English), trans. H.N. Fowler (London: Heinemann; Cambridge, Mass.: Harvard University Press, 1914), p. 72 (18c). Mill’s own translation of Plato carries the Miltonic echo: see CW, Vol. XI, p. 153.

[e-e]L at last it

[9 ]The following are the manuscript fragments.

[10 ]The manuscript folio is torn here.

[11 ]The following manuscript notes were probably taken during the debate.

[12 ]I.e., like those in the popular Tory Morning Herald and Daily Advertiser (founded in 1780).

[13 ]Abraham Hayward (1801-84), a law student at the time, was a prominent Tory speaker in the London Debating Society, who developed a considerable animosity towards Mill.

[14 ]The manuscript folio is torn here.