Obiter by George Neilson

The claims of the legal profession to culture were cleverly belittled by Burns, when he made the New Brig of Ayr wax sarcastic over the town councillors of the burgh:—

“Men wha grew wise priggin owre hops an’ raisins,
Or gathered lib’ral views in Bonds and Seisins.”

Bonds and seisins are certainly not the happiest intellectual feeding ground. “I assure you,” said John Riddell, a great peerage antiquary, “that to spend one’s time in seeking for a name or a date in a bit of crabbed old writing does not improve the reasoning powers.” Riddell was a keen critic of Cosmo Innes, who subsequently had the happiness of passing the comment upon Riddell’s observation that “perhaps it is not in reasoning that Mr. Riddell excels.” Yet the annals of the law shew many splendid examples of the union of close textual study of manuscript, with an enlarged outlook on first principles and with keen critical insight. Perhaps Madox was a more permanently serviceable scholar than Selden. One can see from Coke’s margins, his infinite superiority to Bacon in exact knowledge at first hand of older English law. But when all is said, we could have done much better without Coke and Madox than without Bacon or Selden. It is delightful to be able to appeal to Chaucer for perhaps the most emphatic compliment to law, in respect to its capacity for literature, that it has ever received. Amongst all the Canterbury pilgrims, there was no weightier personage than the Man of Law:—

“Nowher so bisy a man as he ther nas,
And yet he semed bisier than he was.
In termes hadde he caas and domes alle
That from the tyme of King William were falle,
Therto he coude endyte and make a thing
Ther could no wight pinche at his wryting,
And every statut coude he pleyn by rote.”

Yet it was this learned and successful counsel, alone of the party, who knew the poet’s works through and through, and had the list of them at his finger-ends. Good Master Chaucer for this touch we offer hearty thanks! Was it in Herrick’s mind when he penned his fine tribute to Selden?

“I, who have favoured many, come to be
Graced, now at last, or glorified by thee.”

Wits and poets have had many hard things to say in jest and in earnest about the legal profession and its work. Herrick bracketed law and lawyers with diseases and doctors, in a fashion hinting that the relation of cause and effect existed between both pairs:—

“As many laws and lawyers do express,
Nought but a kingdom’s ill-affectedness.
Even so those streets and houses do but show
Store of diseases where physicians flow.”

It was an old story this linking of the practitioners of law and medicine in one yoke of abuse. The reason given for both categories in early satire is sufficiently curious. It was because they took fees! Walter Map declared the Cistercian creed to be that no man could serve God without mammon. Ancient satire equally objected to the service of man, either legally or medically, under these conditions. “The Romaunt of the Rose” has the traditional refrain of other strictures in verse, when it declares that

“Physiciens and advocates,
Gon right by the same yates,yates, gates
They selle hir science for winning.winning, gain
····
For they nil in no maner greeno kind of good will
Do right nought for charitee.”

The same idea, precisely, finds voice in the poem attributed to Walter Map, wherein the doctor and the lawyer come together under the lash, because no hope can be based upon either of them unless there be money in the case. “But if the marvellous man see coin, the very worst disease is quite curable, the very falsest cause just, praiseworthy, pious, true, and pleasing to God.” Perhaps these ancient sarcasms were keener on the leech than the lawyer. “The Romaunt of the Rose” goes so far as to say that if the physicians had their way of it,

“Everiche man shulde be seke,
And though they dye, they set not a leke
After: whan they the gold have take
Ful litel care for hem they make.
They wolde that fourty were seke at onis!
Ye, two hundred in flesh and bonis!
And yit two thousand as I gesse
For to encresen her richesse.”

No doubt the men of medicine would have been much more vulnerable on another line, for it was no satirist but a learned medical professor, Arnauld de Villeneuve, who, in the beginning of the fourteenth century, advised his students as follows:—“The seventh precaution,” said he, “is of a general application. Suppose that you cannot understand the case of your patient, say to him with assurance that he hath an obstruction of the liver.” No legal professor surely was ever guilty of the indiscretion of saying such a thing as this!

The ineradicable public prejudice against legal charges as flagrantly exorbitant is only a modified form of an older idea exemplified above that lawyers should have no fees at all. And as to this day the plain man has never fully reconciled himself to the doctrine that the lawyer is only an agent, and not called upon to sit in the first instance in judgment on his client, so in the past the professional defence of a criminal appeared a very venal transaction.

“Thow I have a man i-slawe,
And forfetyd the kynges lawe
I sal fyndyn a man of lawe
Wyl takyn myn peny and let me goo.”

How reprehensible a thing to take fees was long reckoned admits of curious illustration. “Before the end of the thirteenth century,” says that never-failing authority, Pollock and Maitland’s “History of English Law,” “there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. The evolution of this class has been slow, for it has been withstood by certain ancient principles.” Amongst these retarding influences lay the half-religious scruple about the propriety of payment—men as usual swallowing the camel first and straining at the gnat afterwards. Of course the subject had to be illuminated by monkish tales and death-bed repentances. There was, according to the Carlisle friar who penned the “The Chronicle of Lanercost,”—writing under the year 1288,—a young clerk in the diocese of Glasgow, whose mind “was given rather to the court of the rich than to the cure of souls. He was called Adam Urri, and was laically learned in the laic laws, disregarding the commands of God against the Praecorialia [so in the printed text, but, query, Praetorialia?] of Ulpian. He used the statutes of the Emperor in litigating causes, for payment of money. But when he had grown old and famous in this his wickedness, and was striving by his astuteness to entangle the affairs of a poor little widow, the divine mercy laid hold on him, assailing his body with sudden infirmity, and bringing his mind to plead (enarraret) more for another life.” Condemning utterly the lawyer’s court, he turned over a new leaf, predicted the day of his own death, and died punctually conform to the prophecy, leaving an example unctuously used by the friar to teach future generations “how wide was the gulf betwixt the service of God and the vanity of this world.” We shall not be far wrong in regarding, as of more historic interest, the indication of the immorality of fees, and the important reference to Ulpian as an authority in the forum causidicorum of thirteenth century Scotland.

Amongst the amiable conceptions of the middle age was the notion that the Evil One often manifested a particular zeal against sin. He was regarded with a different eye from that with which we regard him, and he rewarded faith with actual appearances such as only spiritualists can now-a-days command. Some of them were not very engaging, however praiseworthy may have been their object and occasion. Simeon of Durham, an eminently respectable contemporary author, wrote of the death of King William Rufus in the year 1100 that the popular voice considered the wandering flight of Tyrell’s arrow a token of the “virtue and vengeance of God.” And he added that about that time the Devil had frequently shewn himself in the woods “and no wonder, because in those days law and justice were all but silent.” The logic of this because, not apparent on the surface, becomes less obscure when it is remembered that in the mediæval devil the character of Arch-Enemy is so much subordinated to that of Arch-Avenger.

The direct relation of not only the Saints but of the Deity itself to human affairs was a conception so clear to the mediæval mind that it saw nothing irreverent in a title deed being taken in the Supreme name, or in marshalling “Deus Omnipotens” at the head of the list of witnesses to a charter. This anthropomorphic practice gave occasion to one of the sharpest of Walter Map’s jokes against the Cistercians. Three abbots of that order petitioning on behalf of one of their number and his abbey for the restoration of certain lands by King Henry II. as having been injuriously taken away from the claimant’s abbey, represented to the King in his court that for God’s sake he ought to cause the lands to be restored and they assured him and gave him God himself as their guarantor (fidejussorem) that if he did, God would greatly increase his honour upon earth. King Henry found it difficult to resist the appeal thus made to him but called the Archdeacon Walter Map to advise. This he did well-knowing that this counsellor did not love the Cistercians, and that he might thus find a creditable way out of a tight corner. The Archdeacon was equal to the occasion. “My lord,” said he to the King, “they offer you a guarantor; you should hear their guarantor speak for himself.” “By the eyes of God,” replied Henry, “it is just and conform to reason that guarantors themselves should be heard upon the matter of their guarantee.” Then rising with a gentle smile (not a grin, expressly says Giraldus Cambrensis) the shrewd monarch retired leaving the disappointed abbots covered with confusion.

Of the many ties between literature and law, one, not by any means the least interesting on the list, is the quantity of legal citations, phrases, metaphors and analogies which got swept into the wide nets of the poets. Amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short induciæ at the instance of Old Age to appear at a court to answer serious charges, where no help was for him save through grace and the Virgin as his advocate.

Elde me maistreis wyth hir brevis,elde, age
Ilke day me sare aggrevis,brevis, writ
Scho has me maid monitiouneilke, each
To se for a conclusiounequhilk, which
The quhilk behovis to be of det;of det, of right
Quhat term of tyme of that be set
I can wyt it be na way,wyt, know
Bot weill I wate on schort delay
At a court I mon appeire
Fell accusationis thare til here
Quhare na help thare is bot grace.bot, without
The maikless Madyn mon purchacemaikless, matchless
That help; and to sauff my statepurchace, procure
I haiff maid hir my advocate.sauff, save

Androw of Wyntoun’s verse it must be owned was verse on the plane of a notary public, and oft the common form of legal writ supplied sorrily enough the deficiencies of his imagination. But here for once the simple dignity of the thought bore him up and carried him through.