The International Monthly Magazine Volume V to No II

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BY A. OAKEY HALL.

The hurrying pedestrian in Wall-street, or in some of its bisecting
avenues of commercial bustle, if he have time to glance over his shoulder,
is sure to observe a freshly-painted piece of tin (its brief rhetoric
revelling in the pride and pomp of gold leaf alphabetically shaped),
denominated by lawyers "a shingle"--setting forth that some sanguine
gentleman has then and there established himself as an Attorney and
Counsellor at Law.

The sign is by the front door, shining with self-conceit at the passers
by; and its owner is up some weary stairway, yawning over "twice told
tales" of legal lore, copying precedents for the sake of practice, or
keeping hope alive upon the back benches of the court-rooms in listening
to the eloquence of his seniors while _he_ is waiting for clients.

Heaven help many a young attorney in this "babel" of money-getting. The
race should be prayed for in churches: and it should meet with a
consideration as nearly divine as mortals can call up from crowded
heart-chambers.

Well: the sign keeps nailed up: and by and by the sun blisters it, and
dries out the pomp of the gilded letters, and perhaps the owner yawns over
his one case, or sitting upon a front bench in the court-room while case
number thirty is being heard, waits for case nine hundred and thirty,
against which on the calendar that is reposing by the side of the
complaisant clerk in the corner, his name is placed as counsel--shining
there like a pebble on a wide and extended beach.

The Physiology of the Medical Student from facetious pens was reached to
us over the Atlantic by friendly booksellers some years ago; and we should
have had by this time "the Physiology of the young Attorney." He is a good
subject for dissection; there's plenty of venous humor in his composition;
and oh! a deal of nerve!

Talk of exploring expeditions to the Arctic regions as offering specimens
of courage and prowess; or of scientific excursions into the wilds of
Africa to the same purport! These instances are trivial compared to the
courage and prowess yearly displayed by hundreds of attorneys who plunge
into the ocean of litigation in order to swim towards the distant buoys
which the sun of prosperity always cheers with enlivening beams.

Don't waste sympathy in this connection for the young Sawbones. _His_
thirst for action can be slaked at pauper fountains. For _him_ the
emigrant's chamber, the cabin of the arriving ship, the dispensary, the
asylums, the hospitals, and the poor-houses, are always open; and if his
"soul be in arms," there are (Heaven knows) "frays" in this city numerous
enough for any ambitious surgical eagerness.

But for the aspiring attorney where are the avenues open for gratuitous
action? Do merchants nail up promissory notes upon awning posts for
attorneys to seize and put in suit? What "old nobs" of Wall-street are
willing to put themselves "in chancery" to oblige Hopper Tape, Esq., your
humble attendant upon the Where are the courts possessing suits without
counsel?

We may be told of unfortunate wretches who murder in drunken fits to whom
counsel are assigned. But what are ten crusts of bread per annum among a
thousand hungry dogs?

Thou must face the truth, young college boy, who now and then dost stroll
into court-rooms, or who dost lounge away an hour in a friend's law office
admiring his books and piles of papers--thinking the while of the time when
thou wilt have graduated and obtained permission to hang up thy
pomp-gilded "shingle:" _thou must face the truth_! The counsel who so
attracts thy admiration, in thy court-room lounging, has fought weary
years with myriad obstacles; there are the ashes of many nights and days
of toil and struggle sprinkled upon his hair; he has fought his way (from
where thou sittest a listener to where he stands a speaker), as if through
an Indian gauntlet file. There were a hundred mouths waiting for the first
crumbs which came to his impatient legal digestion; and a hundred envious
heads and hearts to worry him if possible into a dyspepsia over those
crumbs. He has began with an office in a fifth story, and _climbed down_
towards the street. He commenced to hive his honey near the roof! While
out of his office he climbed a professional ladder, the holding on to
which tasked all his powers of physical, mental, and pecuniary endurance.
Face the truth!

Reach me yonder diary and legal register. Two thousand practising lawyers
in the city of New-York! Out of these one hundred are "notables;" fifty
are "distinguished;" twenty-five are eminent.

A large body of them are "conveyancers" growing thin in person and thinner
in mind over deeds and titles; a larger body "attorneys"--getters up and
supervisors of suits--providers of ammunition for "distinguished counsel"
to discharge with loud reports (the said counsel brilliant by the flash:
the attorney obscured in the smoke); many, very many, chained to
"larcenies" at the Sessions, "landlord dispossessions" at the Marine
Court, suits on butcher's bills at Ward Courts, or "malicious
prosecutions" in the Common Pleas.

Yet there are hundreds of coral reefs and pearls for persevering divers in
this ocean of litigation. Three thousand pending cases every month are
three thousand nutshells where the meat is often fresh and oily, even with
the weary keeping on the calendar for months and years. There are _some_
counsel who pocket fees and costs to the tune of twenty thousand a year.
We know many a Quirk, Gammon and Snap, who realize an undoubted "ten
thousand a year," with no Tittlebat Titmouse for a standing annoyance. And
we can taper off on the finger many who do not realize five hundred a
year, and work like negro slaves at that: they are continually rough
hewing, but no divinity shapes their ends.

Five years of "starvation," and five more years of toil and trouble,
constitute the depth of a lawyer's slough of despond in New-York; to say
nothing of the giants' castles to storm upon the way, or the fights with
the Apolyons of Envy. Obviously so!

A man now-a-days will let a young Sawbones advise ice for his child's
croup, or even experiment with his own much-abused liver, when he would
not intrust a young attorney with the suing a note where ten witnesses saw
the note signed and the "consideration money" paid over. And if the public
really knew how much danger their pockets were in when the "buttons" were
under the control of inexperienced lawyers, the number of "starvers" would
be doubled. What "eminent" lawyer is there who does not look back to the
"practice" of his youth, in perfect terror to witness the mistakes he
made, as the helmsman, who has scudded through the breakers to the open
sea, glances back at the dangers he escaped?

The young lawyers of a year back are, however, five years--perhaps ten--in
advance of the lawyers of this year's growth. The latter have greater
rivalry in the _hordes_ of practitioners from the interior whom the "new
code" have driven from their _trespass quare clausum fregit_ into the
city. Many of them, too, were men of mark in their ports of departure,
bold and confident in their new haven!

One field, however, in the legal township of this city, offers room upon
its face for tillers--_the field of advocacy_! It is ploughed by some
twenty or thirty, and _harrowed_ by some fifty or sixty. There are a
_dozen_ whom the ghosts of Nisi Prius flock to hear upon great occasions.
And these will long hold the monopoly.

Why?

Because the advocate and barrister must have had vast experience at Nisi
Prius (or the court where matters of fact are investigated by judge and
jury); have acquired a practised tact; have had opportunities of testing
their own calibre to know if they are fitted for emergencies--as the
gunsmith tests his barrels before he "stocks" them. And the young lawyer
has small opportunity afforded him to acquire this tact--to permit this
testing. If he can play "devil" for a few years to some barrister of
extended practice, or scent "occasions" like a blood-hound on the trail of
the valuable fugitive from justice, then he is a happy man, and is in the
fair way of soon becoming a monopolist himself.

Any juryman of two years' standing will corroborate our statement as to
the openness of the field of legal advocacy. How often has he seen cause
after cause "set down," "reserved," or "put off," because counsel are
engaged elsewhere? How often has he heard the same advocate in four or
five causes in the same week, in the same court, changing positions like
the queen of an active chess-board; profiting his fame and pocket by means
of only a hurried glance at the elaborate brief which his junior has "got
up" for him?

Some one has said that the barrister works hard, lives well, and dies
poor. Regarding the first two conditions of his life there is little doubt
upon the question of truth; the dying in poverty _may be_ problematical.
Yet in a recent print, professing to furnish a list of wealthy tax-payers,
the list contained four lawyers, and only one was a barrister. The
instance proves little, for a lawyer may be very rich and yet pay no
taxes. The assessors may fight shy of his bell-pull as they go their
rounds, because of his penchant to find flaws in their actions and bring
them official discredit in an apparently laborious task, but in reality a
sinecure of an employment.

We have often asked ourselves if barristers have stomachs. Bowels of
compassion they have not, that is certain; but have they stomachs? Say
nine times in a year they dine at the same hour of the day; and then spoon
their soup with the blood all drawn from the digestive apparatus to feed
the brain. Yet they eat like aldermen and drink like German princes....

This much of idle reverie, as, with pen in hand, we laid down the two
bulky and elaborately-published volumes whose title we have taken as text;
this much of glance at the condition of the young and old advocate of
to-day, before we digest our reflections upon the advocate and jurist of
the past.

It was our privilege in our legal novitiate (this is but _a phrase_; for a
lawyer is always in his novitiate) to have been, at the Cambridge Law
School, a pupil of Mr. Justice Story; and thus to have drank at the very
fountain head of constitutional law--that branch of our national
jurisprudence which can least fluctuate. Judges of a day and not of a
generation, or crazy legislators with spasmodic wisdom, may alter, and
overturn, and mystify by simplification, the laws and usages of every-day
life; but it is scarcely to be apprehended that the current of our
constitutional law will ever be diverted from original channels. There is
danger rather of its being dammed into stagnation.

While fully aware of his faults and foibles as a man, and his
idiosyncracies as a judge and a legal writer, we have never wavered in
loyalty to his judicial majesty, or found a flaw in the regard we paid to
his memory. And no book was more welcome to Zimmerman in his solitude than
these volumes regarding the illustrious judge, prepared by his son, were
welcome to our Christmas-holiday leisure.

Joseph Story was the eldest of eleven children, and lived to be indeed the
"Joseph" of mark and renown to his father and brothers. He was born in
Marblehead, September 18th, 1779. His father was a physician, and served
during a portion of the Revolution as army surgeon. He died when the
future judge was twenty-six years of age: yet what the son then was is
best told by one sentence from the father's will--after making his wife
sole executrix, he recommends her to his son Joseph, adding, "and although
this perhaps is needless, I do it to mark my special confidence in his
affections, skill, and abilities." From the father, our lawyer thus
panegyrized received friendly geniality and broad understanding; from the
mother, indomitable will, vigor and enthusiasm.

Habit of observation and desire of knowledge were the prominent attributes
of his childish character; nevertheless he was ardent in all the sports of
boyhood. To the last he maintained a regard for his honor, which induced
him while yet a lad, and under promise not to divulge the name of a
schoolmate offender, to receive a severe flogging rather than to yield up
his knowledge upon the subject. At the age of sixteen, in the midst of a
Freshman term at Harvard College, he thought of matriculation; but upon
inquiry learned that he must not only be examined upon the works of
ordinary preparatory reading, but that it was necessary for him to expect
a call upon the volumes which his class had dispatched during the past
half year. At first he was daunted, but remembering there yet remained six
weeks of vacation, he addressed himself to the necessary labor--the
severity of which is best evidenced by the fact that in the short time
above mentioned he read Sallust, the odes of Horace, two books of Livy,
three books of the Anabasis, two books of the Iliad, and certain English
treatises. This sounds like the railroad instruction now much in vogue;
but its effects were permanent in value upon his mind. Few readers of his
works will accuse him of a want of proficiency in Latin! But the _often_
reading--the _saepe legendo_ was ever his habit: for he remembered the
couplet:

Gutta cavat lapidem non vi sed saepe cadendo
Sic homo fit doctus non vi sed saepe legendo.

He passed muster with the college tutors in January, 1795. Among his
classmates were the (afterwards Reverends) Dr. Tuckerman and Wm. E.
Channing--to the genius and character of the latter of whom he always bore
the most enthusiastic and hearty testimony. Indeed he contested with
Channing for the highest honor. Channing won it, but always gave the honor
himself to Story; while the latter always declared that the former won the
just meed of his genius and scholarship.

Their graduation was in the summer of 1798: and immediately upon quitting
college Mr. Story commenced the study of the law with Mr. Samuel Sewall,
afterwards Chief Justice in the Supreme Court of Massachusetts. Fourteen
hours a day was over his quantum of study. Although sometimes
disheartened, he never surrendered his determination to master the
elements and details of his new profession.

_Studying_ law in those days was a far different thing from its _reading_
now. Then it was _multum_: now it is _multa_. No copious indexes and
multifarious treatises were counted by thousands: no digests (directories
to the streets, the avenues, the fountains and the temples of the
science), abounded by scores. Libraries were carried about in wheelbarrows
and not in processions of vans, when the inexorable moving day came
around. Learned judges were not then compelled to hold courts in remote
villages (resorting hereby to a _coup de loi_), in order to escape the
_cacoethes loquendi_ of case lawyers and presuming juniors. Legal lore was
builded up like the massive stone and hard grained mortar of the edifices
of that olden time--slowly, carefully, but lastingly; not as are builded
now the brick and stuccoed mansions of the snob and parvenu. Not that
abounding treatises and familiarizing digests forbid the idea of the
perfect lawyer now-a-days: only that to-day the law student in the midst
of a large library stands more in need (when thinking of the _otium_ which
accompanies certain dignity), to utter the ejaculation, "lead us not into
temptation"--the temptation of possessing that knowledge which teaches
where to seek for information, and not the kind which is information of
itself.

In 1801 Mr. Story came to the Salem bar while at the age of twenty-two.
After being three years at practice he married his first wife, who died
within two years afterward, plunging him into the deepest grief. During
his courtship he dabbled (as almost every young lawyer does until he finds
that clients are severe critics) in poetry, and wrote a didactic poem of
two parts in heroic verse, entitled "The Power of Solitude." Adopting the
criticism of the biographers--its prominent defects were exaggeration of
feeling, confusion of imagery, want of simplicity of expression, stilted
and artificial style. But though dull as a poem, it shows facility and
talent for versification, breathes a warm aspiration for virtue and truth,
and is creditable to the scholarship of its author.

After the loss of his wife he sought relief from painful thoughts in the
laborious duties of a large and increasing business. His position at the
bar was prominent, and he was engaged in nearly all the cases of
importance. His manner to the jury was earnest and spirited; he managed
his causes with tact (that great acquirement of the successful lawyer:
being, as a distinguished barrister now dead and gone said to Dr. Hosack,
the same sheet anchor to the advocate which mercury or bark is to the
physician), was ready in attack or defence, and possessed great eloquence
of expression. As an advocate he showed a sagacity of perception which no
intricacy of detail could blind, no suddenness of attack confuse, and
which afterwards so distinguished him as a Judge. He was thrown among the
leading lawyers; and undaunted as all young lawyers should be (although
preserving their modesty of deportment and learning), he measured swords
with the most accomplished. Although sometimes vanquished, he always
received honors from even the victors.

It is a prevailing opinion with the junior members of the legal
profession, that their seniors delight in snubbing them; that they are
fond of being discourteous, and arrogant; that they are envious of some
and insulting to others. But it is rare indeed that the seniors err on
other ground in this respect than magnanimity. The industrious youngster,
the self-reliant youngster, the firm but respectful youngster, the versed
in elementary principles among youngsters, are always received with open
arms. Law begets law. If the junior commences a suit a senior may answer
it: and the reverse. The parson and the doctor are in perpetual
interference with the neighbors and brethren of their particular calling.
But lawyers, like bees in the beehive, must of necessity assist and succor
each other, or there will be less honey laid away when the summer is past
and the harvest ended.

Early in his professional career he became an ardent politician. He was a
Jeffersonian Democrat, and at the bar of his residence stood almost alone
in his partisan position. As such a party man he went into the State
Legislature, and became an acknowledged leader. He possessed that great
quality for a leader, the faculty of extempore speaking, joined with the
ability to condense and elucidate the topics he took in hand. But he never
submitted the convictions of his judgment to party dictation; and soon
after his entering the arena of legislative warfare, he bravely stemmed
party tide in advocating an increase of salaries for the State judges. The
latter were all federalists, and it was not to be wondered that the
republicans of that day, who wore in their noses the rings of party,
should shrug their shoulders at the prospect of benefiting political
opponents. But by his firm conduct, and by his confident assertion and
able arguments in favor of the measure, it was carried. And to Joseph
Story, more than any other man, Massachusetts is indebted for the
opportunity of employing ablest judicial officers, without making their
families beggars.

It is the disgrace of our country that its judicial officers are the most
poorly paid of all professions and pursuits. And in every section of the
Union, that distinguished lawyer who accepts a seat upon the bench, must
hold the glories of his honor at a very high price, to surrender his
ordinary professional emoluments for the wretched pittance which the
various States dole out for days of public toil and nights of private
study. We desire to look no further than this Empire State for examples.
This Empire State, with its magnificent resources and proudly developing
energies, should be the last to unite in adjudging its judicial officers
to the labors of galley slaves, and to then pay them by the year less than
a ballet-dancer receives by the month in all its principal cities. Two
thousand five hundred dollars per year is the astounding sum which this
same Empire State pays to its highest judicial officers. If we reverse the
saying of Walpole, and read "_every price has its man_," we may not wonder
if Dogberries and grandmothers are occasionally found upon the bench,
dispensing their honest but destructive platitudes, and their Malaprop
constructions of commercial law, to juries of astounded merchants.

From the arena of State politics, Mr. Story next changed his position to
the temple of national discussions at Washington. His career in Congress
was, however, limited to one session, and to a vacancy-seat occasioned by
a death. He declined re-election; for in the words of his autobiographical
account of this portion of his career, he had lost all relish for
political controversy, and had found that an entire obedience to party
projects required such constant sacrifices of opinion and feeling, that he
preferred to devote himself with singleness of heart to the study of the
law, which was at all times the object of his admiration and almost
exclusive devotion. Public sentiment, however, forced him again into the
State councils at home, where more liberty of professional engagement was
permitted. He was in political life but a brief period again, before, in
his thirty-second year, President Madison pressed his acceptance of a
vacant Associate Justiceship in the Supreme Court of the United States,
which had been declined by Levi Lincoln and by John Quincy Adams, then in
Russia. Although the acceptance involved the surrender of heavy
professional emolument, the high honor, the permanence of the tenure, and
the opportunity of gratifying his juridical studies that he so much loved,
joined in compelling his acquiescence.

"The atrocious crime of being a young man," which had compelled a hatred
of William Pitt the younger, in a former day, was now brought up against
him by many whose party subserviency fairly blushed before his manly
integrity, and by others who envied him his success. But one year at the
Circuit silenced all complaint. And in his thirty-third year he was
acknowledged to be the able jurist whom, at his death in his sixty-sixth
year of age, a whole nation mourned.

Dismissing for the present all consideration of his judicial life, and all
estimate of his ability upon the bench, and passing over nearly twenty
years of his life, we meet him in the possession of his fourth great honor
in life--but an honor which was ever the first prized by him in all his
after career--the appointment of Law Professor in Cambrige Law School.

Mr. Nathan Dane, whose Abridgement of American law in many volumes had
obtained for him the gratitude of the profession at large, and the more
substantial testimonial of pecuniary profit, had determined, about the
fiftieth year of Judge Story's life, to repay the law some of the profits
which its votaries had bestowed upon him, by donating ten thousand dollars
for the establishment of a new professorship. He annexed to his donation,
however, the condition that Judge Story should be the incumbent. To the
great delight of the donor, and of the College Fellows, the Judge
assented, and was inaugurated as Dane Professor of Law, with a special
view to Lectures upon the Law of Nations, Commercial and Maritime Law,
Federal Law and Equity--a station which he filled to the day of his
lamented death.

This brief survey of his life presents him then in several public aspects;
as a student, as an advocate, as a statesman, as a judge, and as an
expounder of the great principles of law, which he worshipped with an
idolatry of love.

To speak of his political career would not belong to the scope of our
article. And to sit in judgment upon his judicial career would be our
presumption. Older and abler pens must render their tributes to the extent
and varied richness of his legal lore, which, taking root in principles,
branched into the minutiae of detail, under every sun and in every clime
where law is recognized as a rule of human action. His judicial fame can
never be increased or diminished by individual estimate. The law of
patents, of admiralty and prizes, the jurisprudence of equity, and above
all, his luminous explorations of what were once constitutional
labyrinths, are monuments as indestructible as the Pyramids. If every
trace of their original oneness be lost, they will yet live in the hours
of future judicial days, in professional acts, and in the guiding policy
of a remote posterity. His library of treatises are legal classics; and
the worst defects which flippant carpers and canvassers of their claims to
merit have discovered in their pages, have been their richness of detail
and polish of learning! And no one can deny that as a judge he was the
very example which 'Hobbes' in his 'Leviathan,' carried in mind when he
thus wrote--"the things that make a good judge or good interpreter of the
laws, are first--a right understanding of that principal law of nature
called Equity, which depending not on the reading of other men's writings,
but on the goodness of a man's own natural reason and meditation, is
presumed to be in those most who have had most leisure and the most
inclination to meditate thereon; second--contempt of unnecessary riches and
preferments; third--to be able in judgment to divest himself of all fear,
anger, hatred, love and compassion; fourthly and lastly--patience to hear,
diligent attention in hearing, and memory to retain, digest, and apply
what he hath heard."

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