Of course the few sentences spoken by M. Berryer in the Middle Temple Hall gave only a very trifling specimen of his powers; but they were like a few pencil-strokes by a great artist—full of character and power. We do not wish to intrude upon the reporter’s province, or to reprint what has been already published in all the newspapers ; but the main thoughts of his address may stand as the text of a few observations on a curious subject—the relative position and characters of the French and English bars. M. Berryer said, amongst other things, that the welcome he had received was like the approval of posterity; he added, with that subdued fervour which forms such a marked feature in all the utterances of that part of French society which protests on whatever grounds against the existing state of things, that he was delighted to see that the Attorney-General considered himself as the head of the bar, because it reminded him of the time when the Procureurs-Généraux and Avocats-Généraux of his own country had similar feelings. He said the things which a courteous Frenchman naturally would say about the bar of England; and he was complimented in very eloquent language, both by Lord Brougham and by the Chief Justice, on the way in which he had for so many years discharged the great duties of an advocate, on his eager zeal for the interests of clients of every party, and on the honour which had always regulated that zeal. Lastly, Mr. Gladstone, whose speech was fully equal in interest and power to any other delivered on the occasion, made some general remarks on the importance of the bar to good government, which he illustrated by referring to his own experience in Naples. He said that when every other organ of freedom was silenced, the bar even of Naples maintained its tone, and treated the acts of the Government as they deserved to be treated when they attempted to make the courts of justice the instruments of their manifold oppressions.
All this suggests several observations on the position which a profession equally important and unpopular occupies in France and England.
Englishmen in general know perhaps less than they ought to know of the French bar. They get an occasional glimpse of the speeches of its advocates through the newspapers, and are perhaps apt to suppose that it is distinguished from the English profession principally by the style in which the business is done. This is by no means the case. The French bar occupies in a variety of respects altogether a different position from the bar of England. In the first place, the bar in this country is almost entirely concentrated in London. Though there are a certain number of barristers who practise in a few of the large towns—Liverpool, Manchester, and Leeds—all the best part of the business even of those towns is done either in London, or by barristers who come down for the purpose from London to the assizes, and even to the quarter sessions. In France, this is altogether different. There are local bars, some of them of the highest reputation, all over the country, each with its own organization and its own system of discipline. This, like many other points connected with the French bar, is a relic of old times; for the bar is perhaps (with the exception of the Institute) the most eminent and the most traditional body in France. Generally speaking, it is the characteristic of French institutions to be centralized, as it is the characteristic of English institutions to be localized; but the administration of justice forms a striking exception. The fifteen judges who sit at Westminster administer justice, as every one knows, at every assize town in England. In France, there are between twenty and thirty Imperial courts, which, in many respects, may be taken to be the successors of the old parlements. Each of these is supreme over a certain number of departments, and has its own officers of justice, of every degree, subject only to the Supreme Court of Appeal (Cour de Cassation), which can review the judgments of every court in the whole French Empire. One consequence of this is, that the French bar is far more scattered than the bar of England, and that it would probably be impossible to collect in any one place—Paris, for instance—such an array of barristers as crowded the Middle Temple Hall to do honour to M. Berryer.
On the other hand, the great multiplication of courts of a considerable degree of dignity and importance must open to the French barrister a much easier road to professional distinction than that along which his English brother has to toil. It would surprise any one who is not well acquainted with the English profession to learn what a very small number of barristers suffice to carry on the business of a court, though the simple reflection that in the nature of things one case only can be heard at one time by one court, and that four barristers are as a rule sufficient for each case, may tend to explain the fact that the same names keep continually recurring in nearly every newspaper report of the proceedings of a given court. The institution of circuits of course carries this still further. When justice is administered in six or seven large towns successively, it happens not unfrequently that the same man is engaged in every important case that occurs in six or seven populous counties. In France, on the other hand, where twenty or thirty Imperial courts are all sitting at once, the demand for advocates must be much greater, though it certainly does not follow that there is business enough to keep them all employed.
It seems highly probable that this is at least one reason of the immense length of French trials. A civil cause in France can hardly be compared to an English case at Nisi Prius, inasmuch as the proceedings are not before a jury; but a French criminal trial, if it is of any sort of importance, will last for weeks together, and is sometimes adjourned, or even broken off, and resumed in consequence of the discovery of fresh evidence, or the adoption of some new line of defence by the prisoner. “Drame judiciaire” is the regular conventional expression for such exhibitions. Of late years we have had monster trials in England, but they have been shirt in comparison with the monster trials of France. There are many reasons for this, but no doubt the French multiplicity of courts, or the English paucity of them, has much to do with it. People must have something to do, and when a local court with very little business, and a considerable array of judges and advocates, gets hold of anything that can be considered as a cause célèbre, it is not surprising that they should make the most of it.
The subdivision of the French bar is closely connected with another circumstance which exercises a very deep influence on the character of the whole body. This is its relation to the French bench. In England, the height of a barrister’s ambition is to become Attorney or Solicitor General, and so to be transformed into a Lord Chancellor or Chief Justice. If this is not attainable, he is still extremely fortunate if he can become a judge in the superior courts of common law or equity, as the case may be. Failing that, he is, in many cases, only too happy to be made a Commissioner of Bankruptcy, a County Court judge, or a police magistrate; but when any one of those posts is gained, his career is substantially over, and his promotion is at an end. In one or two instances, a puisne judge has been elevated to the position of a. Chief Justice, or even to that of Lord Chancellor. The judge of a County Court, or a police magistrate, may be transferred from a less to a more commodious district; but no one ever heard of the transformation of a County Court judge into a judge of the superior courts. These positions are the great prizes of the profession, and are so well paid in money and dignity as to command the services of the ablest of its members. The consequences of this are of immense practical importance. An English judge is the faithful representative of all the traditions, all the feelings, all the mental habits of the bar. There neither is nor can be any considerable opposition of feeling between them. Here and there, of course, there may be personal dislikes and jealousies. A judge may think a barrister rude, or unfair, or over-zealous. A barrister may think a judge prejudiced, or unmannerly, or stupid; but between the two classes as such there neither is nor can be any contest. Such a notion as that the judges represent authority, and the bar liberty, would never enter into the mind of either. Each, in their own province, and for certain well-known and perfectly definite purposes, represents and enforces the law of the land.
In France this is altogether different. The number of judges is, according to our notions of things, enormous. As a general rule, as many as three seem to be present on all occasions. In civil cases, where there is no jury, there is an obvious reason for such an arrangement; but in criminal cases tried before the Cours d’Assises (in which, on important occasions, there will perhaps be five or six judges present), it is by no means easy for an English bystander to understand what conceivable use there is in them. They appear to take hardly any part in what passes, and to leave everything substantially in the hands of the president. There are, moreover, as has been already observed, an immense number of tribunals of all degrees of importance; and as there are many, or at least several, judges in each tribunal, the total number is very considerable indeed. The judges thus form a class by themselves, and are promoted from the less' to the more important positions, according to their merits and opportunities. Thus, a distinguished judge in the provinces may hope to be promoted to Paris, but the most distinguished Parisian advocate never thinks of being a judge. He remains an advocate to the end of his days.
This, of course, puts a wide distinction between the advocate and the judge; but there is another circumstance which has a still stronger tendency in that direction. There is a regular “hierarchy,” to use the French phrase, of official advocates, who occupy a position altogether distinct from that of the body of the profession. Every Imperial court has its procureurs impériales, its procureurs-généraux, and its avocats-généraux, who are not only public prosecutors in criminal cases, but have also a variety of functions in the administration of civil justice. Thus the French avocat has two careers before him,—he may take the official, or he may take the professional line; but these two careers are distinct, and are even, in some respects, opposed to each other. In England, the counsel who prosecutes a criminal on Monday, defends others for just the same sort of offences on Tuesday. There are, no doubt, a few cases in which the Government have standing counsel. Thus there are counsel for the Treasury, the Mint, the Admiralty, and some other public offices, to say nothing of the Attorney and Solicitor General; but there is no palpable and obvious distinction between the official advocates and their unofficial colleagues. They wear the same dress, sit in the same seats, receive briefs from their public clients just as other barristers would from private clients, and are candidates for the common run of business—as is the case with other members of the profession. It is very different in France. The official bar, the “ministère publique," as it is called, forms a class by itself quite distinct from the general body of advocates. In all criminal, and in some civil cases, the procureur or avocat général, or his substitute, acts a part something like that of an English judge-advocate. He sits on the bench with the judges, he wears a semi-judicial costume, he has a variety of powers arising from his official position, and he is paid by the Government which appoints him. It is not in human nature that all this should not put a broad distinction between the official and the private advocate, and lead to a state of feeling between the bar and the bench, and between the official and unofficial bar, quite unlike that which exists in England. When an English barrister addresses English judges he always feels that he is addressing men whom he thoroughly understands, and who, in their turn, thoroughly understand him. He is generally conscious that he is addressing those who are not merely his superiors in rank and standing, but also in legal knowledge and experience.
Again, when an English barrister appears against the Crown, either for the sake of defending a prisoner, or in arguing upon a civil question which affects the Government directly or indirectly, his feelings are precisely the same as in any other case. He and his antagonist are on perfectly equal terms. The one has no more a permanent interest in the Crown than the other has in the public. Their parts will probably be reversed to-morrow, and in the meantime they are each no more than ordinary barristers, bound by exactly the same rules, and discharging duties precisely similar in every essential respect. So, as to the judge, it never enters an English barrister’s head for a moment that the judge takes the smallest official interest in the result, or has any sort of bias either for or against the success of authority. With a French advocate the case is altogether different. There need not be any reason why he should be particularly respectful to the judges, except on the strength of their official position. There is no particular reason to suppose that they will be his superiors either in ability, experience, or character. They are not his natural chiefs, nor are they men in whom he is certain to find a strong sympathy with his principles of conduct and habits of thought. On the contrary, the judges would be more than human if, after a lifetime passed in the service of the Government which has appointed, paid, and promoted them, they did not feel deeply interested in its success and passionately alive to all its interests. Still more true is this of an official bar. A man of a warm temper and ready combative disposition—which is the temperament of the majority of advocates—is very liable to be affected with an excess of zeal, even if his client; is his client; only for a single occasion. When his client is his only client, paying him by a salary and having it in his power to promote him, and when that client is the government, he must be a very rare kind of man indeed if he is not zealous even to slaying; and if these inducements act upon a highly nervous sensitive temperament like that which is so common in France, the result is almost certain to be a want of fellow-feeling and cordiality between the official advocate and his non-official antagonist.
In these points it would seem that the English bar has the advantage of the profession in France; and the points themselves are unquestionably of vast importance in the administration of justice. This great function of civil life is unquestionably in a much more wholesome state on our own side of the Straits than on the other; and it is equally certain that the satisfactory state of the relations between the bench and the bar is one of the great causes of it. It must not, however, be supposed that the French bar does not derive, from these very circumstances, some qualities for which it is pre—eminently distinguished, and which, for many centuries, have formed its glory. It must be admitted that, though the English courts of law are perfectly just, and though there are immense advantages in the general good feeling which prevails amongst the different branches of the profession, the whole profession, taken together—the judges, the barristers, and all the other persons connected with the administration of justice—-do form a united and most powerful body, with interests, feelings, and an esprit de corps of their own very different from that of the nation at large, and not at all times, or under all circumstances, in harmony either with its wishes or its interests. The instinct of an English lawyer, of whatever rank—a perfectly genuine and honest one, no doubt, but still a most powerful one—is always in favour of authority. It used to be intensely hard, and it is still, in many cases, by no means easy to make an English lawyer see faults in the principles of the system which he administers. His views even, when they rise to the highest level that they ever do in practice attain, are always legal. They want, to a certain extent, the popular fibre, and they want something even more permanent and general than that—they want a consciousness of the fact that law is deserving of reverence only if, and in so far as it is founded on true, just and beneficial principles, and that the truth and justice of those principles are altogether independent of their recognition by the legislator. In other words, an English lawyer is placed in a most artificial position. He forms part of a powerful and most useful body; but his thoughts and ways are not those of the people for whose sake he exists, and his instincts and sympathies are liable to be considered as somewhat cold and narrow. He is himself indirectly a legislator, and his sympathies are with the legislature and the Government. He likes what is strong and great, and when he acts the part of a protector and friend to the helpless, he is seldom without a sense of the fact that to do so is a feat of strength and an application of authority.
The unofficial French bar has much less sympathy with authority. It exhibits itself, with far greater ease and propriety, as the protector of the Weak and unfortunate. It appeals more naturally than would be possible in England to general principles of justice. Of course, there is a weak side to all this. The generalities of a French advocate are often very poor, and, when carefully examined, turn out to be sophisms; whereas it very rarely happens that an English lawyer of any kind of pretension to distinction has not what he emphatically calls “a case." He is hardly ever reduced to appeal in terms to sympathies and general principles against the law. Angli sumus, nihil Anglicum à nobis alienum putamus. No doubt the English are quite right, as they always are, and indeed must be, on every occasion ; but still there is room for some admiration of our neighbours. If feeling and a regard for general principles are weaknesses, they are not altogether ungenerous or contemptible weaknesses. Some time ago a man was tried in England for shooting his wife, who had committed adultery under circumstances which no doubt were enough to drive the most patient of men to a perfect frenzy of rage. The popular sympathy in his favour was overwhelming; yet his counsel would not even suggest to the jury that the act, if proved, was anything less than murder, or that they had any sort of right to pay the faintest attention to the aggravation received. It was felt that, in a legal point of view, it was mere proof of motive and malice. Some years ago, in France, a servant, by his mistress’s order, shot dead a. man who came about the house with the intention of seducing a young lady who belonged to the family. The employers and the servant were tried for the murder. They were defended by M. Berryer, and were all acquitted, apparently because the jury approved of what had been done. In this particular instance we think the English bar has the best of the comparison; but many people would prefer the French to the English advocate; the man who will show himself at times to be the organ of natural feeling, even in a somewhat exaggerated shape, to the man who yields to the law of the land a heartfelt bond fide allegiance, even when it acts harshly in the particular case, and even when the life of his own client has to be sacrificed to its harshness. If there is more sturdiness in the one character, it would he usually, and perhaps justly considered, that there is more sweetness in the other. The strong point of an English advocate is when the law happens (as in the case of the high-treason trials in 1794) to be on the popular side. A French advocate is apt to be quite as brilliant when he virtually appeals to justice and morality against the law.
If we look not at the mere every-day practice of the court, but at the broad historical facts relating to the two professions, we shall see this contrast between them exhibited on the widest scale. The English bar has been on the whole, and with exceptions, triumphant. The French bar has been militant and often persecuted. English lawyers can say with just pride, and also with perfect truth, “Our profession has guarded the laws and liberties of England, and has in every great instance made good its point.” The rights of the Church of England against the Pope were maintained by legal precedents. The payment of ship-money was resisted, and ultimately defeated by the same means. By the same means the right to personal liberty, the right of the subject to petition, the right of the jury to decide on the question of libel or no libel, the right of the public to agitate peaceably for political reform, were all established, and their rights are the very foundation, nay, they are the substance of what we mean by political liberty. This is a great thing to be able to say, and it is certain that if it should ever be wanted, the old spirit of the profession would show itself to be changed only in so far as it has become deeper and more general than it was. The French bar has not been so successful. The old parlements were, with many faults, the noblest institutions in France, perhaps the noblest of their kind in Europe. In genius, in learning, in eloquence, in spirit, and in courage, the Palais de Justice was fully the equal—in some forms of those great qualities it was far the superior—of Westminster Hall; but the parliament is gone and the courts at Westminster are now six hundred years old, and bid fair to last as long as the nation itself. The parliament of Paris was the great supporter of another noble institution—the Gallican liberties of the Church in France. We English are too apt in these days to forget that there ever were such things, and to identify the creed of a great part of Europe with that ultramontane Popery which is at present the dominant form of it. There cannot be a more stupid error. The Roman and the Catholic elements in Roman Catholicism are not only distinct, but antagonistic, and the Gallican party in the old Church of France was a root from which a noble tree might have sprung. The Gallican liberties now are with the parliament which protected them; and from day to day the gulf between the religious belief and the masculine thought of France grows wider and wider. The parliament of Paris was for many generations the great bridle on the royal power. They constantly refused to register oppressive edicts, and for so doing were constantly subjected to arbitrary punishments, to banishment and to ruin. Yet, they held their ground with dauntless pertinacity for several centuries; and, not long before the Revolution, gave the crowning proof of their devotion to law and justice, in the teeth of irresistible power. Whether or not the same can be said of the later French judges, is a question which need not be discussed here; but it can, and ought to be said, in the most emphatic manner, of the later French bar. Men like M. Berryer and M. Jules Favre are the worthy successors and representatives of the old magistracy of France—the noblesse de la robe—and, like many of their predecessors, they have a right to this title in something more than a mere technical sense. They have opposed all that is bad in the French Government as bravely and unsparingly, with such weapons as they possess, as their ancestors opposed them with more powerful weapons. They have been and still are the representatives of all that is lofty, and free, and generous. If their efforts in this direction have been less successful than in the parallel case in our own country, the fault is not theirs; and, as their direct reward in the shape of success has been less, their indirect reward in respect of honour and sympathy ought to be greater. England has, and France has not, a free Parliament, a free press, and free political action. Our privileges in this respect are due, in no small degree, to the profession of the law. The defects of the French constitution are, in a great measure, the memorials of the defeat of the French bar and of the old French judges, in gallant and desperate efforts to obtain for their own country the kind of liberty which they liked; and the continued existence of these defects is the subject of constant protests by all that is best and noblest in that great profession. If M. Berryer, M. Favre, and a few other advocates of the same way of thinking, would only throw off their robes and take, like sensible men, to stock-jobbing, or place-hunting, they might command their own price. The enemies of French liberty would feel far more secure against its possible resurrection. To understand how it came to pass that the efforts which were so successful in England failed in France, it would be necessary to go through a course of history on the subject. [To explain this was the great object of Sir James Stephen’s Lectures on French History, delivered at Cambridge, in 1850-1.] It will be enough to say here, that there is sometimes as much honour in defeat as in victory, and that if victory gives an opportunity for the display of the more active qualities, defeat enables men to show purer and less interested devotion to a great cause. The bar and the lawyers of England have, with much assistance, won a great victory, and it would be equally unjust and ungrateful to deny that they have contributed considerably to the various good uses in the shape of good government and general reform to which that victory has been put. The battle in France has gone against freedom; but those who fought for it with all their might, and still enter the most earnest protests that words can frame against violations of it, are entitled to far more sympathy, and certainly not less respect, than those who not only appreciate, but wisely and kindly use the rights purchased for them by the struggles of their predecessors. The English bar feels towards the bar of France much as the troops who took the Malakoff' felt towards the troops who were driven out of the Redan. In each case the conquerors had a right to be proud; but in neither case was the defeat shameful. It was not the fault of the regiments who were put upon an impossible task, that they were not properly supported. It is not the fault of the French bar that France does not enjoy many of the blessings with which we are so familiar here.
Of course, there is a good deal of deduction to be made from this. A man would talk wildly who said that the old French parliaments were always, and without reserve, the guardians of liberty. It would be as absurd to say so of them as of our own Parliament or law-courts. They were often the instruments of tyranny, and there are very dark stains on their memory. For instance, the parliaments might have mitigated the hideous barbarities of the ancient criminal procedure. The use of the torture and of the wheel was in their discretion, and they used them unflinchingly and continually. It is true, no doubt, that the English judges and advocates, who did so many magnanimous things in behalf of liberty, saw no sort of objection to the most contemptible absurdities in the administration of civil justice, or to the most hideous cruelties in the administration of criminal justice. If the French courts tortured criminals with fiendish violence and ingenuity for real crimes, the English courts put men to death for trifles with as much indifference as if they were drowning blind puppies in a stable-yard.
We may, however, be thankful to believe that, in both countries, the age of barbarity of this kind has passed away; and we can afford, in looking back, to remember the pleasanter features of the two professions— the successful sturdiness of the one, and the no less gallant and more devoted and disinterested resistance of the other. There is another broad point of view, besides the historical and political one, from which the two professions might be compared, but it can only be glanced at here. There is a curious contrast between their intellectual characters. Each, as might have been naturally expected, represents, in the highest degree, the practical intellect of the country to which it belongs. Every one knows what sort of thing the English bar is. It is exactly like a great public school, the boys of which have grown older, and have exchanged boyish for manly objects. There is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion, expressed in exactly the same blunt unmistakeable manner. People accustomed only to more quiet and conventional forms of behaviour, would be altogether bewildered at hearing the sort of things which the British barrister will say to his learned brother, especially on circuit, if he thinks the occasion requires it. The general intellectual calibre of the profession is just what might be expected from manners of this stamp. There are to be found in Westminster Hall as much industry, as much hardheadedness, as much exact thought, as powerful memories, and as much superficial knowledge of the world—that sort of knowledge which comes not from reflection, but from observation—as could be found in any body of men in the world of the same number. The bar are a. robust, hardheaded, and rather hard— handed set of men, with an imperious, audacious, combative turn of mind, which is sometimes, though not very often, capable of bursting out in the form of eloquence. Their learning is of the same sort. It is multifarious, ill-digested, and ill-arranged; but collected with wonderful patience and labour, with a close exactness and severity of logic which is unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.
We do not profess to be able to form an opinion of the French bar in a social point of view, but looking at what they have written, at the manner in which they do their business, and at the regulations of the profession, it is impossible not to see how strong is the contrast between them and their English brethren. They are far more carefully and specially educated for their profession than English lawyers. A man must have satisfied tests of learning both literary and legal of no small stringency before he can be put on the French law-list. When he is there he is subjected to a real discipline far more serious than anything that exists in England. His professional rules, or what is perhaps rather affectedly called his “religion d'avocat,” are far stricter than those of an Englishman. For instance, an English barrister's maxim is that all is fish that comes to his not in the shape of briefs. A French avocat is, to some extent—a real and appreciable extent—responsible for the character of his cause. He is by no means so highly paid in money as an English barrister. There are, probably, as many men at the English bar who make £8,000 or £9,000 a year as there are at the French bar who make half the money. One reason of this is, that much of the business which comes before English courts of law is otherwise settled in France—by the administration, or by tribunals and chambers of commerce. A French barrister, again, is brought into personal intercourse with his client. You may go to your avocat in the-first instance without having recourse to an attorney. This gives him more of a personal interest in his causes, and leads him probably to take a less technical view of the subject than an Englishman. An Englishman, again, has to make his own way and get his business as he can, and as he is forbidden to ask for it directly or indirectly, he often has to pass long years of brieflessness. A French avocat, if he is industrious and able, has always opportunities of showing what he has in him. He is pretty sure to be nommé d’office to defend prisoners, and he can distinguish himself in gratuitous causes according to special arrangements made for that purpose. All these things tend to give the French bar a less violent, less eager, less pushing character than that of the English profession. They both can and do look more to the graceful side of the business, and are inclined to make more of their position as advocates, and less of the profits, pecuniary and official, of advocacy than the English.
The great French law-books are a striking instance of this. There are in France, as in England, technical books which are simply tools of trade; and, as far as a slight experience goes, we should say they were by no means so good as the parallel books in England. They are less like books and more like indexes ; but there is a class of French law-books the like of which can hardly be said to exist in England, and which it would be highly desirable for English lawyers not only to read, but, in some respects, to imitate. Here we arrive at a point at which we must take leave of the subject. It would be hard on our feeders to ask them to read a dissertation on the merits and failings of Domat, Pothier, Emerigon, and others of more modern date, but they have merits which hardly any English writer on law has ever understood; and it is high time both to understand and to acclimatize them.
Cornhill Magazine, December 1864.