Without joining in the exaggerated invectives against lawyers, which Bentham sometimes permitted to himself, or making one portion of society alone accountable for the fault of all, we may say that circumstances had made English lawyers in a peculiar degree liable to the reproach of Voltaire, who defines lawyers the 'conservators of ancient barbarous usages'. The basis of the English law was, and still is, the feudal system. That system, like all those which existed as custom before they were established as law, possessed a certain degree of suitableness to the wants of the society among whom it grew up -- that is to say, of a tribe of rude soldiers, holding a conquered people in subjection, and dividing its spoils among themselves. Advancing civilization had, however, converted this armed encampment of barbarous warriors in the midst of enemies reduced to slavery, into an industrious, commercial, rich, and free people. The laws which were suitable to the first of these states of society, could have no manner of relation to the circumstances of the second; which could not even have come into existence unless something had been done to adapt those laws to it. But the adaptation was not the result of thought and design; it arose not from any comprehensive consideration of the new state of society and its exigencies. What was done, was done by a struggle of centuries between the old barbarism and the new civilization;between the feudal aristocracy of conquerors, holding fast to the rude system they had established, and the conquered effecting their emancipation. The last was the growing power, but was never strong enough to break its bonds, though ever and anon some weak point gave way. Hence the law came to be like the costume of a full-grown man who had never put off the clothes made for him when he first went to school. Band after band had burst, and, as the rent widened, then, without removing anything except what might drop off of itself, the hole was darned, or patches of fresh law were brought from the nearest shop and stuck on. Hence all ages of English history have given one another rendezvous in English law; their several products may be seen all together, not interfused, but heaped one upon another, as many different ages of the earth may be read in some perpendicular section of its surface -- the deposits of each successive period not substituted but superimposed on those of the preceding. And in the world of law no less than in the physical world, every commotion and conflict of the elements has left its mark behind in some break or irregularity of the strata: every struggle which ever rent the bosom of society is apparent in the disjointed condition of the part of the field of law which covers the spot: nay, the very traps and pitfalls which one contending party set for another are still standing, and the teeth not of hyenas only, but of foxes and all cunning animals, are imprinted on the curious remains found in these antediluvian caves.
In the English law, as in the Roman before it, the adaptations of barbarous laws to the growth of civilized society were made chiefly by stealth. They were generally made by the courts of justice, who could not help reading the new wants of mankind in the cases between man and man which came before them;but who, having no authority to make new laws for those new wants, were obliged to do the work covertly, and evade the jealousy and opposition of an ignorant, prejudiced, and for the most part brutal and tyrannical legislature. Some of the most necessary of these improvements, such as the giving force of law to trusts, and the breaking up of entails, were effected in actual opposition to the strongly-declared will of Parliament, whose clumsy hands, no-match for the astuteness of judges, could not, after repeated trials, manage to make any law which the judges could not find a trick for rendering inoperative. The whole history of the contest about trusts may still be read in the words of a conveyance, as could the contest about entails, till the abolition of fine and recovery by a bill of the present Attorney-General; but dearly did the client pay for the cabinet of historical curiosities which he was obliged to purchase every time that he made a settlement of his estate. The result of this mode of improving social institutions was, that whatever new things were done had to be done in consistency with old forms and names; and the laws were improved with much the same effect as if, in the improvement of agriculture, the plough could only have been introduced by making it look like a spade; or as if, when the primeval practice of ploughing by the horse's tail gave way to the innovation of harness, the tail, for form's sake, had still remained attached to the plough.
