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The Lost Art of Invective

A. W. Free, L.L.B.

"The Quarterly Review — answers generally to the Index Expurgatorius of Rome. If a book was put in the latter it was a sign it was worth reading; if a book is abused in the former, it is a proof that the views of its author are wide, his language vigorous, and that his philanthropy is not guided exclusively by Debrett and Burke in its sympathies. . . . It is melancholy to think that the majority of the English landed gentry and of those to whom their education is entrusted have no other ideas on political subjects but what are infused into them by this journal, in which the most grotesque prejudices, everywhere else exploded, are stated as axioms, and embodied in a style which when open it does not deviate into mere scurrilous ribaldry, is heavy, batbarous, insipid and pedantic."

This delicious passage is, of all things, part of a footnote appearing in a serious text book of Roman Law. This book is titled "Introduction to the Study and History of the Roman Law," by John George Phillimore, was published in 1848 by William Benning and Co., law booksellers, 43 Fleet Street, London, and I bought it because I thought it would assist me in the study of the Roman Law. It was not until I had taken it home that I discovered a preface and realised that I had a treasure. That preface contains some magnificent invective to which the trifle I have already quoted is but a hors d'oeuvre.

Having, after some years of miserly gloating, brought myself to the point of sharing out my treasure with the readers of "Spike," I claim as recompense an audience for this belated funeral oration beside the uncared-for grave of dead Invective.

"Invective! Brave British broadsword, more manly than Iron, the Rapier; incomparable with that blackguards' club Abuse.

What hand hath slain thee? Two hands there were, the one of Science, the other of Democracy. Science prepared the crime by alienating those who used thee, enslaving them to horrid Fact. Thou wast aye the champion of what men thought, delighting in the conflict with a difference, and therefore false, perverted and pernicious view. But no, there is no battle, for men are feebled and will always bow to the abitrament of this new upstart ruler, Fact. And if Fact cannot be found they cool their fighting ardous searching for him. And so they practice dwindled. Then came Hydra-headed, stuttering Democracy, bashful and touchy on its new brass throne. It could not stand straight talk. The robust manner of the Englishman must be restrained. John Bull must substitute for You-be-damned the suave But-don't-you-think. And so our race was put in double chains as slaves of Fact and Fear-of-Hurting-Feelings. And thou, good friend, fell out of work and of starvation died. But of thy deeds there are recorded some which surely must preserve thy memory until the end of time."

Returning from the cemetery I chat with you and say: "Invective was a sterling fellow, but out of place in this generation. One good custom might corrupt a world, and I like to see old orders changing, but it is a shame that the good customs of the older orders should be entirely lost. For efficiency we have lost picturesqueness, for exact thinking we have lost exuberance of style. Nowadays no one who has normal intelligence will allow himself to get worked up about anything and that makes life dull." Then I fish in my pocket and produce a paper, saying, 'Look how this chap with a good case loses himself in the joy of invective and then suddenly realises what he is doing, and apologises by saying 'and any other agreeable sounding alliteration you can think of."

The paper is a cutting from "The New Zealand Law Journal" of the 11th June, 1929, and I direct your attention to a part of the vivacious London letter from "Inner Templar." He is discussing differences between the eminent barristers of last generation and of this. "We all know," I comment, "that eloquence is no longer heard in Court, and our betters tell us how Evidence now rules where Persuasian once was master, and what is this but another aspect of the dominion of Fact, 'Inner Templar' shows how strong a hold Fear-of-Hurting-Feelings has taken of the Courts."

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"We know that so far from the leaders of to-day being of more value than those of yesterday, the reverse is probably the case; their acumen is probably as great, but their guts are infinitely less. Many of our present day leaders are in a way reckless people, never as ready to put up a battle to the death against the judge as they are ready to put up the fee as high as it will go against the client. They are all very nice, and I am sure they are very clever, but I sometimes think they are rather poor stuff (I am not sure that your learned leader who came over to the Privy Council some time ago did not feel the same way about them). The un-warlike and, it must be confessed, the unsporting element tends to predominate. The older judges comment audibly and disappointedly that there are no longer any 'bruisers' at the Bar, an epithet whose contempt is affectionate merely, and bespeaks not satisfaction but regret. The younger judges do not share this view but welcome the atmosphere of sweer reasonableness between Bench and Bar and between Bar and Bar, and applaud and encourage the tendency to politeness rather than persistence, conciliation rather than conflict, tact rather than tactics, and any other agreeable sounding alliteration you can think of which represents a high ideal of Court conduct. but a singularly little concern for the interest of the client."

Warming to my subject, I continue "Barristers, Parliamentarians, newspapers, and people generally are losing that robustness of manner which was supposed to be typical of the Englishman.

Arthur Balfour was more nearly the typical Englishman of his generation than John Bull, and Uriah Heep will probably be typical of the next. The price of progress is not exorbitant, but one grudges payment of it. Why should scientific thinking and solicitude for everybody else's pride, class consciousness, dignity, or whatever one should call it, emasculate our manners."

Now we have reached my fireside, and you can read some of the work done in collaboration by invective and Mr. Phillimore.

Mr. Phillimore found distasteful to him in 1848 both English Law and English legal procedure. He writes: "It is impossible that the law can continue much longer without reform, and that the abuses which prevail in it, from the double summons of jurors to the nefarious proceedings before parliamentary committees, from the court of quarter sessions to the highest court of appeal (in both of which a body of men may have never opened a law book in their lives have a right to vote) can be tolerated much longer, even by us."

Mr. Phillimore was in a great hurry. Quarter sessions are still lay benches, and any peer can vote on an appeal, although no peer other than Lords of Appeal (except, of course, Lord Chancellors) have exercised the privilege for many decades.

Mr. Phillimore reaches his greatest height on the subject of "case law." I shall leave you with him and retire for a while.

"Demosthenes told the Athenians that their military expediations against Philip reminded him of nothing so much as the boxing of a barbarian; for, said he, "If the clown is struck here, he moves his hands here; if there, he moves his hands there: his arms follow the blow; but he has no system, no foresight, by which to guard against and to anticipate it."

"It is just so with us in civil matters. A particular case is decided, and the law is then for the first time ascertained. Meanwhile, it is deposited, not in a code, but in the breast of the judge. There is no general and authentic collection of principles from which the theory of law can be deduced. The circumstance that, in the opinion of one judge, prevents a given case from being a precedent for another, does not so qualify its effect in the opinion of his colleague. In short, our judges legislate without the responsibility of legislation, or the control of any constituency; and that not only in a few cases which, perhaps, would be, in any state of things, an inevitable evil, but in by far the majority of those that are brought under their consideration. The power given to them by our detestable system of pleading, as the art of making the plainest matter unintelligible is facetiously called, alone (I speak of the common law) is as prodigious and as little known by the public at large, as it is misplaced and impolitic. Hume said that, in the actual state of society, the wars of European sovereigns made him always think of a match of cudgel-playing in a china shop, and this page 34 happy illustration has, over and over again, occurred to me in the Court of Exchequer, when I have seen the welfare or absolute ruin of whole families depending on the construction that the judge might choose to put on an uncouth and unintelligible jargon invented in the dark ages, and with which the real merit of the cause had no sort of connexion; when I have seen the most precious rights, the means of education for youth, of comfort for age, and, in this most money - worshipping of countries, of respectibility itself perhaps, the sport of conflicting gibberish, hanging on some wretched quibble, and dancing on the tremulous balance of irrational caprice; when I have watched the distempered strength of a contracted and disproportioned intellect, like the Homeric courser bounding without bit or bridle in the fresh pastures, disporting itself in the mere wanton exuberance of pernicious subtilty, and have known, not only that it was a perfect chance which way the wind of chicane might happen to blow, but that by all his sophistry and crochets, all his shadowy speculations, false refinements, mock difficulties, provoking pedantry, and unnecessary doubts, that by every quotation from the writers of an age to which every principle of jurisprudence was as much unknown as the law of gravitation, the judge was, unconsciously no doubt, aggravating the distress of the actual suitor as well as scattering broadcast the seeds of future misery and litigation."

What would you not give to be capable of such condemnatory enthusiasm? But the twentieth century atmosphere is, alas, too enervating.

Not only the law but society at large fell under Mr. Phillimore's lash.

"We live," he wrote, "in an age when, in a mere effusion and ecstasy of spontaneous baseness (for which, as the records of Carthage are destroyed, no parallel can be found), a subscription has been raised to reward a broker in railway shares for making his own fortune."

If only we could hope that the legal text writers of to-day would see fit to mitigate the dreariness of their productions with such ornaments as these.