A Random Stroll Amongst Anthony Trollope's Lawyers

In discussing Trollope's attitude toward lawyers, one should be aware of the structure of the English Bar and the distinction between solicitors and barristers. While both are members of the legal profession, their functions differ, as did Trollope's attitude toward them. A solicitor deals directly with his client on such matters as conveyancing real property, drawing up of wills and estate planning, negotiating and drafting agreements and other papers and documents, and offers general legal advice. The solicitor is often the family attorney.

The word “attorney” applies only to solicitors. A barrister would be insulted to be referred to by that name. McMaster, supra note 5, at xi. This essay uses the term generically to apply to both solicitors and barristers.

Barristers are independent of one another and self-employed, and usually work in chambers, rather than firms. Two self-employed barristers in the same chamber can advocate on the other side of a dispute against each other, as they are independent of one another. Members of a solicitors’ firm cannot represent two sides of a legal dispute.

Trollope's treatment of solicitors is often benign. They are professionals and respected members of the legal profession and the community:

There is no form of belief stronger than that which the ordinary English gentleman has in the discretion and honesty of his own family lawyer. What his lawyer tells him to do, he does. What his lawyer tells him to sign, he signs. He buys and sells in obedience to the same direction and feels perfectly comfortable in the possession of a guide who is responsible and all but divine.

The Eustace Diamonds 91 (Oxford Univ. Press 1973) (1872).

Solicitors are the protectors in the present and future of a family's estate and wealth who assure future generations of their status and inheritance according to the laws of inheritance and customs of English society. They guard a family's personal and financial interests against the outside world and sometimes from those within the family who would undermine it.

R. D. McMaster elaborates that a solicitor “[has] the personal and transient pecuniary interests of members of the family at heart, but also the inherited dignity and welfare of the estate in general, and he must exercise reason, scholarship and the law's machinery to protect both. He has to contend with the wickedness, passion, and perversity of his client's enemies, but also with the indifference of the people he represents.” McMaster, supra note 5, at 76.

Samuel Camperdown is such a solicitor.

“A better attorney to which his life was devoted, did not exist in London than Mr. Camperdown. To say that he was honest is nothing. To describe him simply as zealous, would be to fall short of his merits. The interests of his clients were his own interests, and legal rights of the properties of which he had charge, were as dear to him as his own blood.” The Eustace Diamonds, supra note 13, at 253.

Mr. Camperdown doesn’t believe her and maintains she had no right to the necklace as it was an heirloom and would stay with the Eustace family. He insists the estate keep the diamonds until the dispute is settled. Lizzie refuses to turn them over, then says they have been stolen and lies to the police. Later, the jewels really are stolen. The solicitor consults a learned barrister, Thomas Dove, who writes an opinion that pearls and jewels are paraphernalia, which can be given before death and become the property of the widow.

Id. at 226–28.

Often Trollope uses lawyers’ names to highlight a personality trait. In The Macdermots of Ballycloran, the barristers are named Allewinde and O’Blather. Other times, the names are merely for purposes of humor. In Dr. Thorne he writes:

“[Mr. Gazebee] was the junior partner of Gumption, Gazebee & Gazebee, of Mount Street … The firm had been going on for a hundred and fifty years, and the designation had often been altered; but it always consisted of Gumptions and Gazebees differently arranged, and no less hallowed names had been permitted to appear. It had been Gazebee, Gazebee & Gumption; then Gazebee & Gumption; then Gazebee, Gumption & Gumption; then Gumption, Gumption & Gazebee; and now it was Gumption, Gazebee & Gazebee.”

Dr. Thorne 442–43 (Oxford Univ. Press 1989) (1858).

Trollope's solicitors reflect a substantial range in social status, respectability, integrity, and ability. A firm's or solicitor's name often frames character, class, reputation or competence. The firm Slow and Bideawhile appears in six novels.

Doctor Thorne (1858); Framley Parsonage (1861); He Knew He Was Right (1869); Miss Mackenzie (1865); Orley Farm (1861) & The Way We Live Now (1875).

Mr. Furnival reluctantly then goes to speak with Slow and Bideawhile, who refuse to take on the matter.

As their names suggest, they are neither efficient nor necessarily able. In Orley Farm, Mr. Slow is ‘Old Slow’.

Id. at 263–64.

A theme raised in several novels is the decline in solicitors’ ethics, a generational shift that reflects a conflict between traditional mores and sharper practices by younger solicitors. More senior respectable solicitors, Slow and Bideawhile, Round and Crook, Mr. Camperdown & Son represent a past where professional standards were higher than the present, which rewards shifty practices. In Mr. Scarborough's Family this new environment is recognized by John Grey, Mr. Scarborough's solicitor. He notes the tendency of his partner, Mr. Barry, to sharp practices as reflecting the age.

Mr. Scarborough’s Family, supra note 7, at 600.

As one would expect, Trollope's discussions of attorneys are infused with differentiations based on status, class and wealth. The nineteenth century legal profession was highly stratified as it is today. Not surprisingly Trollope made much use of those differences in his descriptions of lawyers, particularly in his later novels. To return to the firm of Gumption, Gazebee & Gazebee:

Mr Gazebee was a very different sort of gentleman; he was the junior partner in the firm of Mount Street, a house that never defiled itself with any other business than the agency business, and that in the very highest line. They drew out leases, and managed property both for the Duke of Omnium and Lord de Courcy; and ever since her marriage, it had been one of the objects dearest to Lady Arabella's heart, that the Greshamsbury acres should be superintended by the polite skill and polished legal ability of that all but elegant firm in Mount Street.

It must not be supposed that Messrs. Gumption, Gazebee & Gazebee were in the least like the ordinary run of attorneys. They wrote no letters for six-and-eightpence each: they collected no debts, filed no bills, made no charge per folio for “whereases” and “as aforesaids;” they did no dirty work, and probably were as ignorant of the interior of a court of law as any young lady living in their Mayfair vicinity. No; their business was to manage the property of great people, draw up leases, make legal assignments, get the family marriage settlements made, and look after wills. Occasionally, also, they had to raise money; but it was generally understood that this was done by proxy.

Doctor Thorne, supra note 17, at 442–43.

On the other hand, some of Trollope's solicitors were not gentlemen. Of Squercum he writes: “it must be owned, though an attorney, he would hardly have been taken for a gentleman from his personal appearance.”

2 The Way We Live Now, supra note 22, at 70. “He was a mean-looking little man, not yet above forty, who always wore a stiff light-coloured cotton cravat, an old dress coat, a coloured dingy waistcoat, and light trousers of some hue different from his waistcoat. He generally had on dirty shoes and gaiters. He was light-haired, with light whiskers, with putty-formed features, a squat nose, a large mouth, and very bright blue eyes. He looked as unlike the normal Bideawhile of the profession as a man could be;” Id.

Toward the bottom of the legal profession rests Samuel Dockwrath, a sleazy solicitor, who has taken over his father-in-law's legal practice, and in going through his papers, discovers evidence that indicates a witness in a case involving a disputed will may have perjured herself.

This is the subject of Orley Farm, supra note 19, at 17–23.

Trollope informs us that in normal circumstances Round & Crook had no personal or business dealings with someone of Dockwrath's ilk. If some intercourse between them became necessary, Round and Crook's confidential clerk would have seen him, “but even then the clerk would have looked down or him from a great moral height and Dockwrath knew it.”

Dr. Thorne, supra note 17, at 157.

A few of Trollope's solicitors are knaves. In The Macdermots of Ballycloran,

The Macdermots of Ballycloran, supra note 10.

Hyacinth Keegan, the agent and son-in-law of Joe Flannelly, is an attorney who aspired to become a country gentleman by acquiring the property. He threatened to evict the Macdermots and swore to make beggars of the whole family and developed a plan to do so. As Trollope described him:

He was a hardworking man … he was a plausible man, a good flatterer, not deficient in that sort of sharpness which made him a successful attorney in a small provincial town. … Principle had never stood much in his way. … In appearance he was a large, burly man, gradually growing corpulent, with a soft, oily face … it concealed the malice, treachery and selfishness which his face so plainly bore without it. His eyes were light, large and bright…his mouth was very large, and his lip heavy, and he carried a huge pair of brick coloured whiskers. His dress was somewhat dandified.

Id. at 10, 147–49.

Thady's sister, Feemy, considered herself engaged to Captain Ussher, a police officer charged with the detection and destruction of the illegal poteen stills scattered throughout the neighboring mountains, and who was, quite naturally, hated by the local peasants.

Poteen or potheen (pronounced puhcheen) is Irish moonshine. It was traditionally distilled in a small pot still, and the term is a diminutive of the Irish word “pota”, meaning pot. See Poitin / Poteen, Difford’s Guide, https://www.diffordsguide.com/beer-wine-spirits/category/538/poteens-poitins (last visited April 24, 2021).

Another corrupt solicitor is Mr. Moylan, who appears in Trollope's second novel, The Kellys and the O’Kellys.

The Kellys and the O’Kellys (Oxford Univ. Press 1978) (1848).

Moylan, the solicitor and Anty Lynch's agent, is bribed by Barry to perjure himself by charging the Kellys with conspiracy to obtain Anty's fortune. Trollope describes Moylan as “an ill-made, ugly, stumpy man, about fifty; with a blotched face, straggling sandy hair, and grey shaggy whiskers. He wore a long, brown greatcoat, buttoned up to his chin, and this was the only article of wearing apparel visible upon him.” Moylan and Barry are foiled.

The Kellys and the O’Kellys, supra note 37, at 228–29. In what became a common theme in Trollope's novels: true feelings of love triumph over the pursuit of someone for the financial bounty the betrothal would bring.

Initially, Trollope detested nearly all barristers:

A barrister can find it consistent with his dignity to turn wrong into right and right into wrong, to abet a lie, nay to disseminate, and with all the play of his wit, give strength to the basest of lies, on behalf of the basest of scoundrels.

The New Zealander 63 (Trollope Society 1995) 1972.

A useful source to examine Trollope's early antagonism to barristers is The New Zealander, his nonfiction ruminations on the condition of England, its morals and the social institutions of the time.

The New Zealander was written in 1855–56 after publication of The Warden. Trollope submitted the manuscript to his publisher at the time, William Longman, who rejected it. Though Trollope substantially rewrote the manuscript, it remained unpublished until 1972. N. John Hall, Editor's Introduction to The New Zealander, supra note 41, at xiv. The title, The New Zealander, has nothing to do with New Zealand. According to N. John Hall, it derives from a prophecy made in 1840 by the historian and Whig politician, Thomas Babington Macaulay, that England would eventually decay, that one day a visitor from New Zealand would sketch the ruins of St’ Paul's Cathedral. Id. at vi. Trollope recycled material from several chapters in The New Zealander into his novels, notably in The Three Clerks and Doctor Thorne. Id. at xx–xxii. Some of the themes of The New Zealander, particularly relating to his view of lawyers, appear throughout his work.

His scenario demonstrates that the legal system seeks not the discovery of the truth but is more interested in aiding the guilty defendant to escape punishment. Trollope assumes the apprehended criminal may be willing to confess through a guilty conscience, but the arresting constable, and later the magistrate won’t ask a question without warning the accused that he answers at his peril. According to Trollope the magistrate should urge the accused to cleanse his guilty breast, speak the truth and make peace with God.

The New Zealander, supra note 41, at 55.

Trollope acknowledges that barristers retain a high position in the community and are gifted at what they do but censures the legal profession for making the object of the law not facilitation of the discovery of the truth, but rather the escape of the criminal from justice.

Hall, supra note 42 at xxxi.

Trollope believed the legal system should reach just results. Social justice concerned the meting out of rewards and punishments as the consequence of right or wrong decisions. The law as he depicted it was often an impediment in this process.

Lansbury, supra note 8, at 95.

Trollope's objections to barristers were twofold. First, the law and the lawyers upholding it should seek the truth from which justice results. He was outraged that barristers put loyalty to their clients ahead of the search for truth and justice. The adversary system was all wrong as the enactment of laws in accord with the law of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong.

R.D. McMaster, Law and Society, in Oxford Reader’s Companion to Trollope 314 (R.C. Terry ed. 1999).

Many non-lawyers question how a defense attorney can represent a particularly heinous scoundrel, who seems obviously guilty of the pending charges. The answer is that every defendant, no matter how repugnant, has the right to an attorney zealously arguing on his or her behalf. Every defendant is entitled to a presumption of innocence until proven guilty. Representing an accused person of an evil act doesn’t make a lawyer an evil person. There is a divergence between legal ethics and the ethics of the general community. The lawyer has a duty of utmost loyalty to the client.

From 1844 to 1860 Trollope was a supervisor and inspector in the postal service in Ireland with excursions to England and foreign jurisdictions. His familiarity with Irish trials, which were more frequent and cross-examination supposedly more vicious than in England, was largely gleaned from newspapers where cases and transcripts of testimony were reported.

Drinker, supra note 3, at 51.

One of his postal responsibilities was to investigate and prosecute thefts from rural post offices in Ireland. In 1848 complaints were made about letters and cash lost from the mails that passed through the town of Tralee. He wrote a letter from a fictitious father in Newcastle to an equally fictitious daughter in Ardfert and enclosed a marked coin. The letter was sent in a bag of mail to its destination. The letter bag had to be opened in Tralee, a distributing center where letters were consigned to other bags for delivery. When the proper bag reached Ardfert, Trollope's letter was missing. Trollope and a constable with a search warrant rushed to Tralee and found the marked sovereign in the purse of Mary O’Reilly, assistant to the postmaster.

R.H. Super, Trollope in the Post Office 19 (1981).

As a witness at a second trial in July 1849, Trollope was subject to cross-examination by defense counsel Isaac Butt, later leader of the Home Rule Party in the House of Commons. Trollope was affronted when it was suggested that he had placed the marked coin in Ms. O’Reilly's pocket, for both in private and in his public character as the supervisor and inspector, he was of impeccable probity. Trollope joked and jousted with Butt and seemed to get the better of the skirmish with the barrister, but the case resulted in a hung jury.

Some of the transcript of the cross-examination appears in N. John Hall, Trollope 109 (1991). The most complete transcript is reproduced in McMaster, supra note 5, at 57–58.

In The Macdermotts of Ballycloran, a barrister, Mr. Allewinde, engages in courtroom bullying, chicanery and obfuscation. He is not just a criminal attorney, but a lawyer for the Crown and thus a representative of the legal profession generally.

McMaster, supra note 5, at 55.

Trollope's most famous barrister is Mr. Chaffanbrass, who practices in the Central Criminal Court, the famous “Old Bailey”, and is described as the “cock of this dunghill”

The Three Clerks 424 (Dover 1981) (1857).

Chaffanbrass is a master of cross-examination, the weapon of choice in criminal cases:

He confined his practice almost entirely to one class of work, the defence namely of criminals arraigned for heavy crimes. . . . . To such a perfection had he carried his skill and power of fence, so certain was he in attack, so invulnerable when attacked, that few men cared to come within reach of his forensic flair ...To apply the thumbscrew, the boot, and the rack to the victim before him was the work of Mr. Chaffanbrass's life, a little man, and a very dirty, little man. He has all manner of nasty tricks about him, which make him a disagreeable neighbour to barristers sitting near to him. He is profuse with snuff, and very generous with his handkerchief. He is always at work upon his teeth, which do not do much credit to his industry. His wig is never at ease upon his head, but is poked about by him, sometimes over one ear, sometimes over the other, now on the back of his head, and then on his nose; and it is impossible to say in which guise he looks most cruel, most sharp, and most intolerable. His linen is never clean, his hands never washed, and his clothes apparently never new.”

The Three Clerks, supra note 56, at 482, 420–22.

Felix Graham, the idealistic junior lawyer in Orley Farm is horrified at the prospect of assisting Chaffanbrass “as though he had been asked to league himself with all that was most disgraceful in the profession’ – as indeed perhaps he had been.”

2 Orley Farm, supra note 19, at 73.

Trollope considered cross-examination a weapon of witness torture without regard to the witness's social status. In Orley Farm John Kenneby, an honest but mentally limited clerk who witnessed the will signed by Sir Joseph Mason but became confused in his testimony, concludes: “I ain’t fit to live with anybody else but myself.”

Id. at 375.

Another unattractive barrister in the first period of Trollope's treatment of lawyers is Sir Abraham Haphazard, the Attorney-General

The Attorney-General, an officer of the Crown, is the titular head of the English Bar. His assistant and deputy is the Solicitor-General. They give advice to the sovereign and government, give opinions on international and constitutional law, and advise departments of government. Until 1895 they could have private practices in addition to their governmental responsibilities, which is how they came to represent certain characters in Trollope's novels. See McMaster, supra note 5, at 108–9.

Haphazard is called upon to advise Reverend Septimus Harding as to whether Harding is entitled to keep the sinecure of Warden of Hiram's Hospital. The income has appreciated greatly, and Harding's prospective son-in-law no less, John Bold, has written in the local newspaper about what appears to be mismanagement by the Church. Harding is a man of conscience and seeks out his son-in-law, Archdeacon Grantly, his friend the aged Bishop, and Sir Abraham. Harding is more interested in being just and easing his conscience than being right.

“He was not so anxious to prove himself right as to be so.” Id. at 35.

Sir Abraham bases his opinion not on grounds of justice and right, but procedure. Through his knowledge of process and technicality, he can take advantage of the weaknesses in his opponent's case. Since Mr. Harding is only a paid servant, he is not technically the correct defendant, and so long as the plaintiffs don’t notice this and alter the technical defect in their papers, their case will be lost.

Id. at 255–57.

The Warden then meets with Sir Abraham. Harding asks if he is legally and distinctly entitled to the proceeds of the property. Haphazard evades an answer, offering qualifications. The barrister informs him that the attorneys for the plaintiff have withdrawn the suit. Harding still inquires whether he is legally entitled to the sinecure. Haphazard doesn’t respond directly. Harding declares he can resign the Wardenship. Haphazard thinks he's crazy. The contrast between the clergyman of conscience and Sir Abraham seeking a victory in a legal case without regard to the issues of morals, conscience or pride is enormous. Haphazard has a similar attitude towards justice as displayed by Chaffanbrass.

In The Bertrams (1859) Trollope summed up his views of barristers performing their professional obligations:

George Bertram: “I doubt whether a practicing barrister can ever be an honest man…They have such dirty work to do. They spend their days in making out that black is white; or, worse still, that white is black . . . . When two clear headed men take money to advocate the different sides of a case, each cannot think his side is true.”

The Bertrams 56 (Alan Sutton 1956) (1859).

Mr. Furnival's romantic fumbling with Lady Mason, combined with Mrs. Furnival's jealousy, and the Birmingham Congress on law reform seem to be comic sidebars to the plot, but as often occurs in Trollope, there are deeper meanings. Trollope's novels are not only about legal events and the actors involved but engage in the Victorian legal culture in a broader sense of history, traditions, community, change, and the meaning of “Englishness”.

Ayelet Ben-Yishai, Trollope and the Law, in The Cambridge companion to Anthony Trollope 156–157 (Carolyn Dever & Lisa Niles eds. 2012).

Trollope's criticism of an adversary system that allows attorneys to defend a client he knows or should reasonably know is guilty plays out in the trial of Lady Mason in Orley Farm. Despite his dogmatic view Trollope offers a fair presentation of the subtleties and ambiguities of actual representation of clients. He creates a legal team of four, only one of which, the idealistic Felix Graham, truly believes Lady Mason innocent, and if he thought she was guilty would immediately withdraw from the case.

For an interesting discussion of this issue, see Marc M. Arkin, Trollope and the Law: On the Victorian Novelist and the Moral Question of Defending the Guilty, 26 New Criterion 23 (2007).

Lady Mason directly approaches her barrister, Mr. Furnival. This was contrary to normal practice as barristers did not meet with a private client because of the concern they might lose their objectivity in the handling of a case.

Usually, the solicitor is the barrister's client. The solicitor manages the general conduct of the case and engages whichever barrister seems likely under the circumstances to plead the case most effectively in court. McMaster, supra note 5, at 34. When Furnival seeks out Chaffanbrass, in a sense he is acting as a solicitor for Lady Mason.

In meeting Chaffanbrass, Mr. Furnival emphasizes Lady Mason's status in society as proof of her innocence. He hoped that the accusation against her would be of forgery:

The stronger and more venomous the charge made, the stronger would be public opinion in favour of the accused, and the greater the chance of an acquittal. But if she were to be found guilty on any charge, it would matter little on what. Any such verdict of guilty would be utter ruin and obliteration of her existence.

1 Orley Farm, supra note 19, at 341.

Upon hearing Mr. Furnival's story, Chaffanbrass responds, “Ah…a clever woman! An uncommonly sweet creature too,” said Mr. Furnival.

Id. at 268.

Lady Mason still needs a solicitor. Chaffenbrass, suggests Solomon Aram. “Isn’t he a Jew?” says Furnival. Chaffanbrass responds: “Upon my word I don’t know. ... . He's an attorney, and that's good enough for me.”

Id. at 269.

This interchange between Furnival and Chaffanbrass represents more than the status differences between an esteemed barrister and member of Parliament and the Old Bailey practitioner, described as a “dirty little man.”

Id. at 268.

Furnival, a gentleman himself, describes Lady Mason in terms of her good character, social status and connections. She knows the best people, visits and stays with them and has standing in the community. In Furnival's view, the graver the charge against Lady Mason, the more likely an acquittal, as she is a member of good standing in the community and therefore adheres to the moral norms of society. People of her rank and position follow the law.

Chaffanbrass has a different world view as to the law and legal norms. Status and friends are immaterial. What matters is what can be proved against those accused. One's place in society and whether one holds the shared values of the community are irrelevant. Chaffanbrass's concern is what is posited by the law and whether the client's case be proven before a jury.

Seemingly all of the lawyers in Orley Farm are attending an International Conference in Birmingham at which the advantages of the European civil law system over English common law are presented by European lawyers, most prominently by Von Bauhr, who gives a three-hour speech in German, a language many of the attendees don’t understand!

A very perceptive recognition by Trollope is the role that bar associations play in the profession in bringing together at least temporarily, lawyers of differing status in the profession, so the Chaffanbrass's and Dockwraths of the profession can mingle with the good and great of the bar.

English law was common law, based on decisions by judges and ruled by the precedent of past judicial decisions.

The common law is a body of law based on judicial decisions of courts and other bodies. It was “common” in that it applied in all of the Sovereign's courts. Its defining characteristic is stare decisis, the principle that previous judicial decisions serve as precedent for future cases. If a matter before a common law court has similar basic facts to a prior decision, a court is bound to follow the prior decision. If the parties disagree on the precedent or prior case law, a common law court will look at prior decisions on similar facts and synthesize them to apply to the facts before the court. If the facts in the current case are substantially different from a past decision, and statutes are silent or ambiguous on the issue, the court will issue a decision as a matter of first impression, which is based on past decisions that are relevant but will include the judge's opinion as how this new set of facts should apply.

A contrasting view of the law, emergent in the nineteenth century, was positivism. Positive law refers to those laws written as statutes or court decisions and enforced by society. Thus, positive law is man-made law, rather than based on inherent moral codes and rights. While common law is based upon published judicial decisions, in civil law systems codified statutes predominate.

Legal codes can be traced back to the sixth century Emperor Justinian (527–565), whose code ruled the Byzantine empire for nine hundred years.

Trollope's criticisms of cross-examination and the responsibility of attorneys to their clients as opposed to the pursuit of truth in seeking guilt or innocence would seem to be met by the civil law systems, where the judge makes the objective decision based on legal codes. Common law lawyers in Trollope's novels such as John Grey, Samuel Camperdown, and Thomas Dove believe the laws of inheritance and the passage of land and property represent natural law ideals of the fundamental truth and honesty of abstract justice, a reflection of divine will and absolute moral principles. This view contrasts with the positivist position that considers law merely the result of human preferences. Trollope's criticism of the adversary system is that it does not seek inalienable truths.

When Trollope refers to Felix Graham as the “English Von Bauhr” he means the young lawyer approaches his clients as if he was a civil law judge, pursuing right and refusing to represent wrong.

I Orley Farm, supra note 19, at 177–180.

What Trollope raises in the exchanges between Furnival and Chaffanbrass and in the description of the international congress in Birmingham are jurisprudential questions of natural law versus positive law and the future of the common law system in an English society that was undergoing demands for change in political participation and to the common law system. During the nineteenth century the English common law system was becoming more based upon statutory legislation and adopting positive approaches, a trend that has continued.

Orley Farm generally received good reviews, but critics commented upon Trollope's hostility to lawyers. As with some of his other novels, contemporary and subsequent commentators criticized his errors of legal procedure and the law.

See Todd Shields, Trollope's Legal Mistakes ‘The Great Orley Farm Case’—Can You Forgive Him, 107 Trollopiana 8–19 (Summer 2017); Mr. Trollope and the Lawyers, London Rev. 405 (Nov. 8, 1862) reprinted in Donald Smalley, Trollope: The Critical Heritage 156 (1969) “…Mr. Trollope ought to get his law right. As it is he always gets it wrong.”

In some sense, criticism of his mistakes resembles going to a circus sideshow to see a dancing bear and then quibbling about the beast's technique. The accuracy of the discussion of legal issues is usually subordinate to the novelist's plot or in Trollope's case the characterization of the leading participants in the story. Still, some of his legal errors are jaw-dropping to an attorney: Mr. Furnival sends his clerk, Crabwitz in disguise, to offer a bribe to Dockwrath to drop the matter concerning Lady Mason's perjury;

1 Orley Farm, supra note 19, at 317–20.

Trollope addressed the problems of accuracy for a novelist in Phineas Finn

“The poor fictionist very frequently finds himself to have been wrong in his description of things in general, and is told so, roughly by the critics, and tenderly by the friends of his bosom. He is moved to tell of things of which he omits to learn the nature before he tells of them—as should be done by a strictly honest fictionist. He catches salmon in October; or shoots his partridges in March… And then those terrible meshes of the Law! How is a fictionist, in these excited days, to create the needed biting interest without legal difficulties; and how again is he to steer his little bark clear of so many rocks,—when the rocks and the shoals have been purposely arranged to make the taking of a pilot on board a necessity? As to those law meshes, a benevolent pilot will, indeed, now and again give a poor fictionist a helping hand,—not used, however, generally, with much discretion.” 1 Phineas Finn 267–8 (Oxford Univ. Press 1973) (1869).

Responding to reviewers’ criticism of Orley Farm's legal errors, Trollope thereafter referred legal issues to his friend Charles Merewether, who vetted them for accuracy, and actually drafted Mr. Dove's analysis of heirlooms and paraphernalia in The Eustace Diamonds.

Surprisingly, Merewether's analysis was criticized over a century later by a third year Stanford law student. See Alan Roth, He Thought He Was Right (But Wasn’t): Property Law in Anthony Trollope's The Eustace Diamonds, 44 Stan. L. Rev. 879 (1992).

Trollope informs the reader early on that Lady Mason has forged the codicil. Though the plot turns from a “who done it” to a “why’d she do it,” the ending still presents a surprise. The outcome depends not so much on the law, but the fact that the contending barristers failed to ask the witnesses the proper questions.

SPOILER ALERT: DO NOT READ IF YOU ARE UNFAMILIAR WITH THE OUTCOME OF THE ORLEY FARM CASE! Lady Mason, as the reader knows is admittedly guilty but is acquitted because the plaintiff's attorneys failed to ask a specific question of Bridget Bolster, a witness to the signing of the document at issue in the lawsuit. After the lawsuit, Bolster is dining with Moulder, a commercial traveler and a minor character, who questions her and the second witness, John Kenneby. “’But the paper as we signed’ said Bridget, ‘wasn’t the old gentleman's will—no more than this is;. And she lifted up her apron. ‘I’m rightly sure of that.’…Moulder became angry with his guest…’Wasn’t the old gentleman's will!’ said Moulder. ‘You never dared say as much as that in court.’ ‘I wasn’t asked,’ said Bridget.’” 2 Orley Farm, supra note 19, at 377–78.

The success of Orley Farm marked a significant development in Trollope's writing career and status in life. He had come a long way from his beginnings. His move to London and later resignation from the Post Office reflected that. In An Autobiography he says of Orley Farm after its publication, he felt he had created a position among literary men and secured an income on which he could live in ease and comfort.

An Autobiography, supra note 69, at 106.

Mr. Chaffanbrass's third appearance occurs in Phineas Redux.

Phineas Redux, supra note 57.

He defends Phineas Finn, who is charged with the murder of a political opponent, Mr. Bonteen. Chaffanbrass mistakenly believes Finn is guilty, but he develops a personal interest in him and in obtaining an acquittal.

Id. at 183.

Chaffanbrass demonstrates the quality of introspection and his view of justice when Wickerby, Finn's solicitor, informs Chaffanbrass on the eve of the trial that Finn is anxious to speak with him.

What's the use of it Wickerby? I hate seeing a client—what comes of it? What's the use of it? Of course he wants to tell his own story.

But I don’t want to hear his own story. What good will his own story do me? He’ll tell me either one of two things. He’ll swear he didn’t murder the man.

That's what he’ll say.

Which can have no effect upon me now one way or the other; or else he’ll say that he did—which would cripple me altogether. . . . .

In such a case as this I do not in the least want to know the truth about the murder.

What we should all wish to get at is the truth of the evidence about the murder. The man is to be hung not because he committed the murder,—as to which no positive knowledge is attainable; but because he has been proved to have committed the murder,--as to which proof, though it be enough for hanging, there must always be attached some shadow of doubt. . . . .

I will neither believe or disbelieve anything that a client says to me—unless he confesses his guilt, in which case my services can be of little avail.

2 Phineas Redux, supra note at 57, 177–80.

The evolution of Chaffanbrass indicates that Trollope has come to understand and even respect barristers and has learned more about the workings of the law. This change is reflected in his other novels in this period.

The parish of Bullhampton, near Salisbury, was largely the property of the Marquis of Trowbridge. The Vicar of Bullhampton and Marquis were in a dispute, and to annoy the clergyman his lordship gave dissenters—primitive Methodists—land for a chapel just outside the vicarage gates. The unattractive chapel was in the process of construction when Richard Quickenham Q.C, a London barrister and the brother-in-law to the vicar came for a visit to enjoy himself for four days, if he could find enjoyment without his law practice.

Vicar of Bullhampton 265 (Dover 1979) (1870).

Trollope portrays the barrister as a workaholic and striver, a lawyer type all too familiar today. Quickenham sets goals, and once they are attained, receives no satisfaction but sets another.

“He was at the Chancery bar, and after the usual years of hard and almost profitless struggling, had worked himself into a position in which his income was very large and his labours never-ending. Id. at 266.

Mr. Quickenham is untidy; he could be difficult to deal with; and people were afraid of him. Trollope also makes fun of him:

a tall, thin, man, with eager grey eyes, and a long projecting nose, on which, his enemies in the courts of law were wont to say, that his wife could hang a kettle, in order that the unnecessary heat coming from his mouth might not be wasted. His hair was already grizzled, and, in the matter of whiskers, his heavy impatient hand had nearly altogether cut away the only intended ornament to his face.

Id. at 266.

Though on holiday, he is unable to ignore his brother-in-law's feud. Mr. Quickenham enables the vicar to triumph in his dispute. He notes that the Marquis has been in such a hurry to punish the vicar that he allowed the Methodists to build on the property based on a mere verbal assurance the land was his. The barrister discovers that the plot of land on which the building was situated was glebe land and finds the terrier of the parish to prove that the land belongs to the vicar's church.

A glebe terrier is a detailed list describing the church's property in the parish—its rectory or vicarage, its fields and the church itself. Originally, every church was entitled to a house and glebe. Glebe terriers form a survey of the sources of the benefice income and give details of landholdings (including glebe houses), tithing rights, customs and modus (compositions for tithe), and surplice fees.

“Mr. Thomas Dove, familiarly known among club-men, attorneys, clerks, and perhaps even among judges when very far from their seats of judgment, as “Turtle Dove” was a counsel learned in the law.”

The Eustace Diamonds, supra note 13, at 225.

Mr. Camperdown, on behalf or perhaps in spite of the wishes of the Eustace family for whom he was their solicitor, sought an opinion from Mr. Dove on whether the diamond necklace is an heirloom, and therefore remains with the Eustace family or paraphernalia, which can be readily given away, in this case to Lizzie Eustace. Mr. Dove concludes that it was not an heirloom but suggests that a bill in equity might be suitable to prevent Lizzie from keeping the necklace.

Dove is described as learned but also possessed of great gifts. He, like Mr. Camperdown, is honest and unwilling to sell his services to dishonest clients. Dove is a person, who once he has reached a conclusion on something, cannot change his mind. “When he was positive, no one on earth was more positive. It behoved him to be right if positive, and even though wrong or right, he was equally stubborn.”

Id. at 226.

Mr. Dove was arrogant, “full of scorn and wrath, impatient of a fool, and thinking most men to be fools; eaten up by conceit, fond of law…but fonder perhaps of dominion; soft as milk to those who acknowledged his power [such as Mr. Camperdown], but a tyrant to all who contested it; conscientious, thoughtful, sarcastic, bright-witted and laborious.”

Id.

Mr. Dove was good at what he did, but was he a gentleman? Shirley Robin Letwin compares Dove to Chaffanbrass, in that he exhibits a good craftsmanship, but it is not an expression of the man's personality, rather a substitute for it. He never took on any matter where there was a chance of failure. Dove considered himself a great lawyer not a gentleman.

Shirley Robin Letwin, The Gentleman in Trollope 119 (1982).

Trollope was fascinated by the relationships between law and morality and law and justice. The rules relating to inheritance assured that the power of landed gentry remained secured by the backing of the law, so that large estates remained intact. Property had a spiritual dimension for him as a symbol or acknowledgement of the English way of life and the practices and traditions that constitute English culture and society.

McMaster, Law and Society, supra note 49, at 312–13.

The land law as it related to inheritance, primogeniture,

Primogeniture is the right of inheritance of a first-born child among several children of the same parents to succeed to the estate of an ancestor to the exclusion of younger male and female siblings as well as other relatives. The effect of English male preference primogeniture was to keep estates undivided wherever possible and to prevent inheritance of real property by female relatives unless only daughters survived in which case the estate normally resulted in division. The principle has also applied to inheritance of titles and offices.

Indefer Jones is the aged squire of a large manor in Carmarthen Wales. His niece Isabel Brodrick has lived with him for years. Though he loves his niece, Squire Jones believes that the estate must be passed down to a male heir. His sole male blood relative is his nephew Henry, who charitably can best be described as a loser. He is disliked by most people who know him; his debts have been paid by the squire; and he was sent down from Oxford. The squire attempts to solve the inheritance problem by suggesting Isabel and Henry marry, but she finds Henry detestable and refuses.

The squire feels the same about Henry. In the presence of two of his tenants he changes his will one final time in favor of Isabel but dies before anyone is told about the new will. Henry finds the will in a book of sermons but lacks the courage to break the law by destroying the document. He considers revealing its location but rationalizes that if he does nothing, he will not commit a crime. Instead, Henry hides the will and inherits the estate, but raises suspicions by acting in a guilty manner and locking himself in the library where the will is hidden. The local newspaper accuses him of destroying the will and stealing the estate from Isabel, who is known in the community. Isabel is no innocent heroine, and rather unlikeable herself, but Henry is not a villain. Trollope turns the guilt-ridden Henry into a sympathetic character.

Nicholas Apjohn, the solicitor for the old squire and drafter of all his wills, and now counsel to the new squire, suspects Henry knows more than he lets on about the will. He asks Henry about the newspaper articles and pressures him into taking legal action against the editor. For Henry, this makes things worse. He is terrified by the prospect of being cross-examined by John Cheekey, reputedly one of Great Britain's cruelest barristers, nicknamed “Supercilious Jack”. Mr Apjohn and Isabel's father, Mr Brodrick, visit Henry at his home and hound Henry to disclose the will's whereabouts. Despite Henry's efforts to stop them, they find the document. Because he did not destroy the will, Henry is permitted to return to his job in London with his reputation intact and £4000, the amount Isabel was bequeathed in the earlier will.

Mr. Apjohn is Trollope's ideal of what an attorney should be, for he places the pursuit of truth above the interests of his client. He acts a detective rather than counsel to his client. In Coral Lansbury's words

Mr. Apjohn is the lawyer that Trollope would like us all to admire, charging down on quaking rogues, shaking the truth from them with a fusillade of questions, and bypassing the finer points of the law to grapple with the truth. He personifies justice and speaks for the secular ethic that sustains Trollope's world. In a well-ordered society there is a measure of predictability that allows people to regulate their lives with some sense of security. Chance, coincidence, and providential events must be eliminated wherever possible and every action should seem the result of social, rather than of personal intention. Thus Mr. Apjohn sees to it that Llanfeare is entailed in order that there may no longer be any doubts as to future disposition.

Lansbury, supra note 8, at 155.

However, Apjohn clearly violates the attorney-client relationship by forcing Henry to disclose the truth.

For example, New York law provides”[A] lawyer, as one in a confidential relationship and as any fiduciary, is charged with a high degree of undivided loyalty to his client.” Matter of Kelly, 23 N.Y.2d 368, 376, 244 N.E.2d 456, 296 N.Y.S.2d 937 (1968). Accordingly, the attorney-client relationship is a “unique relationship . . . founded in principle upon the elements of trust and confidence on the part of the client and of undivided loyalty on the part of the attorney[,]” and, as such, “remains one of the most sensitive and confidential relationships in our society.” Demov, Morris, Levin & Shein v. Glantz, 53 N.Y.2d 553, 556, 428 N.E.2d 387, 444 N.Y.S.2d 55 (1981). Given the special nature of that relationship, “[i]t follows . . . that an attorney cannot represent a client effectively and to the full extent of his or her professional capability unless the client maintains the utmost trust and confidence in the attorney.” Id. For that reason, attorney-client retainer agreements are not treated like conventional commercial agreements. John T. Walsh Enters., LLC v Grace Christian Church, 2019 N.Y. Misc. LEXIS 815 *; 2019 NY Slip Op 50247(U).

Lady Anna involves story elements that frequently appear in Trollope's novels: inheritance, status, class, issues of law and justice and law and morality, trials, and barristers.

Lady Anna (Oxford Univ. Press 1984) (1871).

With neither fortune nor settlement, Josephine Murray married Earl Lovel and became Countess Lovel. Six months later the Earl informs her that their marriage is illegitimate as he has previously wed an Italian woman. The Earl returns to Italy, and Josephine gives birth to their daughter Anna. It becomes the sole aim of Josephine's life to reclaim her title and prove Anna is the legitimate heir of the Earl. She brings a suit for bigamy, but the Earl is acquitted as the Italian marriage was not proven. Josephine hoped the acquittal would establish her status, right and recognition to be called Lady Lovel. This did not happen in society's mind, and she was considered a soi-disant or self-styled wife.

Id. at 8–9.

Twenty years pass and Lovel returns with a new Italian woman, a Signorina Spondi, but he is aged, reputedly mad, and soon dies. His will bequeaths substantial personal property to the Signorina but the entailed land goes with the title to a distant heir, Frederic Lovel.

The title but not the personal property went with the entail.

Lady Anna's complicated plot contains many legal and moral issues. Is Anna the legitimate daughter of Earl Lovel? If so, she can be called “Lady” Anna. The Italian woman and the young lord (Frederic Lovel) were allied against the mother and daughter as regarded the first marriage. Lovel and the mother and daughter joined forces against the Signorina as regarded the will. The young lord had to act alone against the Italian woman to set aside the will and against the mother and daughter whom he and his friends considered swindlers. Additionally, he had to bear their assault on him.

Lady Anna, supra note 127, at 17–18.

Into this legal morass came Sir William Patterson, the Solicitor General, who represented Frederic Lovel. Sergeant Bluestone was counsel to Lady Anna and Josephine. Patterson in his first appearance seems a typical Trollopean barrister. Initially, the idea of a convenient marriage between Anna and Frederic seemed abhorrent:

Sir William Patterson stood aghast and was dismayed. Sir William intended to make mincemeat of the Countess. It was said of him that he intended to cross-examine the Countess off her legs, right out of her claim, and almost into her grave.

Lady Anna, supra note 127, at 23.

However, he quickly changed his attitude and became in the words of R.D. McMaster “a sort of benign legal deity ruling over the novel, a role similar to that of Prospero in The Tempest.“

McMaster, supra note 5, at 128.

For Henry Drinker, a prominent lawyer from Philadelphia and an avid Trollopean, Sir William represents the ideal of what a lawyer should be.

“Sir William is preeminently a great lawyer as well as an eminently successful one, great and successful not merely in court—in this novel he has no real court battle—but in a way that every lawyer would like to be—able, by farsighted wisdom, suavity, and force of character, to make people do what he correctly senses to be best for all concerned. The others come to realize this only after they have all, against their will, but under the influence of his strong personality, done what they ultimately recognized was much the best thing for them.” Drinker, supra note 3, at 56.

Patterson's actions seem more appropriate to a mediation than a trial in a courtroom.

Mediation is a method of alternative dispute resolution available to parties in a lawsuit. It is a negotiation between the parties facilitated by a neutral third party, the mediator. Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over the matter, the parties and their mediator ordinarily control the mediation process. The mediator does not make the decision but encourages the parties to reach a mutually satisfactory solution. This is what Sir William did.

Patterson sends Mr. Flick, a solicitor employed to substantiate the position of the new Earl Lovel, to Sicily to inquire whether the Italian countess was deceased before Josephine's marriage to the old earl. Mr. Flick concluded she had died. Therefore, the estate would go to Josephine and Anna. It would not be in the interest of Patterson's clients to admit this, so Sir William suggested a compromise whereby the new Earl would marry Anna and there would be no further effort to challenge Anna's legitimacy.

In the trial of Lovel v. Murray, Patterson offers an opinion that Josephine and Anna were entitled to legitimate status. That seems to be a breach of his legal responsibility, as Frederic might have won the trial and the estate. In the end, Anna's claim is recognized, but she refuses to marry Frederic and instead weds the tailor's son with whom she grew up and fell in love.

Trollope's readers were aghast that Lady Anna would marry beneath her station to a tailor instead of the earl. He defended his ending in the Autobiography, supra note 69, at 347.

Mr. Scarborough's Family was posthumously published in 1883.

Mr. Scarborough’s Family, supra note 7. It was written between March and October 1881 and appeared in serial form from May 1882 to June 1883.

The England of the late 1870s and early 1880s had suffered a sudden and dramatic collapse of the agricultural base because of the massive influx of cheap foreign goods from North America, Australia and New Zealand. A rural depression led to a collapse in agricultural rents and the price of land. This affected the often heavily indebted agrarian elite severely and led to discontent among agrarian workers.

David Cannadine, The Decline and Fall of the British Aristocracy 26–28 (1990).

The role of law in a changing society was also altered as the balance of power moved from the landed gentry to the middle classes.

Harvey, supra note 7, at viii.

In most of Trollope's novels gentlemen stabilize society, and it is essential that a gentleman shares society's values and conforms to its ways.

Robert Tracy, Trollope’s Later Novels 92 (1976).

To execute his plan, Mr. Scarborough married his late wife twice, one ceremony before the birth of Mountjoy and the second, after it. He therefore can select his heir by claiming that either the first or second wedding ceremony was valid. If Mr. Scarborough says the second ceremony was the legitimate one, Mountjoy is illegitimate, and the entail goes to Augustus, who becomes the legitimate heir.

As often occurs in Trollope's novels, there are multiple story lines.

This is a device that occurs in Elizabethan and Jacobean drama, of which Trollope was very knowledgeable and had a large collection of plays from that era. Tracy, supra note 148, at 39–41, 44–46.

Initially, Mr. Scarborough intended Mountjoy as the elder son should inherit the estate. Because of Mountjoy's incurable gambling habit and the debts generated therefrom, the estate would go to satisfy Mountjoy's creditors. To avoid this result, Mr. Scarborough produces the second marriage certificate showing that his second son, Augustus, who is debt-free, is the legitimate heir. Augustus is no angel either. He plots to steal Harry's girl, Florence, and treats his father with increasing disrespect. However, Augustus, using his own funds, settles with Mountjoy's creditors, leaving them with no claim on the estate. Then, Scarborough reverses his position and once again leaves his estate to Mountjoy.

Another subplot involves Mr. Scarborough and John Grey, his foil, counsel, and opposite in character. Mr. Grey seeks the truth in any matter, is honest and does his duty: “he certainly was an honest man and had taken up the matter [Scarborough's inheritance] simply with a view of learning the truth.”

Id. at 145.

Mr. Grey is scandalized by Scarborough's attitude toward the law. However, the attorney “did not regard him as an honest man regards a rascal and was angry with himself in consequence. He knew that there remained with him some spark of love for Mr. Scarborough which to himself was inexplicable.”

Mr. Scarborough’s Family, supra note 7, at 373.

Scarborough and Grey resemble an old married couple who disagree on everything but are bound together through a kind of love as well as habit. The two differ over the nature and dignity of the law and the relationship of law to justice. Mr. Scarborough's cynicism contrasts with his counsel's belief in the law. Scarborough considers himself a moral man merely in pursuit of justice. “Justice” to him means getting what he wants. The law be damned. “If a man has property, he should be able to leave it as he pleases; or else he doesn’t have it.”

Id. at 389.

Mr. Grey has the greatest respect for the law, which to him is a holy writ.

Mr. Scarborough’s Family, supra note 7, at 526.

Trollope uses Grey as a metaphor for the changes affecting English society through the lens of the legal profession. He now recognized that lawyers could be gentlemen, and Mr. Grey was such an example. He treated his clients as children or members of the family. The fees earned were secondary. He sees a case not just for his clients but also for their ancestors and descendants and perhaps others. Grey is not just observing the letter of the law but upholding it, while searching for a just outcome.

Letwin, supra note 120, at 120.

Mr. Grey also symbolizes the passing of an older attitude towards a lawyer's work and professionalism. While he thinks Scarborough is a cad for his manipulations, his partner Mr. Barry admires Mr. Scarborough as the best lawyer he ever knew.

Mr. Scarborough’s Family, supra note 7, at 599.

By the end of the novel, the decent Mr. Grey is full of self-doubt and feels his style of law practice is superannuated as compared with that of his law partner, who reflects values closer to Mr. Scarborough. Grey concludes this is a symbol of the disintegrating standards of practice, and his time has passed, “I have been at my business long enough. Another system has grown up which does not suit me … . It may be that I am a fool, and that my idea of honesty is a mistake”.

Id. at 600.