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Title: An Essay on Professional Ethics - Second Edition
Author: Sharswood, George
Language: English
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provided below:
PREFACE.
INTRODUCTION.
PROFESSIONAL ETHICS.
APPENDIX.
No. I.
No. II.
No. III.
PROFESSIONAL ETHICS.
AN ESSAY ON PROFESSIONAL ETHICS.
by
GEORGE SHARSWOOD.
Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil
sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque
ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi
conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS
HÆC ARMA, NON MILITI.
QUINCT. DE INST. OR.
Second Edition.
Philadelphia:
T. & J. W. Johnson & Co.,
Law Booksellers and Publishers,
No. 535 Chestnut Street.
1860.
Entered, according to Act of Congress, in the year 1860,
by T. & J. W. Johnson & Co.,
in the Clerk's Office of the District Court for the Eastern District
of Penn'a.
C. Sherman & Son, Printers,
S. W. Cor. Seventh and Cherry Streets, Philadelphia.
TO
MY HONORED MASTER,
JOSEPH R. INGERSOLL, LL.D.,
INSCRIBED
AS A
TESTIMONY OF
RESPECT AND GRATITUDE.
PREFACE.
The following Essay was originally published under the title of "A
Compend of Lectures on the Aims and Duties of the Profession of the Law,
delivered before the Law Class of the University of Pennsylvania." A
portion of it had been read by the author as an Introductory Lecture at
the opening of the Fifth Session of the Law Department of that
Institution, October 2d, 1854. The young gentlemen, alumni, and students
of the school, who were present on that occasion, requested a copy for
publication, in order that each of them might possess a memento of their
connection with the Institution. The author preferred to publish the
entire Compend than merely a part of it. He hesitated much in doing so,
because the questions discussed are difficult, and opinions upon them
variant, and he could scarcely hope that he had in every case succeeded
in just discrimination. A review of the matter now, when a second
edition has been called for, has suggested, however, no important change
in the principles advanced, though a few additions have been made, some
inaccuracies corrected, and an introduction upon the importance of the
profession, in a public point of view, prefixed.
G. S.
INTRODUCTION.
The dignity and importance of the Profession of the Law, in a public
point of view, can hardly be over-estimated. It is in its relation to
society at large that it is proposed to consider it. This may be done by
showing its influence upon legislation and jurisprudence. These are the
right and left hands of government in carrying out the great purposes of
society. By legislation is meant the making of law--its primary
enactment or subsequent alteration. Jurisprudence is the science of what
the law is or means, and its practical application to cases as they
arise. The province of legislation is _jus dare_--of jurisprudence,
_jus dicere_. The latter is entirely in the hands of lawyers as a
body--the former almost entirely.
Legislation is indeed a nobler work than even jurisprudence. It is the
noblest work in which the intellectual powers of man can be engaged, as
it resembles most nearly the work of the Deity. It is employed as well
in determining what is right or wrong in itself--the due proportion of
injuries and their remedies or punishments--as in enforcing what is
useful and expedient. How wide the scope of such a work! The power of
society over its individual members, or, in other words, sovereignty,
which is practically vested in the legislature, is a type of the Divine
power which rules the physical and moral universe. "There is one
Lawgiver," says the Apostle James. Not that the Supreme Being is the
sole universal lawgiver in the sense of a creator of law, whose will
alone determines the boundaries of right and wrong. God is the creator
of the beings who are the subjects of law. He is the author of law--the
one lawgiver--in the same sense that he, who first discovered a plain
figure, may be said to be the author of all theorems, which may be
predicated of it. He who first called attention to the curious curve,
made by a point in the periphery of a wheel as it turns on the ground,
is in a certain sense the discoverer of all the truths, which may be
mathematically demonstrated in respect to it.
Law in its true sense is not the work of mere will--not an act of
intellectual caprice. It is a severe and necessary deduction from the
relations of things. The Divine legislator sees and knows these
relations perfectly. He can draw no wrong deduction from them. He can
make no mistake. Whatever laws have certainly emanated from Him are
certainly right. This is the sense in which it is true that "there is
one Lawgiver:" all others but attempt the work; He alone is competent to
perform it. There is no mathematical certainty in our reasoning on moral
as there is on physical relations. We know that the three angles of a
triangle are equal to two right angles with an assurance we can never
have in regard to any moral truth whatever. The Divine law is a
deduction necessarily and mathematically certain as much so as any truth
in geometry. Human law can aim only at such a probable deduction as
results from a finite and imperfect knowledge.
The system of law delivered by Moses to the Jews deserves, therefore,
the most careful study at the hands of all who believe him to have been
a divinely commissioned lawgiver. These laws were not intended for any
other people than the Israelites; they were adapted to their
circumstances, climate, country, neighbors, to the period of the world
when they were promulgated, and during which they were to prevail. They
were certainly not meant as a model for any other form of government,
for any other people, or for any other time. Many laws are to be found
there which are unnecessary and superfluous if applied elsewhere. Many
actions, innocent in themselves, are prohibited. All the _mala
prohibita_ are not _mala in se_. But one thing is as clear as a sunbeam,
and that is a very important light to the student of Ethics; if God was
the author of these laws, nothing morally wrong was commanded or
allowed by them. When it was said of the Jews through the prophet, "I
gave them statutes which were not good," it cannot mean not morally
good; laws which it would be sinful in them to obey. The word in the
original is not the word appropriated in that language to right,
conformity to rule, but to goodness in its most general sense. Good
statutes mean wise and expedient statutes. By no process can the logical
mind be brought to the conclusion that the perfectly wise and good
lawgiver, in framing a code of laws for any people, would impose as a
punishment "for the hardness of their hearts," a penalty, submission to
which would itself be punishable as a sin against the law of nature. He
might command or allow as such punishment what in itself was inexpedient
and injurious to them, and which upon the promulgation of a new law
repealing the old and prohibiting what it allowed, would become by the
sanction of the same lawgiver thenceforth universally _malum
prohibitum_. The authority of God as a lawgiver is certainly not
confined to a mere declaration of what is right or wrong by the law of
Nature.
There can be no merely arbitrary laws. It is necessary to bear in mind
that we are now considering the province of the legislator, who ought to
enact no law without an end. "Civil legislative power," says Rutherforth
(B. II, c. vi, s. 10), "is not in the strict sense of the word an
absolute power of restraining or altering the rights of the subjects: it
is limited in its own nature to its proper objects, to those rights only
in which the common good of the society or of its several parts requires
some restraint or alteration. So that whenever we call the civil
legislative power, either of society in general or of a particular
legislative body within any society, an absolute legislative power, we
can only mean that it has no external check upon it in fact; for all
civil legislative power is in its own nature under an internal check of
right: it is a power of restraining or altering the rights of the
subjects for the purpose of advancing or securing the general good, and
not of restraining or altering them for any purpose whatever, and much
less for no purpose at all." There are, therefore, no arbitrary laws
which fulfil the end of law. Doubtless the true objects of society and
government may be mistaken by him who sets up to be law-maker, or if
those objects are properly appreciated, the means for advancing them may
be mistaken. It is not wonderful that in a matter which demands the
highest wisdom, many should try and fail.
It becomes important to inquire what are the true ends of society and
government? Man is a gregarious animal--a social being. He may exist in
solitude, but he cannot enjoy life: he cannot perfect his nature. Those
who have watched and studied closely the habits of those irrational
animals, who live in communities, as the ant, the bee, and the beaver,
have observed not only a settled system and subordination, but the
existence of some wonderful faculty, like articulate speech, by which
communication takes place from one to another; a power essential to
order. Man, the highest social animal in the scale of earthly being,
has also the noblest faculty of communication.
The final cause--the reason why man was made a social being--is that
society was necessary to the perfection of his physical, intellectual,
and moral powers, in order to give the fullest return to the labor of
his hands and to secure the greatest advances in knowledge and wisdom.
It is for no vain national power or glory, for no experimental
abstraction, that governments are instituted among men. It is for man as
an individual. It is to promote his development; and in that consists
his true happiness. The proposition would be still more accurate were it
said, society is constituted that men may be free--free to develop
themselves--free to seek their own happiness, following their own
instincts or conclusions. Without society--and government, which of
course results from it--men would not be free. An individual in a state
of isolation might defend himself from savage beasts, and more savage
men, as long as his strength lasted, but when sickness or age came on,
the product of the labor of his hands, accumulated by a wise foresight
to meet such a contingency, would become the prey of the stronger. The
comparatively weak-minded and ignorant would be constantly subject to
the frauds of the more cunning.
It is enough to look at the effects of the division of employments and
the invention of labor-saving machinery, to recognize the invaluable
results of society in the development of wealth and power. In a state of
isolation a man's entire time and strength would be needed for the
supply of his physical wants. As men advance in knowledge and wisdom the
standard of their mere physical wants is elevated. They demand more
spacious and comfortable dwellings, more delicate viands and finer
clothing.
"Allow not nature more than nature needs,
Man's life is cheap as beasts'."
It is not true that men would be morally better or happier, if their
style of living were reduced to the greatest plainness consistent with
bare comfort. Our taste in this respect, as for the fine arts, as it
becomes more refined, becomes more susceptible of high enjoyment. When
large fortunes are suddenly made by gambling, or what is equivalent
thereto, then it is that baleful luxury is introduced--a style of living
beyond the means of those who adopt it, and spreading through all
classes. Taste, cultivated and enjoyed at the expense of morals,
degrades and debases instead of purifying and elevating character. Men,
who have accumulated wealth slowly by labor of mind or body, do not
spend it extravagantly. If they use it liberally, that creates no envy
in their poorer neighbor, no ruinous effort to equal what is recognized
to be the due reward of industry and economy. The luxury, which
corrupted and destroyed the republic of Rome, was the result of large
fortunes suddenly acquired by the plunder of provinces, the conquests of
unjust wars. The most fruitful source of it, in our own day, is what has
been well termed _class legislation_--laws which either directly or
indirectly are meant to favor particular classes of the community. They
are supported by popular reasons and specious arguments, yet there is
one test of the true character of such laws, an _experimentum crucis_,
of which, in general, they cannot bear the application. Legislation,
which requires or which will pay to be bored or bought, is unequal
legislation; and therefore unwise and unjust. Bentham's rule, though
false as the standard of right and wrong, is in general the true rule of
practical legislation, the greatest good of the greatest number. It is
expressed with the most force and accuracy by that master of the
science, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et æqui_:
in which observe that the word _prope_ is emphatic. Legislation for
classes violates this plain rule of equal justice, and moreover does
not, in the long run, benefit those for whom it is intended. The
indirect evils upon society at large are even more injurious than those
which are direct. Men are often thus poor to-day and rich to-morrow. The
bubble, while it dances in the sunbeam, glitters with golden hues,
though destined almost immediately to burst and be seen no more.
What government owes to society, and all it owes, is the impartial
administration of equal and just laws. This produces security of life,
of liberty, and of property. It has become a favorite maxim, that it is
the duty of government to promote the happiness of the people. The
phrase may be interpreted so as to mean well, but it is a very
inaccurate and unhappy one. It is the inalienable right of men to pursue
their _own_ happiness; each man under such restraints of law as will
leave every other man equally free to do the same. The true and only
true object of government is to secure this right. The happiness of the
people is the happiness of the individuals who compose the mass.
Speaking now with reference to those objects only, which human laws can
reach and influence, he is the happy man, who sees his condition in life
constantly and gradually, though it may be slowly, improving. Let
government keep its hands off--do nothing in the way of creating the
subject-matter of speculation--and things naturally fall into this
channel. There will be some speculators, as there will be some gamblers;
but they will be few. The stock market is filled with fancies, which the
government has manufactured and continues to manufacture to order. It is
the duty of government to encourage the accumulation of the savings of
industry. The best way to do so is to guard the strong box from the
invasion of others, and not itself to invade it. Property has an
especial claim to protection against the government itself. The power of
taxation in the legislature is in fact a part of the _eminent domain_; a
power that must necessarily be reposed in the discretion of every
government to furnish the means of its own existence. One grievous
invasion of property--and of course ultimately of labor, from whose
accumulations all property grows--is by government itself, in the shape
of taxation for objects not necessary for the common defence and general
welfare. Men have a right not only to be well governed, but to be
cheaply governed--as cheaply as is consistent with the due maintenance
of that security, for which society was formed and government
instituted. This, the sole legitimate end and object of law, is never to
be lost sight of--security to men in the free enjoyment and development
of their capacities for happiness--SECURITY--nothing less--but nothing
more. To compel men to contribute of the earnings or accumulations of
industry, their own or inherited, to objects beyond this, not within the
legitimate sphere of legislation, to appropriate the money in the public
treasury to such objects, is a perversion and abuse of the powers of
government, little if anything short of legalized robbery. What is the
true province of legislation, ought to be better understood. It is worth
while to remark, that in every new and amended State constitution, the
bill of rights spreads over a larger space; new as well as more
stringent restrictions are placed upon legislation. There is no danger
of this being carried too far; as Chancellor Kent appears to have
apprehended that it might be. There is not much danger of erring upon
the side of too little law. The world is notoriously too much governed.
Legislators almost invariably aim at accomplishing too much.
Representative democracies, so far from being exempt from this vice, are
from their nature peculiarly liable to it. Annual legislatures--with
generally two-thirds new members every year--increase the evil. The
members fall into the common mistake, that their commission is to act,
not to decide in the first place whether action is necessary. They would
be blamed and ridiculed, if they adjourned without doing something
important. Hence the annual volumes of our Acts of Assembly are
fearfully growing in bulk. It is not merely of the extent of local
legislation, the vast multiplication of charters for every imaginable
purpose, or of the constantly recurring tampering with the most general
subjects of interest, finance, revenue, banking, education, pauperism,
&c., that there is reason to complain; but scarce a session of one of
our legislatures passes without rash and ill-considered alterations in
the civil code, vitally affecting private rights and relations. Such
laws are frequently urged by men, having causes pending, who dare not
boldly ask that a law should be made for their particular case, but who
do not hesitate to impose upon the legislature by plausible arguments
the adoption of some general rule, which by a retrospective
construction, will have the same operation. It is a most monstrous
practice, which lawyers are bound by the true spirit of their oath of
office, and by a comprehensive view of their duty to the Constitution
and laws, which they bear so large a part as well in making as
administering, to discountenance and prevent. It is to be feared, that
sometimes it is the counsel of the party who recommends and carefully
frames the bill, which, when enacted into a law, is legislatively to
decide the cause. It is time that a resort to such a measure should be
regarded in public estimation as a flagrant case of professional
infidelity and misconduct.
This brief sketch of the true province of legislation is enough to
evince its vast importance. How great is the influence of the lawyers
as a class upon legislation! Let any man look upon all that has been
done in this department, and trace it to its sources. He will
acknowledge that legislation, good or bad, springs from the Bar. There
is in this country no class of lawyers confined to the mere business of
the profession--no mere attorneys--no mere special pleaders--no mere
solicitors in Chancery--no mere conveyancers. However more accurate and
profound may be the learning of men, whose studies are thus limited to
one particular branch, it is not to be regretted either on account of
its influence on the science or the profession. The American lawyer,
considering the compass of his varied duties, and the probable call
which will be made on him especially to enter the halls of legislation,
must be a Jurist. From the ranks of the Bar, more frequently than from
any other profession, are men called to fill the highest public stations
in the service of the country, at home and abroad. The American lawyer
must thus extend his researches into all parts of the science, which has
for its object human government and law: he must study it in its grand
outlines as well as in the filling up of details. He is as frequently
called upon to inquire what the law ought to be as what it is. While a
broad and marked line separates, and always ought to separate the
departments of Legislation and Jurisprudence, it is a benefit to both
that the same class of men should be engaged in both. Practice will thus
be liberalized by theory, and theory restrained and corrected by
practice. The mere abstractionist or _doctrinaire_ would aim at the
formation of a code of great simplicity: the practitioner sees in it the
parent of uncertainty and injustice. Legal propositions cannot be framed
with the certainty of mathematical theories. The most carefully studied
language still leaves room for interpretation and construction. Time
itself, which works such mighty changes in all things, produces a state
of circumstances not in the mind of the lawgiver. The existing system,
it may be, is an unwieldy, inconvenient structure, heavy and grotesque
from the mixed character of its architecture outwardly, inwardly its
space too much occupied and its inmates embarrassed by passages and
circuities. The abstractionist would at once demolish it, and replace it
by a light, commodious and airy dwelling, more symmetrical and chaste in
its appearance, better fitted for the comfort and usefulness of its
inhabitants. The practitioner, who has become familiar with it, who
observes and admires that silent legislation of the people, which shows
itself not on the pages of the statute book, and receives its
recognition in courts of justice only after it has ceased to need even
that to give it form and vitality, and who understands, therefore, how,
with little inconvenience, it is made to accommodate itself to every
change of condition, sits down to a careful calculation of the cost and
risk of such wholesale change. History and practical experience, alike,
suggest to him, that the structure is a castle as well as a dwelling, a
place for security as well as comfort; that its foundations have been
laid deeply on the solid rock--its masonry more firmly knit together by
the time it has endured. Yet he will not deny that what can be done
consistently with security ought to be done. It is worse than in vain to
oppose all amendment. It will break down every artificial barrier that
may be reared against it, if it be not quietly and wisely directed in
those channels which it seeks at the least expense to security and
stability. Surely it is not conceding too much to this spirit to admit,
that laws should be composed in accurate but perspicuous language,
without redundancy of words or involution of sentences; that the policy
of public measures should not be wrapt up in the folds of State mystery;
and that all legislation should be based upon the principle of leaving
the greatest liberty of private judgment and action, consistent with
public peace and private security. A blind attachment to principles of
jurisprudence or rules of law because they are ancient, when the
advancement of the useful arts, the new combinations of trade and
business, and the influence of more rapid and general intercourse demand
their repeal or modification, is as much to be deprecated as rash
innovation and unceasing experiment. Indeed it scarcely ever fails to
defeat its own end, and though it may retard for a while, renders the
course of reform more destructive than it otherwise would have been.
True conservatism is gradualism--the movement onward by slow, cautious,
and firm steps--but still movement, and that onward. The world, neither
physically, intellectually, nor morally, was made to stand still. As in
her daily revolutions on her own axis as well as her annual orbit round
the sun, she never returns precisely to the same point in space which
she has ever before occupied, it would seem to be the lesson which the
Great Author of all Being would most deeply impress upon mind as he has
written it upon matter; "by ceaseless motion all that is subsists."
What has thus been very cursorily presented will evince that it is the
province of legislation, by slow and cautious steps, to amend the laws,
to render them more equal in their operation upon all classes, not
favoring the rich more than the poor, nor one class of either more than
another, providing an easy, cheap, and expeditious administration of
justice by tribunals, whose learning and impartiality shall be so
secured as to possess the confidence of the community, and by general
rules for the regulation of conduct and the distribution of estates most
conformed to the analogies of that system, which is familiar to the
people in their common law.
Great as is the influence which the profession of the law can and does
exercise upon the legislation of a country, the actual administration of
law is entirely in their hands. To a large extent by private counsel, by
the publication of works of research and learning, by arguments in
courts of justice to assist those who are to determine what is the law,
and to apply it to the facts, as well as in the actual exercise of
judicature, this whole important province of government, which comes
home so nearly to every man's fireside, is intrusted necessarily to
lawyers.
In this country we live under the protection of written constitutions;
not only so, but written constitutions, which have assumed to place
limits upon the power of majorities, acting at least through their
ordinary representatives. The construction of these constitutions, or
constitutional law as it is termed, forms a very important branch of
American jurisprudence. There have been, and are, in other countries,
charters, written or unwritten--organic or fundamental laws--but without
this distinguishing feature. The fundamental laws, thus established in
point of fact, emanate from the government, and have no sanction beyond
the oath of those intrusted with the administration of them, the force
of public opinion, and the responsibility of the representative to his
constituent. Our constitutions emanate not from the government, but the
State, the society, the creator of the government; and are, therefore,
in the strictest sense of the words, _leges legum_. The radical
principle of our system is, that the act of the legislative body, beyond
or contrary to the power confided to it by the Constitution, is a
nullity, and absolutely void. The courts must so pronounce, and the
executive must execute their judgments with the whole force of the
State. Upon such a subject it is best to use the very language--the
_ipsissima verba_--of John Marshall, as, at the same time, expressing
the doctrine with the greatest force and perspicuity, and presenting, in
the mere statement, the most convincing argument of its importance. "It
is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must, of
necessity, expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each. So if a law
be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the Constitution,
or conformably to the Constitution, disregarding the law: the court must
determine which of these conflicting rules governs the case. This is of
the very essence of judicial duty. If, then, the courts are to regard
the Constitution, and the Constitution is superior to any ordinary act
of the legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply. Those, then, who controvert
the principle that the Constitution is to be considered in court as a
paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the law. This
doctrine would subvert the very foundation of all written constitutions.
It would declare that an act, which, according to the principles and
theory of our government, is entirely void, is yet, in practice,
completely obligatory. It would declare that, if the legislature shall
do what is expressly forbidden, such act, notwithstanding the express
prohibition, is, in reality, effectual. It would be giving to the
legislature a practical and real omnipotence with the same breath which
professes to restrict their powers within narrow limits. It is
prescribing limits, and declaring that those limits may be passed at
pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words
than these have never, speaking of human things, fallen from the lips of
man: weighty in themselves from their own simple but eloquent
conclusiveness--weightier still from their unspeakable importance, the
immeasurable influence they have had, and, it is to be hoped, will ever
continue to have, upon the destinies of the United States of America.
The judiciary department, though originating nothing, but acting only
when invoked by parties in the prosecution of their rights, is thus
necessarily an important political branch of the government. That
department spreads the broad and impregnable shield of its protection
over the life, limbs, liberty, and property of the citizen, when invaded
even by the will of the majority. Our Bills of Rights are, therefore,
not mere enunciations of abstract principles, but solemn enactments by
the people themselves, guarded by a sufficient sanction. They have not,
perhaps, as yet, carried far enough their provisions for the security of
property from the unjust action of government. The obligation of
contracts has been declared sacred; the right of eminent domain
restricted by the provision for compensation. Yet, even as to contracts,
the legislature may still exercise dangerous powers over the remedy,
short of taking it away entirely, and over the rules of evidence. As to
eminent domain, they possess an undefined right to determine the time
and manner of ascertaining the compensation. Our constitutions are
frequently undergoing revision; and too much care cannot be exercised to
strengthen our securities in this quarter. Personal liberty, trial by
jury, the elective and other political franchises, liberty of
conscience, of speech and of the press, are able to protect themselves
in a great measure from their own democratic affinities. It is true,
that there really is no difference between wresting from a man the few
dollars, the products or savings of his industry for any period of time,
and depriving him of his liberty, or chaining him to a log, to work for
another during the same period. Property eminently stands in need of
every parchment barrier, which has been or can be thrown around it. An
eminent Judge in our own State once threw out the opinion that there
existed in the Constitution no disaffirmance of the power of the
legislature to take the property of an individual for _private uses_
with or without compensation. "The clause," he argued, "by which it is
declared that no man's property shall be taken or applied to _public_
use, without compensation made, is a disabling, not an enabling one, and
the right would have existed in full force without it." (Harvey _v._
Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that
case did not require a resort to that reasoning, and but little
examination was sufficient to satisfy the mind that this _obiter dictum_
was unsustained by either principle or authority. A power in the
legislature to take the property of A. and give it to B. directly, would
be of the very essence of despotism. When it is declared in the Bill of
Rights that no man shall be deprived of his life, liberty, or property,
unless by the judgment of his peers, or the law of the land, this
phrase, "law of the land," does not mean merely an act of the
legislature. If it did, every restriction upon the legislative
department would be practically abrogated. By an authority as old as
Lord Coke, in commenting upon these same words in _Magna Charta_, they
are to be rendered "without due process of law: that is, by indictment
or presentment of good and lawful men, when such deeds be done in due
manner, or by writ original of the common law, without being brought
into answer but by due process of the common law." (2 Inst. 50.) The
American laws are numerous and uniform to the point (see 1 American Law
Mag. 315); and the same eminent Judge, to whom reference has been made
in a later case, declared his adhesion to the sound and true doctrine in
the most emphatic language, without noticing his own previous _dictum_
to the contrary. "It was deemed necessary," said he, "to insert a
special provision in the Constitution to enable them (the legislature)
to take private property even for public use, and on compensation made;
but it was not deemed necessary to disable them specially in regard to
taking the property of an individual, with or without compensation, in
order to give it to another, not only because the general provision in
the Bill of Rights was deemed sufficiently explicit for that, but
because it was expected that no legislature would be so regardless of
right as to attempt it. Were this reasonable expectation to be
disappointed, it would become our plain and imperative duty to obey the
immediate and paramount will of the people, expressed by their voices in
the adoption of the Constitution, rather than the repugnant will of
their delegates acting under a restricted but transcended authority."
(Norman _v._ Heist, 5 W. & S. 171.)
Yet, while the right of private property cannot be thus directly
invaded, its security against the acts of the legislature is not as
perfect as it might and ought to be made. The legislature must be
allowed a large discretion in judging what is a public use: on that
pretext much may be brought within its sweep unjustly, and the courts,
in the absence of a constitutional rule, would be embarrassed in
defining its limits. Experience has shown that much power to do wrong
lurks under grants by no means essential to the public good. Besides
what has been before referred to, the assumption of judicial functions
by the Legislature and the broad field of Chancery jurisdiction over
trust estates, which it has been held that they may exercise
immediately, if they see fit, instead of vesting them in appropriate
tribunals, are fraught with serious danger. The proneness of bodies so
constituted to disembarrass themselves of the ordinary rules of
evidence, to act upon _ex parte_ statements and testimony imperfectly
authenticated, as well as the absence of all legal forms from their
proceedings, and their numbers, among whom the responsibility of giving
due attention to the case is divided, add to the peril. The power of
legislating retrospectively has far too wide a scope; the constitutional
inhibition of _ex post facto_ laws having been construed to apply to
criminal or penal cases merely, restraining the legislature from making
that an offence which was not so at the time of its commission, or
increasing the punishment annexed to it. The course of legislation in
this country amply demonstrates the wisdom, and even necessity, of
extending the same prohibition to civil cases. There is no particular
or partial inconvenience, which could outweigh the general benefits of a
provision that no law, public or private, should operate retrospectively
upon past acts; that the judgment of the tribunals upon every case
should be according to the law as it was at the time of the transaction,
which the parties were bound to know, and in accordance with which they
are to be presumed to have acted.
As well in the domain of public as of private law, the great fundamental
principle for judge and counsellor ought to be, THAT AUTHORITY IS
SACRED. There is no inconvenience so great, no private hardship so
imperative, as to justify the application of a different rule to the
resolution of a case, than the existing state of the law will warrant.
"There is not a line from his pen," says Mr. Binney of Chief Justice
Tilghman, "that trifles with the sacred deposit in his hands by claiming
to fashion it according to a private opinion of what it ought to be.
Judicial legislation he abhorred, I should rather say, _dreaded_, as an
implication of his conscience. His first inquiry in every case was of
the oracles of the law for their response; and when he obtained it,
notwithstanding his clear perception of the justice of the cause, and
his intense desire to reach it, if it was not the justice of the law, he
dared not to administer it. He acted upon the sentiment of Lord Bacon,
that it is the foulest injustice to remove landmarks, and that to
corrupt the law is to poison the very fountains of justice. With a
consciousness that to the errors of the science there are some limits,
but none to the evils of a licentious invasion of it, he left it to our
annual legislature to correct such defects in the system as time either
created or exposed; and better foundation in the law can no man lay." It
is not to be denied that there is some difficulty in stating with
accuracy the limits of the rule _stare decisis_. One, or even more than
one, recent precedent, especially when it relates to the application
rather than to the establishment of a rule, is not of so binding a
character that it must be followed, even though contrary to principles
adjudged in older cases: but it is just as clear that when a decision
has been long acquiesced in, when it has been applied in numerous cases,
and become a landmark in the branch of the science to which it relates,
when men have dealt and made contracts on the faith of it, whether it
relates to the right of property itself, or to the evidence by which
that right may be substantiated, though it may appear to us "flatly
absurd and unjust," to overrule such a decision is an act of positive
injustice, as well as a violation of law, and an usurpation by one
branch of the government upon the powers of another. An example will
illustrate this position. In the case of Walton _v._ Shelley (1 Term
Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,
decided that a person is not a competent witness to impeach a security
which he has given, though he is not interested in the event of the
suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke
(7 Term Rep. 601), the same court, in 1798, under the presidency of Lord
Kenyon, rightly overruled that decision. Now it so happens that Walton
_v._ Shelley was recognized as authority and followed in Pennsylvania,
in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been
overruled in England: and though limited as it was understood to be in
Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._
Pemberton, 2 Dall. 196), it has never been varied from since that time,
though it has frequently been admitted that Walton _v._ Shelley was
properly overruled. It ought not now to be overruled in Pennsylvania.
"After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2
Watts, 268), "this cannot be considered an open question, nor do we
think ourselves at liberty now to examine the foundations of the rule."
Unfortunately our Supreme Court have not always put this sound and wise
limitation upon their own power. In the case of Post _v._ Avery (5 W. &
S. 509), they declared in regard to a rule of more than thirty years'
standing, and confirmed by numerous cases, that they had "vainly hoped
that the inconvenience of the rule would have attracted the attention of
the legislature, _who alone are competent to abolish it_;" but as
nothing was to be expected from that quarter, "they were driven by
stress of necessity" to overrule a case expressly decided on the
authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years
afterwards, after having made the remarkable declaration that the
legislature alone was competent to abolish the rule, they nevertheless
pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr,
364.)
Lord Bacon says of retrospective laws: "_Cujus generis leges raro et
magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._"
Without any saving clause may the epithet and denunciation be applied to
judicial laws. They are always _retrospective_, but worse on many
accounts than _retrospective statutes_. Against the latter we have at
least the security of the constitutional provision that prohibits the
passage of any law, which impairs the obligation of a contract,
executory or executed; and it has been well held that this prohibition
applies to such an alteration of the law of evidence in force at the
time the contract was made, as would practically destroy the contract
itself by destroying the only means of enforcing it. There is no such
constitutional provision against judicial legislation. It sweeps away a
man's rights, vested, as he had reason to think, upon the firmest
foundation, without affording him the shadow of redress. Nor could
there, in the nature of things, be any such devised. When a court
overrules a previous decision, it does not simply repeal it; it must
pronounce it never to have been law. There is no instance on record, in
which a court has instituted the inquiry, upon what grounds the suitor
had relied in investing his property or making his contract, and
relieved him from the disastrous consequences, not of his, but of their
mistake, or the mistake of their predecessors. The man who, on the faith
of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811,
and treated as so well settled in itself and all its logical
consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme
Court, declined to hear the counsel, who relied on its authority,
invested his money in the purchase of a claim which could be proved only
by the testimony of the assignor, found himself stripped of his property
by a decision in 1845, the results of which were broader than even the
legislature itself would have been competent to effect, or indeed the
people themselves in their sovereign capacity, at least so long as the
Constitution of the United States continues to be "the supreme law of
the land, anything in the _constitution_ and laws of any State to the
contrary notwithstanding."
But judicial is much worse than legislative retrospection in another
aspect. The act of Assembly, if carefully worded, is at least a certain
rule. The act of the judicial legislature is invariably the precursor of
uncertainty and confusion. Apply to it a test, which may be set down as
unerring, never failing soon to discover the true metal from the base
counterfeit: its effect upon litigation. A decision in conformity to
established precedents is the mother of repose on that subject; but one
that departs from them throws the professional mind at sea without
chart or compass. The cautious counsellor will be compelled to say to
his client that he cannot advise. One cause is the general uncertainty
to which it leads. Men will persuade themselves easily, when it is their
interest to be persuaded, that if one well-established rule has been
overthrown, another, believed to be quite as wrong and perhaps not so
well fortified by time and subsequent cases, may share the same fate.
Shall counsel risk advising his client not to prosecute his claim or
defence, when another bolder than he, may moot the point and conduct
another cause resting upon the same question to a successful
termination? The very foundations of confidence and security are shaken.
The law becomes a lottery, in which every man feels disposed to try his
chance. Another cause of this uncertainty is more particular. A court
scarcely ever makes an open and direct overthrow of a deeply founded
rule at one stroke. It requires repeated blows. It can be seen to be in
danger, but not whether it is finally to fall. Hence it frequently
happens that there is a sliding scale of cases; and when the final
overthrow comes, it is very difficult to determine, whether any and
which steps of the process remain. Shortly after the decision in Post
_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the
inferior courts; in which the Judge, thinking that Post _v._ Avery,
however the intention may have been disclaimed, did in fact overrule
Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal
plaintiffs, a retiring partner, who upon dissolution had sold out for a
price _bona fide_ paid, all his interest in the firm to his copartners,
who continued the business. A motion was made for a new trial, and
before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)
had appeared, and the court, on the authority of that case, which
decided that an assignment must be colorable and made for the purpose of
rendering the assignor a witness in order to exclude him, ordered a new
trial. Before the case was again called for trial, the first volume of
Barr's Reports had been published, in which the Supreme Court said:
"The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins.
Co. must be exploded altogether. The essential interests of justice
demand that the decision in that case be no longer a precedent for
anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge
before whom the cause was then tried had no other course left, but again
to reject the witness, the very same thing on account of which a new
trial had been ordered.
The case of Post _v._ Avery is a most striking illustration of judicial
legislation and its mischievous results. It is usual to hear it excused
on account of the unequal and unjust operation of the rule reversed, by
which one party was heard but not the other, and the temptation it held
out for the manufacture of false claims, to be supported by perjury. But
it is to lose sight of the real question involved to raise such an
issue: for, like the execution of a notorious culprit by the expeditious
process of a mob and a lamp-post, instead of the formalities and delays
of law and courts, it may be a very good thing for the community to
have rid itself of the offender, but the way by which it was
accomplished was a heavy blow at the very root of the tree of public and
private security.
There is another decision of the Supreme Court of Pennsylvania, not so
bold and avowed an act of judicial legislation as that just mentioned,
but not less transparent, which may be cited as strongly illustrating
the same consequences of uncertainty and litigation flowing from a
disregard of the principle adverted to. From the year 1794, there had
existed in Pennsylvania an act of Assembly limiting the lien of the
debts of a decedent on his real estate, at first to seven, afterwards to
five years. No question ever arose before the court in regard to it.
Lien was considered to mean lien and not obligation: lands to be subject
to execution for all debts of the owner prosecuted to judgment, and of
course not barred by the Statute of Limitations; and the limitation of
the lien merely intended for the protection of purchasers from the heirs
or devisees or their lien creditors. Such was recognized to be the true
meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so
distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on
grounds palpably only relevant to what, in the opinion of the court, the
law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),
that the period named was a limitation not of the lien but of the debt
itself, and available in favor of heirs and devisees, volunteers under
the debtor and succeeding to his rights _cum onere_. As we have seen,
but two cases are to be produced of litigation arising out of this law
carried to the highest tribunal from 1794 to 1832. More than twenty
cases are to be found reported since, in which that court has been
called upon to draw distinctions and settle the precise extent of their
own law. Thus a little complicated system has grown up on this
construction of the act. A volume, indeed, might be written on Kerper
_v._ Hoch and its satellites, when if the act had been let alone to
speak for itself, and the prior decision followed, it would have been a
simple and intelligible rule of action, until the legislature saw fit
to alter it. It seems that this consideration pressed upon at least one
of the judges, who joined in that decision; for in a subsequent case,
when Kerper _v._ Hoch was cited, that Judge, with characteristic candor,
interrupted the counsel with the remark: "We will abide by the rule, but
it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
This, then, is the legitimate province of Jurisprudence, _Stare super
antiquas vias_, to maintain the ancient landmarks, to respect authority,
to guard the integrity of the law as a science, that it may be a certain
rule of decision, and promote that security of life, liberty, and
property, which, as we have seen, is the great end of human society and
government. Thus industry will receive its best encouragement; thus
enterprise will be most surely stimulated; thus constant additions to
capital by savings will be promoted; thus the living will be content in
the feeling that their earnings are safely invested; and the dying be
consoled with the reflection that the widow and orphan are left under
the care and protection of a government, which administers impartial
justice according to established laws.
With jurisprudence, lawyers have the most, nay all, to do. The opinion
of the Bar will make itself heard and respected on the Bench. With sound
views, their influence for good in this respect may well be said to be
incalculable. It is indeed the noblest faculty of the profession to
counsel the ignorant, defend the weak and oppressed, and to stand forth
on all occasions as the bulwark of private rights against the assaults
of power, even under the guise of law; but it has still other functions.
It is its office to diffuse sound principles among the people, that they
may intelligently exercise the controlling power placed in their hands,
in the choice of their representatives in the Legislature and of Judges,
in deciding, as they are often called upon to do, upon the most
important changes in the Constitution, and above all in the formation of
that public opinion which may be said in these times, almost without a
figure, to be _ultimate sovereign_. Whether they seek them or are
sought, lawyers, in point of fact, always have filled, in much the
larger proportion over every other profession, the most important public
posts. They will continue to do so, at least so long as the profession
holds the high and well-merited place it now does in the public
confidence.
PROFESSIONAL ETHICS.
There is, perhaps, no profession, after that of the sacred ministry, in
which a high-toned morality is more imperatively necessary than that of
the law. There is certainly, without any exception, no profession in
which so many temptations beset the path to swerve from the line of
strict integrity; in which so many delicate and difficult questions of
duty are continually arising. There are pitfalls and man-traps at every
step, and the mere youth, at the very outset of his career, needs often
the prudence and self-denial, as well as the moral courage, which belong
commonly to riper years. High moral principle is his only safe guide;
the only torch to light his way amidst darkness and obstruction. It is
like the spear of the guardian angel of Paradise:
No falsehood can endure
Touch of celestial temper, but returns
Of force to its own likeness.
The object of this Essay is to arrive at some accurate and intelligible
rules by which to guide and govern the conduct of professional life. It
would not be a difficult task to declaim in general propositions--to
erect a perfect standard and leave the practitioner to make his own
application to particular cases. It is a difficult task, however, as it
always is in practice, to determine the precise extent of a principle,
so as to know when it is encountered and overcome by another--to weigh
the respective force of duties which appear to come in conflict. In all
the walks of life men have frequently to do this: in none so often as at
the Bar.
The responsibilities, legal and moral, of the lawyer, arise from his
relations to the court, to his professional brethren and to his client.
It is in this order that it is proposed to consider and discuss the
various topics which grow out of this subject.
The oath directed by law in this State to be administered upon the
admission of an attorney to the bar, "to behave himself in the office of
attorney according to the best of his learning and ability, and with all
good fidelity, as well to the court as to the client; that he will use
no falsehood, nor delay any man's cause for lucre or malice," presents a
comprehensive summary of his duties as a practitioner.[1]
Fidelity to the court, fidelity to the client, fidelity to the claims of
truth and honor: these are the matters comprised in the oath of office.
It is an oath of office, and the practitioner, the incumbent of an
office--an office in the administration of justice[2]--held by authority
from those who represent in her tribunals the majesty of the
commonwealth, a majesty truly more august than that of kings or
emperors. It is an office, too, clothed with many privileges--privileges,
some of which are conceded to no other class or profession.[3] It is,
therefore, that the legislature have seen fit to require that there
should be added to the solemnity of the responsibility, which every man
virtually incurs when he enters upon the practice of his profession,
the higher and more impressive sanction of an appeal to the Searcher of
all Hearts.
Fidelity to the court, requires outward respect in words and actions.
The oath as it has been said, undoubtedly looks to nothing like
allegiance to the person of the judge; unless in those cases where his
person is so inseparable from his office, that an insult to the one, is
an indignity to the other. In matters collateral to official duty, the
judge is on a level with the members of the bar, as he is with his
fellow-citizens; his title to distinction and respect resting on no
other foundation, than his virtues and qualities as a man.[4] There are
occasions, no doubt, when duty to the interests confided to the charge
of the advocate demands firm and decided opposition to the views
expressed or the course pursued by the court, nay, even manly and open
remonstrance; but this duty may be faithfully performed, and yet that
outward respect be preserved, which is here inculcated. Counsel should
ever remember how necessary it is for the dignified and honorable
administration of justice, upon which the dignity and honor of their
profession entirely depend, that the courts and the members of the
courts, should be regarded with respect by the suitors and people; that
on all occasions of difficulty or danger to that department of
government, they should have the good opinion and confidence of the
public on their side. Good men of all parties prefer to live in a
country, in which justice according to law is impartially administered.
Counsel should bear in mind also the wearisomeness of a judge's office;
how much he sees and hears in the course of a long session, to try his
temper and patience. Lord Campbell has remarked that it is rather
difficult for a judge altogether to escape the imputation of discourtesy
if he properly values the public time; for one of his duties is to
"render it disagreeable to counsel to talk nonsense." Respectful
submission, nay, most frequently, even cheerful acquiescence in a
decision, when, as is most generally the case, no good result to his
cause can grow from any other course, is the part of true wisdom as well
as civility. An exception may be noted to the opinion of the Bench, as
easily in an agreeable and polite, as in a contemptuous and insulting
manner. The excitement of the trial of a cause caused by the conflict of
testimony, making often the probabilities of success to vibrate
backwards and forwards with as much apparent uncertainty as the chances
in a game of hazard, is no doubt often the reason and apology for
apparent disrespect in manner and language; but let it be observed, that
petulance in conflicts with the Bench, which renders the trial of causes
disagreeable to all concerned, has most generally an injurious effect
upon the interests of clients.
Indeed, it is highly important that the temper of an advocate should be
always equal. He should most carefully aim to repress everything like
excitability or irritability. When passion is allowed to prevail, the
judgment is dethroned. Words are spoken, or things done, which the
parties afterwards wish could be unsaid or undone. Equanimity and
self-possession are qualities of unspeakable value. An anecdote may
serve to illustrate this remark. There was a gentleman of the Bar of
Philadelphia, many years ago, who possessed these qualities in a very
remarkable degree. He allowed nothing that occurred in a cause to
disturb or surprise him. On an occasion in one of the neighboring
counties, the circuit of which it was his custom to ride, he was trying
a cause on a bond, when a witness for defendant was introduced, who
testified that the defendant had taken the amount of the bond, which was
quite a large sum, from his residence to that of the obligee, a distance
of several miles, and paid him in silver in his presence. The evidence
was totally unexpected; his clients were orphan children; all their
fortune was staked on this case. The witness had not yet committed
himself as to how the money was carried. Without any discomposure--without
lifting his eyes or pen from paper--he made on the margin of his notes
of trial a calculation of what that amount in silver would weigh; and
when it came his turn to cross-examine, calmly proceeded to make the
witness repeat his testimony step by step,--when, where, how, and how
far the money was carried--and then asked him if he knew how much that
sum of money weighed, and upon naming the amount, so confounded the
witness, party, and counsel engaged for the defendant, that the defence
was at once abandoned, and a verdict for the plaintiff rendered on the
spot.[5]
Another plain duty of counsel is to present every thing in the cause to
the court openly in the course of the public discharge of its duties. It
is not often, indeed, that gentlemen of the Bar so far forget themselves
as to attempt to exert privately an influence upon the judge, to seek
private interviews, or take occasional opportunities of accidental or
social meetings to make _ex parte_ statements, or to endeavor to impress
their views. They know that such conduct is wrong in itself, and has a
tendency to impair confidence in the administration of justice, which
ought not only to be pure but unsuspected. A judge will do right to
avoid social intercourse with those who obtrude such unwelcome matters
upon his moments of relaxation. There is one thing, however, of which
gentlemen of the Bar are not sufficiently careful,--to discourage and
prohibit their clients from pursuing a similar course. The position of
the judge in relation to a cause under such circumstances is very
embarrassing, especially, as is often the case, if he hears a good deal
about the matter before he discovers the nature of the business and
object of the call upon him. Often the main purpose of such visits is
not so much to plead the cause, as to show the judge who the party
is--an acquaintance, perhaps--and thus, at least, to interest his
feelings. Counsel should set their faces against all undue influences of
the sort; they are unfaithful to the court, if they allow any improper
means of the kind to be resorted to. _Judicem nec de obtinendo jure
orari oportet nec de injuria exorari._ It may be in place to remark here
that the counsel in a cause ought to avoid all unnecessary communication
with the jurors before or during any trial in which he may be
concerned. He should enforce the same duty upon his client. Any attempt
by an attorney to influence a juror by arguments or otherwise, will, of
course, if discovered and brought to the notice of the court, lead to
expulsion or suspension from the Bar, according to the degree and
quality of the offence. The freedom of the jury-box from extraneous
influences is a matter of such vital moment in our system that the
courts are bound to watch over it with jealous eyes. "It would be an
injury to the administration of justice," says C. J. Tilghman, "not to
declare that it is gross misbehavior for any person to speak with a
juror, or for a juror to permit any person to speak with him, respecting
the cause he is trying, at any time after he is summoned and before the
verdict is delivered." "The words thus uttered," says Judge Hare, "by
one of the best men and purest magistrates that ever filled the judicial
office, must find an echo in every bosom. The principle which dictated
them does not require the aid of argument or elucidation; it is native
to the conscience, and will be apparent to all who consult the monitor
in their own breast. The wrong is aggravated when the taint of personal
interest mingles with it, as when committed by a party to the cause, but
appears in the worst form when it is the act of attorneys or counsel,
who are the sworn officers of the court, whose duty it is to act as
guardians of the fountains of justice, and who are false to their charge
when they defile or taint those waters, which they are pledged to keep
pure and unpolluted. Such conduct in counsel is a gross breach of trust,
for which a removal from the trust is but an inadequate punishment."[6]
There is another duty to the court, and that is, to support and maintain
it in its proper province wherever it comes in conflict with the
co-ordinate tribunal--the jury. The limits of these two provinces are
settled with great accuracy; and even if a judge makes a mistake, the
only proper place to correct his error is in the superior tribunal,--the
Court of Errors. It has been held in a multitude of cases, that verdicts
against the charge of the court in point of law, will be set aside
without limitation as to the number of times, and that without regard to
the question whether the direction of the court in point of law was
right or wrong. There is a technical reason, which makes this course in
all cases imperative. The losing party, if the jury were allowed to
decide the law for him, would be deprived of his exception, and of his
unquestionable right to have the law of his case pronounced upon by the
Supreme Court. _Ad questiones juris respondeant judices,--ad questiones
facti juratores._ A disregard by the jury of the law, as laid down by
the judge, is always therefore followed by additional and unnecessary
delay and expense, and it is never an advantage to a party in the long
run to obtain a verdict in opposition to the direction of the court.[7]
It is best for counsel to say in such cases, where nothing is left by
the charge to the jury, that they do not ask for a verdict. It has a
fair, candid, and manly aspect towards court, jury, opposite party, and
even client. Instances of counsel urging or endeavoring to persuade a
jury to disregard the charge may sometimes occur, but they are
exceedingly rare when there is good feeling between the Bench and the
Bar, and when the members of the profession have just and enlightened
views of their duty as well as interest.
It need hardly be added that a practitioner ought to be particularly
cautious, in all his dealings with the court, to use no deceit,
imposition, or evasion--to make no statements of facts which he does not
know or believe to be true--to distinguish carefully what lies in his
own knowledge from what he has merely derived from his instructions--to
present no paper-books intentionally garbled. "Sir Matthew Hale
abhorred," says his biographer, "those too common faults of
misrepresenting evidence, quoting precedents or books falsely, or
asserting anything confidently by which ignorant juries and weak judges
are too often wrought upon."[8] One such false step in a young lawyer
will do him an injury in the opinion of the Bench and of his
professional brethren, which it will take years to redeem, if indeed it
ever can be entirely redeemed.
A very great part of a man's comfort, as well as of his success at the
Bar, depends upon his relations with his professional brethren. With
them he is in daily necessary intercourse, and he must have their
respect and confidence, if he wishes to sail along in smooth waters. He
cannot be too particular in keeping faithfully and liberally every
promise or engagement he may make to them. One whose perfect
truthfulness is even suspected by his brethren at the Bar has always an
uneasy time of it. He will be constantly mortified by observing
precautions taken with him which are not used with others. It is not
only morally wrong but dangerous to mislead an opponent, or put him on
a wrong scent in regard to the case. It would be going too far to say
that it is ever advisable to expose the weakness of a client's cause to
an adversary, who may be unscrupulous in taking advantage of it; but it
may be safely said, that he who sits down deliberately to plot a
surprise upon his opponent, and which he knows can succeed only by its
being a surprise, deserves to fall, and in all probability will fall,
into the trap which his own hands have laid. "Whoso diggeth a pit," says
the wise man, "shall fall therein, and he that rolleth a stone, it will
return upon him." If he should succeed, he will have gained with his
success not the admiration and esteem, but the distrust and dislike of
one of his associates as long as he lives. He should never unnecessarily
have a personal difficulty with a professional brother. He should
neither give nor provoke insult. Nowhere more than at the Bar is that
advice valuable:
"Beware
Of entrance to a quarrel; but being in,
Bear it that the opposed may beware of thee."
There is one more caution to be given under this head. Let him shun most
carefully the reputation of a sharp practitioner. Let him be liberal to
the slips and oversights of his opponent wherever he can do so, and in
plain cases not shelter himself behind the instructions of his client.
The client has no right to require him to be illiberal--and he should
throw up his brief sooner than do what revolts against his own sense of
what is demanded by honor and propriety.
Nothing is more certain than that the practitioner will find, in the
long run, the good opinion of his professional brethren of more
importance than that of what is commonly called the public. The
foundations of the reputation of every truly great lawyer will be
discovered to have been laid here. Sooner or later, the real public--the
business men of the community, who have important lawsuits, and are
valuable clients--indorse the estimate of a man entertained by his
associates of the Bar, unless indeed there be some glaring defect of
popular qualities. The community know that they are better qualified to
judge of legal attainments, that they have the best opportunity of
judging, and that they are slow in forming a judgment. The good opinion
and confidence of the members of the same profession, like the King's
name on the field of battle, is "a tower of strength;" it is the title
of legitimacy. The ambition to please the people, to captivate jurors,
spectators, and loungers about the court room, may mislead a young man
into pertness, flippancy, and impudence, things which often pass current
for eloquence and ability with the masses; but the ambition to please
the Bar can never mislead him. Their good graces are only to be gained
by real learning, by the strictest integrity and honor, by a courteous
demeanor, and by attention, accuracy and punctuality in the transaction
of business.
The topic of fidelity to the client involves the most difficult
questions in the consideration of the duty of a lawyer.
He is legally responsible to his client only for the want of ordinary
care and ordinary skill. That constitutes gross negligence. It is
extremely difficult to fix upon any rule which shall define what is
negligence in a given case. The habits and practice of men are widely
different in this regard. It has been laid down that if the ordinary and
average degree of diligence and skill could be determined, it would
furnish the true rule.[9] Though such be the extent of legal liability,
that of moral responsibility is wider. Entire devotion to the interest
of the client, warm zeal in the maintenance and defence of his rights,
and the exertion of his utmost learning and ability,--these are the
higher points, which can only satisfy the truly conscientious
practitioner.
But what are the limits of his duty when the legal demands or interests
of his client conflict with his own sense of what is just and right?
This is a problem by no means of easy solution.
That lawyers are as often the ministers of injustice as of justice is
the common accusation in the mouth of gainsayers against the profession.
It is said there must be a right and a wrong side to every lawsuit. In
the majority of cases it must be apparent to the advocate, on which side
is the justice of the cause; yet he will maintain, and often with the
appearance of warmth and earnestness, that side which he must know to be
unjust, and the success of which will be a wrong to the opposite party.
Is he not then a participator in the injustice?
It may be answered in general:--
Every case is to be decided by the tribunal before which it is brought
for adjudication upon the evidence, and upon the principles of law
applicable to the facts as they appear upon the evidence. No court or
jury are invested with any arbitrary discretion to determine a cause
according to their mere notions of justice. Such a discretion vested in
any body of men would constitute the most appalling of despotisms. Law,
and justice according to law--this is the only secure principle upon
which the controversies of men can be decided. It is better on the whole
that a few particular cases of hardship and injustice, arising from
defect of evidence or the unbending character of some strict rule of
law, should be endured, than that general insecurity should pervade the
community from the arbitrary discretion of the judge. It is this which
has blighted the countries of the East as much as cruel laws or despotic
executives. Thus the legislature has seen fit in certain cases to assign
a limit to the period within which actions shall be brought; in order to
urge men to vigilance, and to prevent stale claims from being suddenly
revived against men whose vouchers are destroyed or whose witnesses are
dead. It is true, _in foro conscientiæ_, a defendant, who knows that he
honestly owes the debt sued for and that the delay has been caused by
indulgence or confidence on the part of his creditor, ought not to plead
the statute. But if he does plead it, the judgment of the court must be
in his favor.
Now the lawyer is not merely the agent of the party; he is an officer of
the court. The party has a right to have his case decided upon the law
and the evidence, and to have every view presented to the minds of his
judges, which can legitimately bear upon that question. This is the
office which the advocate performs. He is not morally responsible for
the act of the party in maintaining an unjust cause, nor for the error
of the court, if they fall into error, in deciding it in his favor. The
court or jury ought certainly to hear and weigh both sides; and the
office of the counsel is to assist them by doing that, which the client
in person, from want of learning, experience, and address, is unable to
do in a proper manner. The lawyer, who refuses his professional
assistance because in his judgment the case is unjust and indefensible,
usurps the functions of both judge and jury.
As an answer to any sweeping objection made to the profession in
general, the view thus presented may be quite satisfactory. It by no
means follows, however, as a principle of private action for the
advocate, that all causes are to be taken by him indiscriminately and
conducted with a view to one single end, _success_. It is much to be
feared, however, that the prevailing tone of professional ethics leads
practically to this result. He has an undoubted right to refuse a
retainer, and decline to be concerned in any cause, at his discretion.
It is a discretion to be wisely and justly exercised. When he has once
embarked in a case, he cannot retire from it without the consent of his
client or the approbation of the court.[10] To come before the court
with a revelation of facts, damning to his client's case, as a ground
for retiring from it, would be a plain breach of the confidence reposed
in him, and the law would seal his lips.[11] How then is he to acquit
himself? Lord Brougham, in his justly celebrated defence of the Queen,
went to very extravagant lengths upon this subject; no doubt he was led
by the excitement of so great an occasion to say what cool reflection
and sober reason certainly never can approve. "An advocate," said he,
"in the discharge of his duty knows but one person in all the world, and
that person is his client. To save that client by all means and
expedients, and at all hazards and costs to other persons, and among
them to himself, is his first and only duty; and in performing this
duty he must not regard the alarm, the torments, the destruction he may
bring upon others. Separating the duty of a patriot from that of an
advocate, he must go on reckless of consequences; though it should be
his unhappy lot to involve his country in confusion."
On the other hand, and as illustrative of the practical difficulty,
which this question presented to a man, with as nice a perception of
moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir
Matthew Hale: "If he saw a cause was unjust, he for a great while would
not meddle further in it, but to give his advice that _it was so_; if
the parties after that would go on, they were to seek another
counsellor, for he would assist none in acts of injustice; if he found
the cause doubtful or weak in point of law, he always advised his
clients to agree their business. Yet afterwards he abated much of the
scrupulosity he had about causes that appeared at first unjust, upon
this occasion; there were two causes brought him, which by the ignorance
of the party or their attorney, were so ill-represented to him that they
seemed to be very bad; but he inquiring more narrowly into them, found
they were really very good and just; so after this he slackened much of
his former strictness of refusing to meddle in causes upon the ill
circumstances that appeared in them at first."[12]
It may be delicate and dangerous ground to tread upon to undertake to
descend to particulars upon such a subject. Every case must, to a great
degree, depend upon its own circumstances, known, peradventure, to the
counsel alone; and it will often be hazardous to condemn either client
or counsel upon what appears only. A hard plea--a sharp point--may
subserve what is at bottom an honest claim, or just defence; though the
evidence may not be within the power of the parties, which would make it
manifest.
There are a few propositions, however, which appear to me to be sound in
themselves, and calculated to solve this problem practically in the
majority of cases: at least to assist the mind in coming to a safe
conclusion _in foro conscientiæ_, in the discharge of professional duty.
There is a distinction to be made between the case of prosecution and
defence for crimes; between appearing for a plaintiff in pursuit of an
unjust claim, and for a defendant in resisting what appears to be a just
one.
Every man, accused of an offence, has a constitutional right to a trial
according to law: even if guilty, he ought not to be convicted and
undergo punishment unless upon legal evidence; and with all the forms
which have been devised for the security of life and liberty. These are
the panoply of innocence when unjustly arraigned; and guilt cannot be
deprived of it, without removing it from innocence. He is entitled,
therefore, to the benefit of counsel to conduct his defence, to
cross-examine the witnesses for the State, to scan, with legal
knowledge, the forms of the proceeding against him, to present his
defence in an intelligible shape, to suggest all those reasonable doubts
which may arise from the evidence as to his guilt, and to see that if he
is convicted, it is according to law. A circumstance the celebrated Lord
Shaftesbury once so finely turned to his purpose must often happen to a
prisoner at his trial. Attempting to speak on the bill for granting
counsel to prisoners in cases of high treason, he was confounded, and
for some time could not proceed, but recovering himself, he said, "What
now happened to him would serve to fortify the arguments for the bill.
If he innocent and pleading for others was daunted at the augustness of
such an assembly, what must a man be who should plead before them for
his life?"[13] The courts are in the habit of assigning counsel to
prisoners who are destitute, and who request it; and counsel thus named
by the court cannot decline the office.[14] It is not to be termed
screening the guilty from punishment, for the advocate to exert all his
ability, learning, and ingenuity, in such a defence, even if he should
be perfectly assured in his own mind of the actual guilt of the
prisoner.[15]
It is a different thing to engage as private counsel in a prosecution
against a man whom he knows or believes to be innocent. Public
prosecutions are carried on by a public officer, the Attorney-General,
or those who act in his place; and it ought to be a clear case to induce
gentlemen to engage on behalf of private interests or feelings, in such
a prosecution. It ought never to be done against the counsel's own
opinion of its merits. There is no call of professional duty to balance
the scale, as there is in the case of a defendant. It is in every case
but an act of courtesy in the Attorney-General to allow private counsel
to take part for the Commonwealth; such a favor ought not to be asked,
unless in a cause believed to be manifestly just. The same remarks apply
to mere assistance in preparing such a cause for trial out of court, by
getting ready and arranging the evidence and other matters connected
with it: as the Commonwealth has its own officers, it may well, in
general, be left to them. There is no obligation on an attorney to
minister to the bad passions of his client; it is but rarely that a
criminal prosecution is pursued for a valuable private end, the
restoration of goods, the maintenance of the good name of the
prosecutor, or closing the mouth of a man who has perjured himself in a
court of justice. The office of Attorney-General is a public trust,
which involves in the discharge of it, the exertion of an almost
boundless discretion, by an officer who stands as impartial as a judge.
"The professional assistant, with the regular deputy, exercises not his
own discretion, but that of the Attorney-General, whose _locum tenens_
at sufferance, he is; and he consequently does so under the obligation
of the official oath."[16] On the other hand, if it were considered that
a lawyer was bound or even had a right to refuse to undertake the
defence of a man because he thought him guilty, if the rule were
universally adopted, the effect would be to deprive a defendant, in such
cases, of the benefit of counsel altogether.
The same course of remark applies to civil causes. A defendant has a
legal right to require that the plaintiffs demand against him should be
proved and proceeded with according to law. If it were thrown upon the
parties themselves, there would he a very great inequality between them,
according to their intelligence, education, and experience,
respectively. Indeed, it is one of the most striking advantages of
having a learned profession, who engage as a business in representing
parties in courts of justice, that men are thus brought nearer to a
condition of equality, that causes are tried and decided upon their
merits, and do not depend upon the personal characters and
qualifications of the immediate parties.[17] Thus, too, if a suit be
instituted against a man to recover damages for a tort, the defendant
has a right to all the ingenuity and eloquence he can command in his
defence, that even if he has committed a wrong, the amount of the
damages may not exceed what the plaintiff is justly entitled to recover.
But the claim of a plaintiff stands upon a somewhat different footing.
Counsel have an undoubted right, and are in duty bound, to refuse to be
concerned for a plaintiff in the legal pursuit of a demand, which
offends his sense of what is just and right. The courts are open to the
party in person to prosecute his own claim, and plead his own cause;
and although he ought to examine and be well-satisfied before he refuses
to a suitor the benefit of his professional skill and learning, yet it
would be on his part an immoral act to afford that assistance, when his
conscience told him that the client was aiming to perpetrate a wrong
through the means of some advantage the law may have afforded him. "It
is a popular but gross mistake," says the late Chief Justice Gibson, "to
suppose that a lawyer owes no fidelity to any one except his client, and
that the latter is the keeper of his professional conscience. He is
expressly bound by his official oath to behave himself, in his office of
attorney, with all fidelity to the court as well as the client; and he
violates it when he consciously presses for an unjust judgment, much
more so when he presses for the conviction of an innocent man.... The
high and honorable office of a counsel would be degraded to that of a
mercenary, were he compelled to do the biddings of his client against
the dictates of his conscience."[18] The sentiment has been expressed
in flowing numbers by our great commentator, Sir William Blackstone:--
"To Virtue and her friends a friend,
Still may my voice the weak defend:
Ne'er may my prostituted tongue
Protect the oppressor in his wrong;
Nor wrest the spirit of the laws,
To sanctify the villain's cause."
Another proposition which may be advanced upon this subject is, that
there may and ought to be a difference made in the mode of conducting a
defence against what is believed to be a righteous, and what is believed
to be an unrighteous claim. A defence in the former case should be
conducted upon the most liberal principles. When he is contending
against the claim of one, who is seeking, as he believes, through the
forms of law, to do his client an injury, the advocate may justifiably
avail himself of every honorable ground to defeat him. He may begin at
once by declaring to his opponent or his professional adviser, that he
holds him at arm's length, and he may keep him so during the whole
contest. He may fall back upon the instructions of his client, and
refuse to yield any legal vantage ground, which may have been gained
through the ignorance or inadvertence of his opponent. Counsel, however,
may and even ought to refuse to act under instructions from a client to
defeat what he believes to be an honest and just claim, by insisting
upon the slips of the opposite party, by sharp practice, or special
pleading--in short, by any other means than a fair trial on the merits
in open court. There is no professional duty, no virtual engagement with
the client, which compels an advocate to resort to such measures, to
secure success in any cause, just or unjust; and when so instructed, if
he believes it to be intended to gain an unrighteous object, he ought
to throw up the cause, and retire from all connection with it, rather
than thus he a participator in other men's sins.
Moreover, no counsel can with propriety and a good conscience express to
court or jury his belief in the justice of his client's cause, contrary
to the fact. Indeed, the occasions are very rare in which he ought to
throw the weight of his own private opinion into the scales in favor of
the side he has espoused. If that opinion has been formed on a statement
of facts not in evidence, it ought not to be heard,--it would be illegal
and improper in the tribunal to allow any force whatever to it; if on
the evidence only, it is enough to show from that the legal and moral
grounds on which such opinion rests. Some very sound and judicious
observations have been made by Mr. Whewell in a recent work on the
Elements of Moral and Political Science, which deserve to be quoted at
length;--
"Some moralists," says he, "have ranked with the cases in which
convention supersedes the general rule of truth, an advocate asserting
the justice, or his belief in the justice, of his client's cause. Those
who contend for such indulgence argue that the profession is an
instrument for the administration of justice: he is to do all he can for
his client: the application of laws is a matter of great complexity and
difficulty: that the right administration of them in doubtful cases is
best provided for if the arguments on each side are urged with the
utmost force. The advocate is not the judge.
"This may be all well, if the advocate let it be so understood. But if
in pleading he assert his belief that his cause is just when he believes
it unjust, he offends against truth, as any other man would do who in
like manner made a like assertion.
"Every man, when he advocates a case in which morality is concerned, has
an influence upon his hearers, which arises from the belief that he
shares the moral sentiments of all mankind. This influence of his
supposed morality is one of his possessions, which, like all his
possessions, he is bound to use for moral ends. If he mix up his
character as an advocate with his character as a moral agent, using his
moral influence for the advocate's purpose, he acts immorally. He makes
the moral rule subordinate to the professional rule. He sells to his
client not only his skill and learning, but himself. He makes it the
supreme object of his life to be not a good man, but a successful
lawyer.
"There belong to him, moreover, moral ends which regard his profession;
namely, to make it an institution fitted to promote morality. To raise
and purify the character of the profession, so that it may answer the
ends of justice without requiring insincerity in the advocate, is a
proper end for a good man who is a lawyer; a purpose on which he may
well and worthily employ his efforts and influence."[19]
Nothing need be added to enforce what has been so well said. The remark,
however, may be permitted, that the expression of private opinion as to
the merits of a controversy often puts the counsel at fearful odds. A
young man, unknown to the court or the jury, is trying his first case
against a veteran of standing and character: what will the asseveration
of the former weigh against that of the latter? In proportion, then, to
the age, experience, maturity of judgment, and professional character of
the man, who falsely endeavors to impress the court and jury with the
opinion of his confidence in the justice of his case, in that proportion
is there danger that injury will be done and wrong inflicted--in that
proportion is there moral delinquency in him who resorts to it.
Much interest was excited some years ago in England, by the
circumstances attending the defence of Courvoisier, indicted for the
murder of Lord William Russell. The crime was one of great atrocity. It
came out after his conviction, that during the trial he had confessed
his guilt to his counsel, of whom the eminent barrister Charles
Phillips, Esq., was one. Mr. Phillips was accused of having endeavored,
notwithstanding this confession, to fasten suspicion on the other
servants in the house, to induce the belief that the police had
conspired with them to manufacture evidence against the prisoner, and to
impress the jury with his own personal belief in the innocence of his
client. How far these accusations were just in point of fact was the
subject of lively discussion in the newspapers and periodicals of the
time.[20]
The language of counsel, on such occasions, during the excitement of the
trial, in the fervor of an address to the jury, is not to be calmly and
nicely scanned in the printed report. The testimony of such a witness as
Baron Parke, at the time and on the spot,--he, too, aware of the exact
position of Mr. Phillips--and that confirmed by Chief Justice Tindal,
is conclusive. To charge him with _acting falsehood_, that is, with
presenting the case as it appeared upon the testimony, earnestly and
confidently, means that he did not do that, which would have been worse
than retiring from his post.
The non-professional, as well as professional public in England,
however, agreed in saying that he would not have been justified in
withdrawing from the case: he was still bound to defend the accused upon
the evidence; though a knowledge of his guilt, from whatever source
derived, might and ought materially to influence the mode of the
defence. No right-minded man, professional or otherwise, will contend
that it would have been right in him to have lent himself to a defence,
which might have ended, had it been successful, in bringing down an
unjust suspicion upon an innocent person; or even to stand up and
falsely pretend a confidence in the truth and justice of his cause,
which he did not feel. But there were those on this side of the
Atlantic, who demurred to the conclusion, that an advocate is under a
moral obligation to maintain the defence of a man who has admitted to
him his guilt. Men have been known, however, under the influence of some
delusion, to confess themselves guilty of crimes which they had not
committed: and hence, to decline acting as counsel in such a case, is a
dangerous refinement in morals.[21] Nothing seems plainer than the
proposition, that a person accused of a crime is to be tried and
convicted, if convicted at all, _upon evidence_, and _whether guilty or
not guilty_, if the evidence is insufficient to convict him, he has _a
legal right_ to be acquitted. The tribunal that convicts without
sufficient evidence may decide according to the fact; but the next jury,
acting on the same principle, may condemn an innocent man. If this be
so, is not the prisoner in every case entitled to have the evidence
carefully sifted, the weak points of the prosecution exposed, the
reasonable doubts presented which should weigh in his favor? And what
offence to truth or morality does his advocate commit in discharging
that duty to the best of his learning and ability? What apology can he
make for throwing up his brief? The truth he cannot disclose; the law
seals his lips as to what has thus been communicated to him in
confidence by his client. He has no alternative, then, but to perform
his duty. It is his duty, however, as an advocate merely, as Baron Parke
has well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE
EVIDENCE. Beyond that, he is not bound to go in any case; in a case in
which he is satisfied in his own mind of the guilt of the accused, he is
not justified in going.
Under all circumstances, the utmost candor should be used towards the
client. This is imperatively demanded alike by considerations of duty
and interest. It is much better for a man occasionally to lose a good
client, than to fail in so plain a matter. It is nothing but selfishness
that can operate upon a lawyer when consulted to conceal from the party
his candid opinion of the merits, and the probable result. It is fair
that he should know it; for he may not choose to employ a man whose
views may operate to check his resorting to all lawful means to effect
success. Besides, most men, when they consult an attorney, wish a candid
opinion; it is what they ask and pay for. It is true, that it is often
very hard to persuade a man that he has not the best side of a lawsuit:
his interest blinds his judgment: his passion will not allow him to
reflect calmly, and give due weight to opposing considerations. There
are many persons who will go from lawyer to lawyer with a case, until
they find one who is willing to express an opinion which tallies with
their own. Such a client the lawyer, who acts firmly upon the principle
to which I have adverted, will now and then lose; but even such an one,
when finally unsuccessful, as the great probability is that he will be,
when he comes to sit down and calculate all that he has lost in time,
money, and character, by acting contrary to the advice first given, will
revert to the candid and honest opinion he then received, and determine,
if ever he gets into another difficulty of the kind, to resort to that
attorney, and abide by his advice. Thus may a man build up for himself a
character far outweighing, even in pecuniary value, all such paltry
particular losses; it is to such men that the best clients resort; they
have the most important and interesting lawsuits, and enjoy by far the
most lucrative practice.
A very important part of the advocate's duty is to moderate the passions
of the party, and where the case is of a character to justify it, to
encourage an amicable compromise of the controversy. It happens too
often at the close of a protracted litigation that it is discovered,
when too late, that the play has not been worth the candle, and that it
would have been better, calculating everything, for the successful party
never to have embarked in it--to have paid the claim, if defendant, or
to have relinquished it, if he was plaintiff. Counsel can very soon
discover whether such is likely to be the case, and it cannot be doubted
what their plain duty is under such circumstances.
Besides this, the advocate is bound in honor, as well as duty, to
disclose to the client at the time of the retainer, every circumstance
of his own connection with the parties or prior relation to the
controversy, which can or may influence his determination in the
selection of him for the office. An attorney is bound to disclose to his
client every adverse retainer, and even every prior retainer, which may
affect the discretion of the latter. No man can be supposed to be
indifferent to the knowledge of facts, which work directly on his
interests, or bear on the freedom of his choice of counsel. When a
client employs an attorney, he has a right to presume, if the latter be
silent on the point, that he has no engagements which interfere, in any
degree, with his exclusive devotion to the cause confided to him; that
he has no interest which may betray his judgment or endanger his
fidelity.[22]
It is in some measure the duty of counsel to be the keeper of the
conscience of the client; not to suffer him, through the influence of
his feelings or interest, to do or say anything wrong in itself, and of
which he would himself afterwards repent. This guardianship may be
carefully, and at the same time kindly exerted. One particular will be
mentioned in which its exercise is frequently called for. The client
will be often required, in the course of a cause, to make affidavits of
various kinds. There is no part of his business with his client, in
which a lawyer should be more cautious, or even punctilious, than this.
He should be careful lest he incur the moral guilt of subornation of
perjury, if not the legal offence. An attorney may have communications
with his client in such a way, in instructing him as to what the law
requires him to state under oath or affirmation, in order to accomplish
any particular object in view, as to offer an almost irresistible
temptation and persuasion to stretch the conscience of the affiant up to
the required point. Instead of drawing affidavits, and permitting them
to be sworn to as a matter of course, as it is to be feared is too often
the case, counsel should on all occasions take care to treat an oath
with great solemnity, as a transaction to be very scrupulously watched,
because involving great moral peril as well as liability to public
disgrace and infamy. It lies especially in the way of the profession to
give a high tone to public sentiment upon this all-important subject,
the sacredness of an oath. It is always the wisest and best course, to
have an interview with the client, and draw from him by questions,
whether he knows the facts which you know he is required to state, so
that you may judge whether, as a conscientious man, he ought to make
such affidavit.
Another particular may be adverted to: the attempt to cover property
from the just demands of creditors. It is to be feared that gentlemen
of the Bar sometimes shut their eyes and, under the influence of
feelings of commiseration for an unfortunate client, feign not to see
what is really very palpable to everybody else. Surely they ought never
to sanction, directly or indirectly such shams, especially when the
machinery of a judicial sale is introduced more securely to accomplish
the object. A purchase is made in the name of a friend for the debtor's
benefit and with the debtor's money, though it may be hard to make that
appear by legal evidence. When advice is asked, as it sometimes is, how
such a thing may be safely and legally done, the idea held prominently
before the party by his counsel should be, that his estate is the
property of his creditors, and that nothing but their consent will
justify an appropriation of any part of it to his benefit.
Lawyers too may very materially assist in giving a high tone to public
sentiment in the matter of stay and exemption laws. It is not every case
in which a man has a legal that he has a moral right to claim the
benefit of such laws. When a debtor with ample means to pay only wants
to harass and worry his creditor, who has resorted to legal process and
obtained a judgment, by keeping him out of his money, as it is often
expressed, as long as he can; or where he wishes to take advantage of
hard times to make more than legal interest, or with concealed means
unknown to the execution plaintiff, claims the exemption: these are
cases which counsel ought to hold up in their proper light to those whom
they advise, and wash their hands of the responsibility of them.
According to the Jewish law, the cloak or outer garment, which was
generally used by the poorer classes as a covering during sleep, could
not be retained by the creditor to whom it had been given in pledge, and
of course was exempt by law from seizure for debt; and our blessed
Saviour, in his sermon on the mount, has been supposed to refer to this
exemption law, when he said: "And if any man will sue thee at the law
and take away thy coat, let him have thy cloak also;" that is, confine
not yourself in your transactions with your fellow-men to giving them
simply the strict measure of their legal rights: give them all that is
honestly theirs as far as you have ability, whether the law affords them
a remedy or not. There have been some noble instances of bankrupts who,
upon subsequently retrieving their fortunes, have fully discharged all
their old debts, principal and interest, though released or barred by
the Statute of Limitations; but such instances would be more common if
the spirit of the high and pure morality, which breathes through the
sermon on the mount, prevailed more extensively.
An important clause in the official oath is "to delay no man's cause for
lucre or malice." It refers, no doubt, primarily, to the cause intrusted
to the attorney, and prohibits him from resorting to such means for the
purpose of procuring more fees, or of indulging any feeling he may have
against his client personally. Such conduct would be a clear case of a
violation of the oath. But it is a question, also, whether the case
generally, in which he is retained, is not comprehended.[23] How far,
then, can he safely go in delaying the cause for the benefit of, and in
pursuance of the instructions of his client? A man comes to him and
says: "I have no defence to this claim; it is just and due, but I have
not the means to pay it; I want all the time you can get for me." The
best plan in such instances, is, no doubt, at once frankly to address
his opponent, and he will generally be willing to grant all the delay
which he knows, in the ordinary course can be gained, and perhaps more,
as a consideration for his own time and trouble saved. If, however, that
be impracticable, it would seem that the suitor has a right to all the
delay, which is incident to the ordinary course of justice. The counsel
may take all means for this purpose, which do not involve artifice or
falsehood in himself or the party. The formal pleas put in are not to be
considered as false in this aspect, except such as are required to be
sustained by oath. In an ejectment, for example, an appearance need not
be entered until the second term, the legislature having seen fit to
give that much respite to the unjust possessor of real estate. But to
stand by and see a client swear off a case on account of the absence of
a material witness, when he knows that no witness can be material; or
further to make affidavit that his appeal or writ of error is not
intended for delay, when he knows that it is intended for nothing else,
no high-minded man will be privy or consent to such actions, much less
have any active participation in them.
Subject, however, to the qualifications which have been stated, when a
cause is undertaken, the great duty which the counsel owes to his
client, is an immovable fidelity. Every consideration should induce an
honest and honorable man to regard himself, as far as the cause is
concerned, as completely identified with his client. The criminal and
disgraceful offence of taking fees of two adversaries, of allowing
himself to be approached corruptly, whether directly or indirectly, with
a view to conciliation, ought, like parricide in the Athenian law, to be
passed over in silence in a code of professional ethics.[24] All
considerations of self should be sunk by the lawyer in his duty to the
cause. The adversary may be a man of station, wealth, and influence; his
good will may be highly valuable to him; his enmity may do him great
injury. He should not permit such thoughts to arise in his mind. He
should do his duty manfully, without fear, favor, or affection.
At the same time, let it be observed, that no man ought to allow himself
to be hired to abuse the opposite party. It is not a desirable
professional reputation to live and die with, that of a rough tongue,
which makes a man to be sought out, and retained to gratify the
malevolent feelings of a suitor in hearing the other side well lashed
and vilified. An opponent should always be treated with civility and
courtesy, and if it be necessary to say severe things of him or his
witnesses, let it be done in the language, and with the bearing, of a
gentleman. There is no point in which it becomes an advocate to be more
cautious, than in his treatment of the witnesses. In general, fierce
assaults upon them, unnecessary trifling with their feelings, rough and
uncivil behavior towards them in cross-examination, whilst it may
sometimes exasperate them to such a pitch, that they will perjure
themselves in the drunkenness of their passion, still, most generally
tells badly on the jury. They are apt to sympathize with a witness under
such circumstances.[25] It is as well unwise as unprofessional, in
counsel, to accuse a witness of having forsworn himself, unless some
good ground, other than the mere instruction of the client, is present
in the evidence to justify it. He may sift most searchingly, and yet
with a manner and courtesy which affords no ground for irritation,
either in witness or opponent; and in such case, if his questions
produce irritation, it is a circumstance which will weigh in his favor.
The practitioner owes to his client, with unshaken fidelity, the
exertion of all the industry and application of which he is capable to
become perfect master of the questions at issue, to look at them in all
their bearings, to place himself in the opposite interest, and to
consider and be prepared as far as possible, for all that may be said or
done on the contrary part. The duty of full and constant preparation, is
too evident to require much elaboration. It is better, whenever it is
possible to do so, to make this examination immediately upon the
retainer, and not to postpone it to later stages in the proceedings. The
opportunity is often lost, of ascertaining facts, and securing evidence,
from putting off till too late, the business of understanding thoroughly
all that it will be necessary to adduce on the trial. In this way, a
lawyer will attain what is very important, that his client may be always
prepared, as well as himself, have his attention alive to his case, know
what witnesses are important, and keep a watch upon them, so that their
testimony may not be lost, and upon the movements of his adversary, lest
he should at any time be taken by surprise. It would be an excellent
rule for him, at short stated periods, to make an examination of the
record of every case which he has under his charge. It always operates
disadvantageously to an attorney in the eyes of those who employ him, as
well as the public, when he fails in consequence of some neglect or
oversight. Frequent applications to the court, to relieve him from the
consequences of his inattention, tell badly on his character and
business. He may be able to make very plausible excuses; but the public
take notice, that some men with large business never have occasion to
make such excuses, and that other men with less, are constantly making
them. Every instance of the kind helps to make up such a character. A
young man should be particularly cautious, and dread such occurrences as
highly injurious to his prospects. If he escapes the notice and
animadversion of his constituent, and the legal consequences of his
neglect, by the intervention of the court, or the indulgence of his
opponent, the members of the Bar are lynx-eyed in observing such things.
It may appear like digressing from our subject, to speak of such
qualities as attention, accuracy, and punctuality, but like the minor
morals of common life, they are little rills which at times unite and
form great rivers. A life of dishonor and obscurity, if not ignominy,
has often taken its rise from the fountain of a little habit of
inattention and procrastination. System is everything. It can accomplish
wonders. By this alone, as by a magic talisman, may time be so
economized that business can be attended to and opportunities saved for
study, general reading, exercise, recreation, and society. "A man that
is young in years," says Lord Bacon, "may be old in hours, if he has
lost no time." Hurry and confusion result from the want of system; and
the mind can never be clear when a man's papers and business are in
disorder. It is recorded of the pensionary De Witt, of the United
Provinces, who fell a victim to the fury of the populace in the year
1672, that he did the whole business of the republic, and yet had time
left for relaxation and study in the evenings. When he was asked how he
could possibly bring this to pass, his answer was, that "nothing was so
easy; for that it was only doing one thing at a time, and never putting
off anything till to-morrow that could he done to-day." "This steady and
undissipated attention to one object," remarks Lord Chesterfield, in
relating this anecdote, "is a sure mark of a superior genius." It is of
the highest importance, also, that a lawyer should in early professional
life, cultivate the habit of accuracy. It is a great advantage over
opposing counsel,--a great recommendation in the eyes of intelligent
mercantile and business men. A professional note to a merchant
carelessly written will often of itself produce an unfavorable
impression on his mind; and that impression he may communicate to many
others. The importance of a good handwriting cannot be overrated. A
plain legible hand every man can write who chooses to take the pains. A
good handwriting is a passport to the favor of clients, and to the good
graces of judges, when papers come to be submitted to them. It would be
a good rule for a young lawyer, though at first perhaps irksome and
inconvenient, never to suffer a letter or paper to pass from his hands
with an erasure or interlineation. The time and trouble it may cost at
the outset will be repaid in the end by the habit he will thereby
acquire of transacting his business with care, neatness, and accuracy.
He cannot be faithful to his clients unless he continues to be a hard
student of the learning of his profession. Not merely that he should
thoroughly investigate the law applicable to every case which may be
intrusted to him; though that, besides its paramount necessity to enable
him to meet the responsibility he has assumed to that particular client,
will be the subsidiary means of important progress in his professional
acquisitions. "Let any person," says Mr. Preston, "study one or two
heads of the law fully and minutely, and he will have laid the
foundation or acquired the aptitude for comprehending other heads of
the law."[26] But, besides this, he should pursue the systematic study
of his profession upon some well-matured plan. When admitted to the Bar,
a young man has but just begun, not finished, his legal education. If he
have mastered some of the most general elementary principles, and has
acquired a taste for the study, it is as much as can be expected from
his clerkship. There are few young men who come to the Bar, who cannot
find ample time in the first five or seven years of their novitiate, to
devote to a complete acquisition of the science they profess, if they
truly feel the need of it, and resolve to attain it. The danger is great
that from a faulty preparation,--from not being made to see and
appreciate the depth, extent, and variety of the knowledge they are to
seek, they will mistake the smattering they have acquired for profound
attainments. The anxiety of the young lawyer is a natural one at once to
get business--as much business as he can. Throwing aside his books, he
resorts to the many means at hand of gaining notoriety and attracting
public attention, with a view of bringing clients to his office. Such an
one in time never fails to learn much by his mistakes, but at a sad
expense of character, feeling, and conscience. He at last finds that in
law, as in every branch of knowledge, "a little learning is a dangerous
thing;" that what he does not know falsifies often in its actual
application that which he supposed he certainly did know; and after the
most valuable portion of his life has been frittered away upon objects
unworthy of his ambition, he is too apt to conclude that it is now too
late to redeem his time; he finds that he has lost all relish for
systematic study, and when he is driven to the investigation of
particular questions, is confounded and embarrassed--unable to thread
his way through the mazes of authorities, to reconcile apparently
conflicting cases, or deduce any satisfactory conclusion from them--in
short, he has no greater aptitude, accuracy, and discrimination than
when he set out in the beginning of his studies. No better advice can
be given to a young practitioner, than to confine himself generally to
his office and books, even if this should require self-denial and
privation, to map out for himself a course of regular studies, more or
less extended, according to circumstances, to aim at mastering the works
of the great luminaries of the science, Coke, Fearne, Preston, Powell,
Sugden, and others, not forgetting the maxim, _melius est petere fontes
quam sectari rivulos_, and to investigate for himself the most important
and interesting questions, by an examination and research of the
original authorities. "He that reacheth deepest seeth the amiable and
admirable, secrets of the law,"[27] and thus may the student "proceed in
his reading with alacrity, and set upon and know how to work into with
delight these rough mines of hidden treasure."[28]
It may be allowed here to commend to most serious consideration, the
remarks of one of the most eminent of the profession--Horace Binney--a
gentleman of our own Bar, whose example enforces and illustrates their
value: "There are two very different methods of acquiring a knowledge of
the laws of England, and by each of them, men have succeeded in public
estimation to an almost equal extent. One of them, which may be called
the old way, is a methodical study of the general system of law, and of
its grounds and reasons, beginning with the fundamental law of estates
and tenures, and pursuing the derivative branches in logical succession,
and the collateral subjects in due order; by which the student acquires
a knowledge of principles that rule in all departments of the science,
and learns to feel as much as to know what is in harmony with the system
and what not. The other is, to get an outline of the system, by the aid
of commentaries, and to fill it up by the desultory reading of treatises
and reports, according to the bent of the student, without much shape or
certainty in the knowledge so acquired, until it is given by
investigation in the course of practice. A good deal of law may be put
together by a facile or flexible man, in the second of these modes, and
the public are often satisfied; but the profession itself knows the
first, by its fruits, to be the most effectual way of making a great
lawyer."[29]
Such a course of study as is here recommended, is not the work of a day
or a year. In the meantime let business seek the young attorney; and
though it may come in slowly, and at intervals, and promise in its
character neither fame nor profit, still, if he bears in mind that it is
an important part of his training, that he should understand the
business he does thoroughly, that he should especially cultivate, in
transacting it, habits of neatness, accuracy, punctuality, and despatch,
candor towards his client, and strict honor towards his adversary, it
may be safely prophesied that his business will grow as fast as it is
good for him that it should grow; while he gradually becomes able to
sustain the largest practice, without being bewildered and overwhelmed.
Let him be careful, however, not to settle down into a mere lawyer. To
reach the highest walks of the profession, something more is needed. Let
polite literature be cultivated in hours of relaxation. Let him lose not
his acquaintance with the models of ancient taste and eloquence. He
should study languages, as well from their practical utility in a
country so full of foreigners, as from the mental discipline, and the
rich stores they furnish. He should cultivate a pleasing style, and an
easy and graceful address. It may be true, that in a "court of justice,
the veriest dolt that ever stammered a sentence, would be more attended
to, with a case in point, than Cicero with all his eloquence,
unsupported by authorities,"[30] yet even an argument on a dry point of
law, produces a better impression, secures a more attentive auditor in
the judge, when it is constructed and put together with attention to the
rules of the rhetorical art; when it is delivered, not stammeringly, but
fluently; when facts and principles, drawn from other fields of
knowledge, are invoked to support and adorn it; when voice, and gesture,
and animation, give it all that attraction which earnestness always and
alone imparts. There is great danger that law reading, pursued to the
exclusion of everything else, will cramp and dwarf the mind, shackle it
by the technicalities with which it has become so familiar, and disable
it from taking enlarged and comprehensive views even of topics falling
within its compass as well as of those lying beyond its legitimate
domain. An amusing instance of this is said to have occurred in the
debate in the House of Commons, on the great question as to the right of
the Parliament of Great Britain to tax the Colonies. At the close of the
discussion, in which Fox and Burke, as well as others, had distinguished
themselves, a learned lawyer arose and said that the real point on which
the whole matter turned, had been unaccountably overlooked. In the midst
of deep silence and anxious expectation from all quarters of the House,
he proceeded to show that the lands of the Colonies had been originally
granted by the Crown, and were held _ut de honore_, as of the Manor of
Greenwich, in the county of Kent; and thence he concluded that as the
Manor of Greenwich was represented in Parliament, so the lands of the
North American Colonies (by tenure, a part of the Manor) were
represented by the knights of the shire for Kent.[31]
Let me remark, too, before hastening to another topic more immediately
connected with the duties of active professional life, that the
cultivation of a taste for polite literature has other importance
besides its value as a preparation and qualification for practice and
forensic contests. Nothing is so well adapted to fill up the interstices
of business with rational enjoyment, to make even a solitary life
agreeable, and to smooth pleasantly and honorably the downward path of
age. The mental vigor of one who is fond of reading, other things being
equal, becomes impaired at a much later period of life. The lover of
books has faithful companions and friends, who will never forsake him
under the most adverse circumstances. "As soon as I found," said Sir
Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously
resolved to keep up my habit of non-professional reading; for I had
witnessed so much misery in the last years of many great lawyers, whom I
had known, from their loss of all taste for books, that I regarded their
fate as my warning." Mr. Gibbon was wont to say that he would not
exchange his love of reading for the wealth of the Indies. It is indeed
a fortune, of which the world's reverses can never deprive us. It
fortifies the soul against the calamities of life. It moderates, if it
is not strong enough to govern and control the passions. It favors not
the association of the cup, the dice-box, or the debauch. The atmosphere
of a library is uncongenial with them. It clings to home, nourishes the
domestic affections, and the hopes and consolations of religion.
Another very delicate and often embarrassing question in the relation of
attorney and client is in regard to the subject of compensation for
professional services.
In all countries advanced in civilization, and whose laws and manners
have attained any degree of refinement, there has arisen an order of
advocates devoted to prosecuting or defending the lawsuits of others.
Before the tribunals of Athens, although the party pleaded his own
cause, it was usual to have the oration prepared by one of an order of
men devoted to this business, and to compensate him liberally for his
skill and learning. Many of the orations of Isocrates, which have been
handed down to us, are but private pleadings of this character. He is
said to have received one fee of twenty talents, about eighteen
thousand dollars of our money, for a speech that he wrote for Nicocles,
king of Cyprus. Still, from all that appears, the compensation thus
received was honorary or gratuitous merely. Among the early institutions
of Rome, the relation of patron and client, which existed between the
patrician and plebeian, bound the former to render the latter assistance
and protection in his lawsuits, with no other return than the general
duty, which the client owed to his patron. As every patrician could not
be a sufficiently profound lawyer to resolve all difficulties, which
might arise in the progress of a complex system of government and laws,
though he still might accomplish himself in the art of eloquence, there
arose soon a new order of men, the jurisconsults. They also received no
compensation. On the public days of market, or assembly, the masters of
the art were seen walking in the forum, ready to impart the needful
advice to the meanest of their fellow-citizens, from whose votes on a
future occasion, they might solicit a grateful return. As their years
and honors increased, they seated themselves at home, on a chair or
throne, to expect with patient gravity the visits of their clients, who
at the dawn of day, from the town and country, began to thunder at their
doors.[32] Often, indeed, the patron was able in his own person to
exercise the office both of advocate and counsellor. It was only in the
more glorious, because the more virtuous, period of the republic, that
the relation was sustained upon so honorable a foundation. In the
progress of society, the business of advocating causes became a distinct
profession; and then it was usual to pay a fee in advance, which was
called a gratuity or present. As this was a mere honorary recompense,
the client was under no legal obligation to pay it. But the result
necessarily was, that if the usual present was not given, the advocate
did not consider himself bound in honor to undertake the advocation of
the cause before the courts. Afterwards, Marcus Cincius Alimentus, the
tribune of the people, procured the passage of the law known as the
_Cincian_ law, prohibiting the patron or advocate from receiving any
money or other present for any cause; and annulling all gratuities or
presents made by the client to the patron or advocate. But as no penalty
was prescribed for the breach of the law, it of course became a dead
letter. The Emperor Augustus afterwards re-enacted the Cincian law, and
prescribed penalties for its breach. But towards the end of his reign,
the advocates were again authorized to receive fees or presents from
their clients. The Emperor Tiberius also permitted them to receive such
forced gratuities. This led to the abuse referred to by Tacitus, and
induced the Senate to insist upon the enforcement of the re-enactment of
the Cincian law, or rather a law limiting the amount of the fees of
advocates.[33] Nero revoked the law of Claudian, which was subsequently
re-enacted by the Emperor Trajan, with the additional restriction that
the advocate should not be permitted to receive his fee or gratuity,
until the cause was decided. The younger Pliny mentions a law, which
authorized the advocate, after the pleadings in the cause had been made
and the judgment had been given, to receive the fee, which might be
voluntarily offered by the client, either in money or a promise to pay.
Erskine, in his Institutes of the Law of Scotland, understands the law
in the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit
for the fee of a physician or advocate without a previous agreement for
a specific sum.[34]
The consequences may be best told in the impressive language of the
historian of the Decline and Fall of the Empire: "The noble art, which
had once been preserved as the sacred inheritance of the patricians, was
fallen into the hands of freedmen and plebeians, who, with cunning
rather than with skill, exercised a sordid and pernicious trade. Some of
them procured admittance into families for the purpose of fomenting
differences, of encouraging suits, and of preparing a harvest of gain
for themselves or their brethren. Others, recluse in their chambers,
maintained the dignity of legal professors, by furnishing a rich client
with subtleties to confound the plainest truth, and with arguments to
color the most unjustifiable pretensions. The splendid and popular class
was composed of the advocates, who filled the Forum with the sound of
their turgid and loquacious rhetoric. Careless of fame and of justice,
they are described for the most part, as ignorant and rapacious guides,
who conducted their clients through a maze of expense, of delay, and of
disappointment; from whence, after a tedious series of years, they were
at length dismissed when their patience and fortune were almost
exhausted."[35] Is not this probably the history of the decline of the
profession in all countries from an honorable office to a money-making
trade?
It is the established law of England, that a counsellor or barrister
cannot maintain a suit for his fees.[36] There is in that country a
class of mere attorneys, who attend to legal business out of court, who
bring suits and conduct them up to issue; but who are not allowed to
speak in court. This latter privilege is confined to serjeants and
barristers. Attorneys are regulated by statute, and are subject to many
restrictions; having a rate of fees, settled either by statute or
established usage; and required to be fixed by the taxation of an
officer of the court before a suit can be brought for them. Barristers
are admitted only under the regulations established by the various inns
of court; and the serjeants, who long had the monopoly of the Bar of the
Common Pleas, are appointed by patent from the king. A barrister cannot
be an attorney.[37]
In this country, there is in general no distinction between attorneys
and counsellors. The same persons fulfil the duties of both. Hence no
difference is made between their right to recover compensation for
services in the one capacity or the other.[38] In Pennsylvania, it was
held at one time that an attorney could not recover, without an express
promise, anything beyond the trifling and totally inadequate sum
provided in the fee-bill. That pure and eminent jurist Chief Justice
Tilghman thought that the policy of refusing a legal remedy for anything
beyond that had not been adopted without great consideration.[39] He
stands not alone in the opinion that it has been neither for the honor
nor profit of the Bar to depart from the ancient rule.[40] It has been
departed from in this State, and the early decision overruled, however;
and it must be frankly admitted, that the current of decisions in our
sister States is in the same way.[41]
It is supposed that the ancient rule was artificial in its structure,
and practically unjust,--that it is wholly inconsistent with our ideas
of equality to suppose that the business or profession, by which any one
earns the daily bread of himself or of his family, is so much more
honorable than the business of other members of the community as to
prevent him from receiving a fair compensation for his services on that
account.[42] It has been pronounced ridiculous to attempt to perpetuate
a monstrous legal fiction, by which the hard-working lawyers of our day,
toiling till midnight in their offices, are to be regarded in the eye of
the law in the light of the patrician jurisconsults of ancient Rome,
when
---- dulce diu fuit et solemne, reclusa
Mane domo vigilare, clienti promere jura,--
and who at daybreak received the early visits of their humble and
dependent clients, and pronounced with mysterious brevity the oracles of
the law.[43]
These are arguments which are more plausible than sound: they are
imposing, but not solid. The question really is, what is best for the
people at large,--what will be most likely to secure them a high-minded,
honorable Bar? It is all-important that the profession should have and
deserve that character. A horde of pettifogging, barratrous,
custom-seeking, money-making lawyers, is one of the greatest curses
with which any state or community can be visited. What more likely to
bring about such a result than a decision, which strips the Bar of its
character as a learned profession, on the principle avowed by one court,
that it is now a calling as much as any mechanical art,--or by another,
in effect, that the order of things is in the present condition of
society reversed, and clients are really the _patrons_ of their
attorneys? A more plausible reason is that the client is safer from the
oppression of extortionate counsel, by putting both upon the equal
footing of legal right and obligation. It would appear, however, better
that the parties should make an express agreement before or at the time
of retainer, or that the amount should be left to the justice of the
counsel, and the honor and liberality of the client subsequently. Every
judge, who has ever tried a case between attorney and client, has felt
the delicacy and difficulty of saying what is the measure of just
compensation. It is to be graduated, according to a high legal
authority, with a proper reference to the nature of the business
performed by the counsel for the client, and his standing in his
profession for learning and skill; whereby the value of his services is
enhanced to his client.[44] Is then the standing and character of the
counsel in his profession for learning and skill to be a question of
fact to be determined by the jury in every case in which a lawyer sues
his client? How determined, if necessary to the decision of the
question? Not surely by the crude opinions of the jurors; but by
testimony of members of the same profession on the subject. This never
is done; it would be a very difficult as well as delicate question for a
lawyer to pronounce upon the standing of a professional brother. The
most that can be done is to call gentlemen to say what they would have
considered reasonable for such services, had they been performed by
themselves. Some may testify up to a very high point, from an excusable,
though foolish vanity; others to a very low one, from the despicable,
desire of attracting custom to a cheap shop.[45] No one can ever have
seen such a cause tried without feeling, that the Bar had received by it
an impulse downwards in the eyes of bystanders and the community. The
case is thrown into the jury-box, to be decided at haphazard, according
as the twelve men may chance to think or feel. He, who narrowly watches
such controversies, cannot fail to see that the right of a counsel to
enforce his claim for legal compensation is far from being calculated to
protect the client from oppression and extortion.
It is not worth while, however, to quarrel with the decision. Let us
inquire rather what should be the course of counsel, without regard to
it. He certainly owes it to his profession, as well as himself, that
when the client has the ability, his services should be recompensed; and
that according to a liberal standard.[46] There are many cases, in which
it will be his duty, perhaps more properly his privilege, to work for
nothing. It is to be hoped, that the time will never come, at this or
any other Bar in this country, when a poor man with an honest cause,
though without a fee, cannot obtain the services of honorable counsel,
in the prosecution or defence of his rights. But it must be an
extraordinary--a very peculiar case--that will justify an attorney in
resorting to legal proceedings, to enforce the payment of fees. It is
better that he should be a loser, than have a public contest upon the
subject with a client. The enlightened Bar of Paris, have justly
considered the character of their order involved in such proceedings;
and although by the law of France, an advocate may recover for his fees
by suit, yet they regard it as dishonorable, and those who should
attempt to do it, would be immediately stricken from the roll of
attorneys.[47]
Regard should be had to the general usage of the profession, especially
as to the rates of commission to be charged for the collection of
undefended claims. Except in this class of cases, agreements between
counsel and client that the compensation of the former shall depend upon
final success in the lawsuit--in other words contingent fees--however
common such agreements may be, are of a very dangerous tendency, and to
be declined in all ordinary cases. In making his charge, after the
business committed to him has been completed, as an attorney may well
take into consideration the general ability of his client to pay, so he
may also consider the pecuniary benefit, which may have been derived
from his services. For a poor man, who is unable to pay at all, there
may be a general understanding that the attorney is to be liberally
compensated in case of success. What is objected to, is an agreement to
receive a certain part or proportion of the sum, or subject-matter, in
the event of a recovery, and nothing otherwise.
It is unnecessary to inquire here whether such a contract is void as
champertous, and contrary to public policy. None of the English statutes
on the subject of champerty have been reported as in force here; but it
was once a question whether it was not an offence at common law,
independently altogether, of any statute enactment. Enlightened judges
in several of our sister States have so considered it. "The purchase of
a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its
most odious form; and it ought equally to be condemned on principles of
public policy. It would lead to fraud, oppression, and corruption. As a
sworn minister of the courts of justice, the attorney ought not to be
permitted to avail himself of the knowledge he acquires in his
professional character, to speculate in lawsuits. The precedent would
tend to corrupt the profession, and produce lasting mischief to the
community."[48] "This is not the time nor place," says Chief Justice
Gibson, "to discuss the legality of contingent fees; though it be clear
that if the British statutes of champerty were in force here, such fees
would be prohibited by them. But a contract of the sort is certainly not
to be encouraged by implication, from a questionable usage, nor
established by less than a positive stipulation."[49] A contract to
allow a compensation for services in procuring the passage of a private
Act of Assembly, has been held to be unlawful and void, as against
public policy.[50] "The practice," said Judge Rogers, in delivering the
opinion of the court, "which has generally obtained in this State, to
allow a contingent compensation for legal services, has been a subject
of regret; nor am I aware of any direct decision by which the practice
has received judicial sanction in our courts." The case of _Ex parte
Plitt_,[51] however, recognizes fully the lawfulness of contingent fees,
though in his opinion Judge Kane says: "It is not a practice to be
generally commended, exposing honorable men not unfrequently to
misapprehension and illiberal remark, and giving the apparent sanction
of their example to conduct, which they would be among the foremost to
reprehend. Such contracts may sometimes be necessary in a community such
as that of Pennsylvania has been, and perhaps as it is yet; and when
they have been made in abundant good faith--_uberrima fide_--without
suppression or reserve of fact or exaggeration of apprehended
difficulties, or under influence of any sort or degree; and when the
compensation bargained for is absolutely just and fair, so that the
transaction is characterized throughout by 'all good fidelity to the
client,' the court will hold such contracts to be valid. But it is
unnecessary to say, that such contracts, as they can scarcely be
excepted from the general rule, which denounces as suspicious the
dealings of fiduciaries with those under their protection, must undergo
the most exact and jealous scrutiny before they can expect the judicial
ratification." Finally, the question of law may be considered as at rest
in Pennsylvania by the decision of the Supreme Court in Patten _v._
Wilson,[52] which recognized an agreement between counsel and client to
pay him out of the verdict as an equitable assignment, and gave effect
to it as against an attaching creditor.
It is not, however, with the lawfulness, but with the policy and
morality of the practice, that we are now dealing. Admitting its
legality, is it consistent with that high standard of moral excellence,
which the members of this profession should ever propose to themselves?
Let us look at what would be the results of such a practice, if it
became general. If these are bad, if its tendency is to corrupt and
degrade the character of the profession, then, however confident any man
may feel in his moral power to ward off its evil influences from his own
character and conduct, he should be careful not to encourage and give
countenance to it by his example.
It is one of that class of actions, which in particular instances may be
indifferent; but their morality is to be tested by considering what
would be the consequences of their general prevalence.
It is to be observed, then, that such a contract changes entirely the
relation of counsel, to the cause. It reduces him from his high position
of an officer of the court and a minister of justice, to that of a party
litigating his own claim. Having now a deep personal interest in the
event of the controversy, he will cease to consider himself subject to
the ordinary rules of professional conduct. He is tempted to make
success, at all hazards and by all means, the sole end of his exertions.
He becomes blind to the merits of the case, and would find it difficult
to persuade himself, no matter what state of facts might be developed in
the progress of the proceedings, as to the true character of the
transaction, that it was his duty to retire from it.
It places his client and himself in a new and dangerous relation. They
are no longer attorney and client, but partners. He has now an interest,
which gives him a right to speak as principal, not merely to advise as
to the law, and abide by instructions. It is either unfair to him or
unfair to the client. If he thinks the result doubtful, he throws all
his time, learning, and skill away upon what, in his estimation, is an
uncertain chance. He cannot work with the proper spirit in such a case.
If he believes that the result will be success, he secures in this way a
higher compensation than he is justly entitled to receive.
It is an undue encouragement to litigation. Men, who would not think of
entering on a lawsuit, if they knew that they must compensate their
lawyer whether they win or lose, are ready upon such a contingent
agreement to try their chances with any kind of a claim. It makes the
law more of a lottery than it is.
The worst consequence is yet to be told,--its effect upon, professional
character. It turns lawyers into higglers with their clients. Of course
it is not meant that these are always its actual results; but they are
its inevitable tendencies,--in many instances its practical working. To
drive a favorable bargain with the suitor in the first place, the
difficulties of the case are magnified and multiplied, and advantage
taken of that very confidence, which led him to intrust his interests to
the protection of the advocate.[53] The parties are necessarily not on
an equal footing in making such a bargain. A high sense of honor may
prevent counsel from abusing his position and knowledge; but all have
not such high and nice sense of honor. If our example goes towards
making the practice of agreements for contingent fees general, we assist
in placing such temptations in the way of our professional brethren of
all degrees--the young, the inexperienced, and the unwary, as well as
those whose age and experience have taught them that a lawyer's honor is
his brightest jewel, and to be guarded from being sullied, even by the
breath of suspicion, with the most sedulous care.
A gentleman of the largest experience and highest character for
integrity and learning at the Philadelphia Bar, thus strongly confirms
the views which have been here expressed on the subject of contingent
fees: "And further," says Mr. Price in his concluding advice to
students, at the close of his Essay on Limitation and Lien, "permit me
to advise and earnestly to admonish you, for the preservation of
professional honor and integrity, to avoid the temptation of bargaining
for fees or shares of any estate or other claim, contingent upon a
successful recovery. The practice directly leads to a disturbance of the
peace of society and to an infidelity to the professional obligation
promised to the court, in which is implied an absence of desire or
effort of one in the ministry of the Temple of Justice, to obtain a
success that is not just as well as lawful. It is true, as a just
equivalent for many cases honorably advocated and incompetently paid by
the poor, a compensation may and will be received, the more liberal
because of the ability produced by success; but let it be the result of
no bargain, exacted as a price before the service is rendered, but
rather the grateful return for benefits already conferred. If rigid in
your terms, in protection of the right of the profession to a just and
honorable compensation, let it rather be in the amount of the required
retainer, when it will have its proper influence in the discouragement
of litigation."
A lawyer should avoid, as far as possible, all transactions of business
with his clients, not only in regard to matters in suit in his hands,
but in relation to other matters. He should avoid standing toward them,
either in the relation of borrower or lender. A young practitioner
should especially avoid borrowing of any one. Let him retrench, seek the
humblest employment of drudgery rather than do it; but, if borrow he
must, let it be of any one else than a client. All transactions of
business between attorney and client are looked upon with eyes of
suspicion and disfavor, in courts of justice.
It is a settled doctrine of equity, in England, that an attorney cannot,
while the business is unfinished in which he had been employed, receive
any gift from his client, or bind his client in any mode to make him
greater compensation for his services than he would have a right to
demand if no contract should be made during the relation. If an attorney
accept a gift from one thus connected with him, it may be recovered in a
court of chancery, by the donor or his creditors, should it be necessary
for them to assert a right to it to satisfy their demands. When the
relation of solicitor and client exists, and a security is taken by the
solicitor from his client, the presumption is that the transaction is
unfair; and the onus of proving its fairness is upon the solicitor.[54]
A man ought to be very careful of placing himself in a position to have
any of his transactions regarded in that light. If it should ever come
to be canvassed in court, the bandying of the phrases, fraud and
presumption of fraud, as applied to him, may, and probably will, have an
unfavorable effect on his reputation. Most emphatically should it be
said, let nothing tempt him, not even the knowledge and consent of the
client, to keep the money, which may have come to his hands
professionally, one single instant longer than is absolutely necessary.
The consequences of any difficulty arising upon this head, will be fatal
to his professional character and prospects.
The official oath, to which reference has already more than once been
made, obliges the attorney "to use no falsehood." It seems scarcely
necessary to enforce this topic. Truth in all its simplicity--truth to
the court, client, and adversary--should be indeed the polar star of the
lawyer. The influence of only slight deviations from truth, upon
professional character, is very observable. A man may as well be
detected in a great as a little lie. A single discovery, among
professional brethren, of a failure of truthfulness, makes a man the
object of distrust, subjects him to constant mortification, and soon
this want of confidence extends itself beyond the Bar to those who
employ the Bar. That lawyer's case is truly pitiable, upon the
escutcheon of whose honesty or truth, rests the slightest tarnish.
Let it be remembered and treasured in the heart of every student, that
no man can ever be a truly great lawyer, who is not in every sense of
the word, a good man. A lawyer, without the most sterling integrity, may
shine for a while with meteoric splendor; but his light will soon go out
in blackness of darkness. It is not in every man's power to rise to
eminence by distinguished abilities. It is in every man's power, with
few exceptions, to attain respectability, competence, and usefulness.
The temptations which beset a young man in the outset of his
professional life, especially if he is in absolute dependence upon
business for his subsistence, are very great. The strictest principles
of integrity and honor, are his only safety. Let him begin by swerving
from truth or fairness, in small particulars, he will find his character
gone--whispered away, before he knows it. Such an one may not indeed be
irrecoverably lost; but it will be years before he will be able to
regain a firm foothold. There is no profession, in which moral character
is so soon fixed, as in that of the law; there is none in which it is
subjected to severer scrutiny by the public. It is well, that it is so.
The things we hold dearest on earth,--our fortunes, reputations,
domestic peace, the future of those dearest to us, nay, our liberty and
life itself, we confide to the integrity of our legal counsellors and
advocates. Their character must be not only without a stain, but without
suspicion. From the very commencement of a lawyer's career, let him
cultivate, above all things, truth, simplicity, and candor: they are the
cardinal virtues of a lawyer. Let him always seek to have a clear
understanding of his object: be sure it is honest and right, and then
march directly to it. The covert, indirect, and insidious way of doing
anything, is always the wrong way. It gradually hardens the moral
faculties, renders obtuse the perception of right and wrong in human
actions, weighs everything in the balances of worldly policy, and ends
most generally, in the practical adoption of the vile maxim, "that the
end sanctifies the means." If it be true, as he has said, who, more than
any mere man, before or since his day, understood the depths of human
character, that one even may,
"By telling of it,
Make such a sinner of his memory;
To credit his own lie:"--
we should be careful never to speak or act, without regard to the
_morale_ of our words or actions. A habit may and will grow to be a
second nature.
"That monster, custom, who all sense doth eat,
Of habit's devil, is angel yet in this:
That to the use of actions fair and good
He likewise gives a frock or livery
That aptly is put on."
There is no class of men among whom moral delinquency is more marked and
disgraceful than among lawyers. Among merchants, so many honest men
become involved through misfortune, that the rogue may hope to take
shelter in the crowd, and be screened from observation. Not so the
lawyer. If he continues to seek business, he must find his employment in
lower and still lower grades; and will soon come to verify and
illustrate the remark of Lord Bolingbroke, that "the profession of the
law, in its nature the noblest and most beneficial to mankind, is in its
abuse and abasement, the most sordid and pernicious."
While such are the depths to which a lawyer may sink, look, on the other
hand, at the noble eminence of honor, usefulness, and virtue, to which
he may rise. Where is the profession, which, in this world, holds out
brighter rewards? Genius, indeed, will leave its mark in whatever sphere
it may move. But learning, industry, and integrity, stand nowhere on
safer or higher ground, than in the walks of the law. In all free
countries, it is the avenue not only to wealth, but to political
influence and distinction. In England, a large proportion of the house
of peers, owe their seats and dignities, as well as their possessions,
either to their own professional success, or to that of some one of
their ancestors.[55] In this country, all our Presidents but three, have
been educated to the Bar. Of the men who have distinguished themselves
in the cabinet, in the halls of legislation, and in foreign diplomacy,
how large is the proportion of lawyers! How powerful has always been the
profession in guiding the popular mind, in forming that greatest of all
counterchecks to bad laws and bad administration,--public opinion! It is
the school of eloquence--that, which more than all else besides, has
swayed, still sways, and always will sway, the destinies of free
peoples. Let a man, to the possession of this noble faculty, add the
high character of purity and justice, integrity and honor, and where are
to be found the limits of his moral power over his fellow-citizens?[56]
It is well to read carefully and frequently, the biographies of eminent
lawyers. It is good to rise from the perusal of the studies and labors,
the trials and conflicts, the difficulties and triumphs, of such men, in
the actual battle of life, with the secret feeling of dissatisfaction
with ourselves. Such a sadness in the bosom of a young student, is like
the tears of Thucydides, when he heard Herodotus read his history at the
Olympic Games, and receive the plaudits of assembled Greece. It is the
natural prelude to severer self-denial, to more assiduous study, to more
self-sustaining confidence. Some one has recommended that Middleton's
Life of Cicero should be perused, at frequent intervals, as the vivid
picture of a truly great mind, in the midst of the most stirring scenes,
ever intent upon its own cultivation and advancement, as its only true
glory; and that in effect sketched by his own master hand.[57] The
autobiography of Edward Gibbon will rouse an ambitious student like the
sound of a trumpet. But of English biographies, there is no one, it
occurs to me, better adapted to the purpose mentioned, than the Life of
Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which
unremitted study, upheld by the pure and noble ambition of doing good,
can accomplish in the space of a short life. He was a man of the most
varied knowledge. An extensive and indeed extraordinary acquaintance
with ancient and modern languages, was perhaps his chief accomplishment.
Although he engaged very late in life in the study of the law, such was
his industry and success, that he soon occupied the highest judicial
station, in British India; and the profession are indebted to his pen,
for one of the most beautiful of the elementary treatises, which adorn
the lawyer's library. "In his early days," says his biographer, "he
seems to have entered upon his career of study, with this maxim strongly
impressed upon his mind, that whatever had been attained, was attainable
by him; and it has been remarked, that he never neglected nor overlooked
any opportunity of improving his intellectual faculties, or of acquiring
esteemed accomplishments." Notwithstanding his numerous occupations at
the Bar at home, the onerous duties of his station in India, and his
premature death, before he had attained his forty-eighth year, he has
left behind many learned works, which illustrate Oriental languages and
history, and attest the extent of his labors and acquisitions. Indeed,
it might be regarded as impossible, were we not informed of the regular
allotment which he made of his time to particular occupations, and his
scrupulous adherence to the distribution he had thus made. The moral
character of this eminent man, was no less exemplary. It is the
testimony of one of his contemporaries: "He had more virtues and less
faults, than I ever yet knew in any human being; and the goodness of his
head, admirable as it was, was exceeded by that of his heart." His own
measure of true greatness, humanly speaking, he has left behind him, in
very emphatic words: "If I am asked, who is the greatest man? I answer,
the best. And if I am required to say, who is the best? I reply, he that
has deserved most of his fellow-creatures."[58]
This department of English literature has been recently much enriched
by the labors of the present Lord High Chancellor of England, Lord
Campbell. In America we have a few well written and instructive legal
biographies, among which ought especially to be named, Mr. Wheaton's
Life of William Pinkney, and Professor Parsons' interesting Memoir of
his distinguished father, Chief Justice Parsons. Mr. Binney, at the
close of his honored and honorable life, is paying the debt, which every
man owes to his profession, in animated spirit-stirring sketches of his
great and good contemporaries. How forcibly does this distinguished
jurist illustrate the remark of Cicero in his Treatise on Old Age: "Sed
videtis, ut senectus non modo languida atque iners non sit, verum etiam
sit operosa, et semper agens aliquid et moliens; tale scilicet, quod
cujusque studium in superiore vita fuit." What a noble example might be
held up, in the life and character of Chief Justice Marshall! His
biography, while it will be the record of active patriotism and
humanity, will exhibit a course of arduous self-training, for the great
conflicts of opinion, in which it was his lot afterwards to appear, with
so much lustre. He had not the usual advantages of a collegiate
education. The war of the Revolution, in which his ardent love of
country, and of the principles of rational liberty, led him to enlist,
and where he distinguished himself in the field, materially interfered
with, and retarded his earlier professional studies; yet, the lofty
eminence to which he attained in the opinion of his compatriots, even of
those who could not concur in some of his views of the Constitution, the
enduring monuments of his greatness in the decisions of the Supreme
Court of the United States, bespeak an intellect of the very first
order, mental power naturally vigorous, but brought, by proper exercise,
to a degree of strength that made it tower above the general level of
educated men. His opinions do not abound in displays of learning. His
simplicity, a character so conspicuous in all his writings and
actions--that first and highest characteristic of true greatness--led
him to say and do just what was necessary and proper to the purpose in
hand. Its reflected consequences on his own fame as a scholar, a
statesman, or a jurist, seem never once to have occurred to him. As a
judge, the Old World may be fairly challenged to produce his superior.
His style is a model--simple and masculine. His reasoning--direct,
cogent, demonstrative, advancing with a giant's pace and power, and yet
withal so easy evidently to him, as to show clearly, a mind in the
constant habit of such strong efforts. Though he filled for so many
years the highest judicial position in this country, how much was his
walk like the quiet and unobtrusive step of a private citizen, conscious
of heavy responsibilities, and anxious to fulfil them; but unaware that
the eyes of a nation--of many nations--were upon him! There was around
him none of the glare, which dazzles; but he was clothed in that pure
mellow light of declining evening, upon which we love to look. Where is
the trust to society more sacred, where are duties more important, or
consequences more extended, for individual or social weal or woe, than
those which attach to the office he held? How apt, and aptly said, is
that prayer of Wolsey, when he is informed of the promotion of Sir
Thomas More to the place of Lord Chancellor:
"May he ... do justice,
For truth's sake and his conscience; that his bones,
When he has run his course, and sleeps in blessings,
May have a tomb of orphans' tears wept on him."
It is surely a just subject of national, as well as professional pride,
that an American lawyer can thus, pointing to the example of such a man
as JOHN MARSHALL, hold up his character, his reputation, his usefulness,
his greatness, as incentives to high and honorable ambition; and
especially, his life of unblemished virtue, and single-hearted
purity,--after all, his highest praise, for, as old Shirley says,
"When our souls shall leave this dwelling,
The glory of one fair and virtuous action
Is above all the scutcheons on our tomb."
Is it possible that a being so fearfully and wonderfully made as man,
and animated by a spirit still more fearful and incomprehensible, was
created for the brief term of a few revolutions of the planet he lives
on? Shall his own physical and intellectual productions so long survive
him? The massive piles of Egypt have endured for thousands of years:
fluted column and sculptured architrave have stood for generations,
monuments of his labor and skill. A poem of Homer, an oration of
Demosthenes, an ode of Horace, a letter of Cicero, carry down to the
remotest posterity the memorial of their names. Men found empires,
establish constitutions, promulgate codes of laws; there have been
Solons, Alexanders, Justinians, and Napoleons. There have been those
justly called Fathers of their country, and benefactors of their race.
Have they, too, sunk to become clods of the valley? The mind, which can
look so far before and after--can subdue to its mastery the savages of
the forests, and the fiercer elements of Nature--can stamp the creation
of its genius upon the living canvas, or the almost breathing, speaking
marble--can marshal the invisible vibrations of air into soul-stirring
or soul-subduing music--can pour forth an eloquence of words, with magic
power to lash the passions of many hearts into a raging whirlwind, or
command them with a "peace, be still"--can make a book, a little book,
which shall outlive pyramids and temples, cities and empires--can
perceive and love beauty, in all its forms, and above all, moral beauty,
and God, the infinite perfection of moral beauty,--no, this mind can
never die. Its moral progress must go on in an unending existence, of
which its life of fourscore years on earth is scarce the childhood. Let
us beware then of raising these objects of ambition, wealth, learning,
honor, and influence, worthy though they be, into an undue importance;
nor in the too ardent pursuit of what are only means, lose sight of the
great end of our being.
APPENDIX.
No. I.
COURVOISIER'S CASE[59]
On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and
aged, being in his seventy-third year, was murdered in his bed. He was a
widower, living at No. 14 Norfolk Street, Park Lane, London, a small
house, occupied by only himself and three servants,--Courvoisier, a
young Swiss valet, and two women, a cook and house-maid. The evidence
was of a character to show very clearly that the crime had been
committed by some one in the house; but, Courvoisier's behavior
throughout had been that of an innocent man. Two examinations of his
trunk, by the officers of the police, showed nothing suspicious; rewards
having been offered by the government and family of the deceased; for
the detection of the criminal, a third examination was made of
Courvoisier's box, which resulted in the discovery of a pair of white
cotton gloves, two pocket handkerchiefs, and a shirt-front, stained with
blood. The prisoner's counsel went to the trial with a full persuasion
of his innocence, and conducted the cross-examination closely and
zealously, especially of Sarah Mancer, one of the female domestics, with
a view of showing that there was as much probability that the witness or
the other domestic was the criminal as the prisoner; and that the
police, incited by the hopes of the large rewards offered, had conspired
to fasten the suspicion unjustly on him. At the close of the first day's
proceedings, the prosecutors were placed unexpectedly in possession of a
new and important item of evidence: the discovery of the plate of the
deceased, which was missed, and that it had been left by the prisoner,
at the place where it was found, about a week, perhaps only a very few
days, before the committing of the murder. The parcel contained silver
spoons, forks, a pair of gold auricles, all unquestionably the property
of the unfortunate nobleman; and the only question remaining was,
whether Courvoisier was the person who had so left it. If he were, it
would, of course, grievously for him, increase the _probabilities_ that
it must have been he who subsequently committed the murder, and with the
object of plunder. On the ensuing morning, the person who had made this
discovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of
entertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester
Square), was shown a number of prisoners in the prison-yard, one of whom
was Courvoisier, whom she instantly recognized as the person who had
left the plate with her, and also had formerly lived in her employ.
Courvoisier also suddenly recognized her, and with dismay. The immediate
effect of his panic was the confession of his guilt to his counsel at
the bar of the court, a few minutes afterwards, coupled with his desire,
nevertheless, to be defended to the utmost. His probable object was
simply to prepare his counsel against the forthcoming evidence. The
prisoner was convicted, and afterwards confessed his crime. Mr.
Phillips's conduct of the defence was criticized at the time, in the
columns of the Examiner, but he suffered it to pass in silence. In 1849,
that periodical renewed the accusation originally made, upon which the
following correspondence appeared in the London Times of Nov. 20th,
1849.
TO THE EDITOR OF THE "TIMES."
SIR,--I shall esteem it a great favor if you will allow the accompanying
documents to appear in the "Times." Its universal circulation affords me
an opportunity of annihilating a calumny recently revived, which has for
nine years harassed my friends far more than myself.
I am, &c.,
CHARLES PHILLIPS.
39 Gordon Square.
INNER TEMPLE, Nov. 14, 1849.
MY DEAR PHILLIPS,--It was with pain that I heard yesterday of an
accusation having been revived against you in the "Examiner" newspaper,
respecting alleged dishonorable and most unconscientious conduct on your
part, when defending Courvoisier against the charge of having murdered
Lord William Russell. Considering that you fill a responsible judicial
office, and have to leave behind you a name unsullied by any blot or
stain, I think you ought to lose no time in offering, as I believe you
can truly do, a public and peremptory contradiction to the allegations
in question. The mere circumstances of your having been twice promoted
to judicial office by two lord chancellors, Lord Lyndhurst and Lord
Brougham, since the circulation of the reports to which I am alluding,
and after those reports had been called to the attention of at least one
of those noble and learned lords, is sufficient evidence of the
groundlessness of such reports.
Some time ago I was dining with Lord Denman, when I mentioned to him the
report in question. His lordship immediately stated that he had inquired
into the matter, and found the charge to be utterly unfounded; that he
had spoken on the subject to Mr. Baron Parke, who had sat on the Bench
beside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke
told him he had, for reasons of his own, most carefully watched every
word that you uttered, and assured Lord Denman that your address was
perfectly unexceptionable, and that you made no such statements as were
subsequently attributed to you.
Lord Denman told me that I was at liberty to mention this fact to any
one; and expressed in noble and generous terms his concern at the
existence of such serious and unfounded imputations upon your character
and honor.
Both Lord Denman and Baron Parke are men of as nice a sense of honor and
as high a degree of consciousness as it is possible to conceive; and I
think the testimony of two such distinguished judges ought to be
publicly known, to extinguish every kind of suspicion on the subject.
I write this letter to you spontaneously, and, hoping that you will
forgive the earnestness with which I entreat you to act upon my
suggestion, believe me ever yours sincerely,
SAMUEL WARREN.
MR. COMMISSIONER PHILLIPS.
39 GORDON SQUARE, Nov. 20.
MY DEAR WARREN,--Your truly kind letter induces me to break the
contemptuous silence, with which for nine years I have treated the
calumnies, to which you allude. I am the more induced to this by the
representations of some valued friends, that many honorable minds begin
to believe the slander because of its repetition without receiving a
contradiction. It is with disgust and disdain, however, that even thus
solicited I stoop to notice inventions too abominable, I had hoped, for
any honest man to have believed. The conduct of Lord Denman is in every
respect characteristic of his noble nature. Too just to condemn without
proof, he investigates the facts, and defends the innocent. His
deliberate opinion is valuable indeed, because proceeding from one who
is invaluable himself. My judicial appointments by the noblemen you
mention would have entailed on them a fearful responsibility, had there
been any truth in the accusations of which they must have been
cognizant. I had no interest whatever with either of these chancellors,
save that derived from their knowledge of my character, and their
observation of my conduct. It is now five-and-twenty years ago since
Lord Lyndhurst, when I had no friend here, voluntarily tendered me his
favor and his influence, and his kindness to me remains to this day
unabated. Of Lord Brougham, my ever warm and devoted friend, I forbear
to speak, because words cannot express my affection or my gratitude. His
friendship has soothed some affliction and enhanced every pleasure, and
while memory lasts will remain the proudest of its recollections and the
most precious of its treasures. This is no vain-glorious vaunting. The
unabated kindness of three of the greatest men, who ever adorned the
Bench, ought, in itself, to be a sufficient answer to my traducers. Such
men as these would scarcely have given their countenance to one, who, if
what were said of him were true, deserved their condemnation. I am not
disposed, however, though I might be well warranted in doing so, to
shelter myself under the authority of names, no matter how illustrious.
I give to each and all of these charges a solemn and indignant
contradiction, and I will now proceed to their refutation. The charges
are threefold, and I shall discuss them _seriatim_.
First, I am accused of having retained Courvoisier's brief after having
heard his confession. It is right that I should relate the manner of
that confession, as it has been somewhat misapprehended. Many suppose it
was made to me alone, and made in the prison. I never was in the prison
since I was called to the Bar, and but once before, being invited to see
it by the then sheriffs. So strict is this rule, that the late Mr.
Fauntleroy solicited a consultation there in vain with his other counsel
and myself. It was on the second morning of the trial, just before the
judges entered, that Courvoisier, standing publicly in front of the
dock, solicited an interview with his counsel. My excellent friend and
colleague, Mr. Clarkson, and myself immediately approached him. I beg of
you to mark the presence of Mr. Clarkson, as it will become very
material presently. Up to this morning I believed most firmly in his
innocence, and so did many others as well as myself. "I have sent for
you, gentlemen," said he, "to tell you I committed the murder!" When I
could speak, which was not immediately, I said, "Of course then you are
going to plead guilty?"--"No, sir," was the reply, "I expect you to
defend me to the utmost." We returned to our seats. My position at this
moment was, I believe, without parallel in the annals of the profession.
I at once came to the resolution of abandoning the case, and so I told
my colleague. He strongly and urgently remonstrated against it, but in
vain. At last he suggested our obtaining the opinion of the learned
judge, who was not trying the cause, upon what he considered to be the
professional etiquette under circumstances so embarrassing. In this I
very willingly acquiesced. We obtained an interview, and Mr. Baron
Parke requested to know distinctly whether the prisoner insisted on my
defending him, and, on hearing that he did, said, I was bound to do so,
and to use all fair arguments arising on the evidence. I therefore
retained the brief, and I contend for it, that every argument I used was
a fair commentary on the evidence, though undoubtedly as strong as I
could make them. I believe there is no difference of opinion now in the
profession that this course was right. It was not until after eight
hours' public exertion before the jury that the prisoner confessed; and
to have abandoned him then would have been virtually surrendering him to
death. This is my answer to the first charge.
I am accused, secondly, of having "appealed to Heaven as to my belief in
Courvoisier's innocence," after he had made me acquainted with his
guilt. A grievous accusation! But it is false as it is foul, and carries
its own refutation on its face. It is with difficulty I restrain the
expression of my indignation; but respect for my station forbids me to
characterize this slander as it deserves. It will not bear one moment's
analysis. It is an utter impossibility under the circumstances. What!
appeal to Heaven for its testimony to a lie, and not expect to be
answered by its lightning? What! make such an appeal, conscious that an
honorable colleague sat beside me, whose valued friendship I must have
forever forfeited? But above all and beyond all, and too monstrous for
belief, would I have dared to utter that falsehood in the very presence
of the judge to whom, but the day before, I had confided the reality!
There, upon the Bench above me, sat that time-honored man--that upright
magistrate, pure as his ermine, "narrowly watching" every word I said.
Had I dared to make an appeal so horrible and so impious--had I dared so
to outrage his nature and my own conscience, he would have started from
his seat and withered me with a glance. No, Warren, I never made such an
appeal; it is a malignant untruth, and sure I am, had the person who
coined it but known what had previously occurred, he never would have
uttered from his libel mint so very clumsy and self-proclaiming a
counterfeit. So far for the verisimilitude of this-charge. But I will
not rest either on improbability, or argument, or even denial. I have a
better and a conclusive answer. The trial terminated on Saturday
evening. On Sunday I was shown in a newspaper the passage imputed to me.
I took the paper to court on Monday, and, in the aldermen's room, before
all assembled, after reading the paragraph aloud, I thus addressed the
judges:--"I take the very first opportunity which offers, my lords, of
most respectfully inquiring of you whether I ever used any such
expression?"--"You certainly did not, Phillips," was the reply of the
late lamented Lord Chief Justice, "and I will be your vouchee whenever
you choose to call me,"--"And I," said Mr. Baron Parke, happily still
spared to us, "had a reason, which the Lord Chief Justice did not know,
for watching you narrowly, and he will remember my saying to him, when
you sat down, 'Brother Tindal, did you observe how carefully Phillips
abstained from giving any personal opinion in the case?' To this the
learned Chief Justice instantly assented." This is my answer to the
second charge.
Thirdly, and lastly, I am accused of having endeavored to cast upon the
female servants the guilt, which I knew was attributable to Courvoisier.
You will observe, of course, that the gravamen of this consists in my
having done so after the confession. The answer to this is obvious.
Courvoisier did not confess till Friday: the cross-examination took
place the day before, and so far, therefore, the accusation is disposed
of. But it may be said I did so in my address to the jury. Before
refuting this let me observe upon the disheartening circumstances under
which that address was delivered. At the close of the, to me, most
wretched day on which the confession was made, the prisoner sent me this
astounding message by his solicitor: "Tell Mr. Phillips, my counsel,
that I consider he has my life in his hands." My answer was, that as he
must be present himself, he would have an opportunity of seeing whether
I deserted him or not. I was to speak on the next morning. But what a
night preceded it! Fevered and horror-stricken, I could find no repose.
If I slumbered for a moment, the murderer's form arose before me,
scaring sleep away, now muttering his awful crime, and now shrieking to
me to save his life! I did try to save it. I did everything to save it,
except that which is imputed to me, but that I did not, and I will prove
it. I have since pondered much upon this subject, and I am satisfied
that my original impression was erroneous. I had no right to throw up my
brief, and turn traitor to the wretch, wretch though he was, who had
confided in me. The counsel for a prisoner has no option. The moment he
accepts his brief, every faculty he possesses becomes his client's
property. It is an implied contract between him and the man who trusts
him. Out of the profession this may be a moot point, but it was asserted
and acted on by two illustrious advocates of our own day, even to the
confronting of a king, and, to the regal honor be it spoken, these
dauntless men were afterwards promoted to the highest dignities.
You will ask me here whether I contend on this principle for the right
of doing that of which I am accused, namely, casting the guilt upon the
innocent? I do no such thing; and I deny the imputation altogether. You
will still bear in mind what I have said before, that I scarcely could
have dared to do so under the eye of Baron Parke and in the presence of
Mr. Clarkson. To act so, I must have been insane. But to set this matter
at rest, I have referred to my address as reported in the "Times"--a
journal the fidelity of whose reports was never questioned. You will be
amazed to hear that I not only did not do that of which I am accused;
but that I did the very reverse. Fearing that, nervous and unstrung as I
was, I might do any injustice in the course of a lengthened speech, by
even an ambiguous expression, I find these words reported in the
"Times,"--"Mr. Phillips said the prosecutors were bound to prove the
guilt of the prisoner, not by inference, by reasoning, by such subtile
and refined ingenuity as had been used, but by downright, clear, open,
palpable demonstration. How did they seek to do this? What said Mr.
Adolphus and his witness, Sarah Mancer? And here he would beg the jury
not to suppose for a moment, in the course of the narrative with which
he must trouble them, that he meant to cast the crime upon either of the
female servants. It was not at all necessary to his case to do so. It
was neither his interest, his duty, nor his policy, to do so. God forbid
that any breath of his should send tainted into the world persons
depending for their subsistence on their character." Surely this ought
to be sufficient. I cannot allude, however, to this giant of the press,
whose might can make or unmake a reputation, without gratefully
acknowledging that it never lent its great circulation to these libels.
It had too much justice. The "Morning Chronicle," the "Morning Herald,"
and the "Morning Post," the only journals to which I have access, fully
corroborated the "Times," if, indeed, such a journal needed
corroboration. The "Chronicle" runs thus:--"In the first place, says my
friend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg
to do an act of justice, and to assure you that I do not for a moment
mean to suggest in the whole course of my narrative that this crime may
have been committed by the female servants of the deceased nobleman."
"The Morning Post" runs thus: "Mr. Adolphus called a witness, Sarah
Mancer. But let me do myself justice, and others justice, by now
stating, that in the whole course of my narrative with which I must
trouble you, I beg you would not suppose that I am in the least degree
seeking to cast the crime upon any of the witnesses. God forbid that any
breath of mine should send persons depending on the public for
subsistence into the world with a tainted character." I find the
"Morning Herald" reporting me as follows: "Mr. Adolphus called a witness
named Sarah Mancer. But let me do myself justice and others justice by
now stating that in the whole course of the narrative with which I must
trouble you, I must beg that you will not suppose that I am in the least
degree seeking to cast blame upon any of the witnesses." Can any
disclaimer be more complete? And yet, in the face of this, for nine
successive years has this most unscrupulous of slanderers reiterated his
charge. Not quite three weeks ago he recurs to it in these terms: "How
much worse was the attempt of Mr. Phillips to throw the suspicion of the
murder of Lord William Russell on the innocent female servants, in order
to procure the acquittal of his client Courvoisier, of whose guilt he
was cognizant?" I have read with care the whole report in the "Times" of
that three hours' speech, and I do not find a passage to give this
charge countenance. But surely, surely, in the agitated state in which I
was, had even an ambiguous expression dropped from me, the above broad
disclaimer would have been its efficient antidote.
Such is my answer to the last charge; and, come what will, it shall be
my final answer. No envenomed reiteration, no popular delusion, no
importunity of friendship, shall ever draw from me another syllable. I
shall remain in future, as I have been heretofore, _auditor tantum_. You
know well how strenuously and how repeatedly you pressed me to my
vindication, especially after Lord Denman's important conversation with
you, and you know the stern disdain with which I dissented. The _mens
conscia recti_, a thorough contempt for my traducer, the belief that
truth would in the end prevail, and a self-humiliation at stooping to a
defence, amply sustained me amid the almost national outcry which
calumny had created. Relying doubtless upon this, month after month, for
nine successive years, my accuser has iterated and reiterated his libels
in terms so gross, so vulgar, and so disgraceful, that my most valued
friends thought it my duty to them publicly to refute them. To that
consideration, and to that alone, I have yielded; in deference to
theirs, relinquishing my own opinions. If they suppose, however, that
slander, because answered, will be silenced, they will find themselves
mistaken.
Destroy the web of sophistry--in vain--
The creature's at his dirty work again.
No, no, my dear friend, invention is a libeller's exhaustless capital,
and refutation but supplies the food on which he lives. He may, however,
pursue his vocation undisturbed by me. His libels and my answer are now
before the world, and I leave them to the judgment of all honorable men.
C. PHILLIPS.
No. II.
COURSE OF LEGAL STUDY[60]
_Non multa sed multum_, is the cardinal maxim by which the student of law
should be governed in his readings; at the commencement of his studies--in
the office of his legal preceptor, REPETITION--REPETITION--REPETITION.
Blackstone and Kent, should be read--and read again and again. These
elementary works, with some others of an immediately practical
cast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's
Nisi Prius, Mitford's Equity Pleading--well conned, make up the best
part of office reading. Of course the Acts of Assembly should be gone
over and over again. I do not say that this is all. The plan of reading,
which I am about to recommend, may be begun in the office. Much will
depend upon, what may be termed, the mental temperament of the student
himself, which no one but the immediate preceptor can observe; and he
will be governed accordingly in the selection of works to be placed in
his hands. No lawyer does his duty, who does not frequently examine his
student, not merely as a necessary means of exciting him to attention,
and application; but in order to acquire such an acquaintance with the
character of his pupil's mind--its quickness or slowness--its
concentrativeness or discursiveness--as to be able to form a judgment
whether he requires the curb or the spur. It is an inestimable advantage
to a young man to have a judicious and experienced friend watching
anxiously his progress, and able to direct him, when, if left to
himself, he must wander in darkness and danger. "There be two things,"
says Lord Coke, "to be avoided by him as enemies to learning,
_præpostera lectio_ and _præpropera praxis_." Co. Litt. 70 b.
I prefer presenting a certain order of subjects to be pursued;
observing, however, that it may be somewhat irksome to pursue any one
branch for too long a period unvaried. When that is found to be the
case, the last five heads may be adopted as collateral studies, and
pursued simultaneously with the first three.
These heads or branches are--1. Real Estate and Equity. 2. Practice,
Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and
International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and
Personal Property. 8. The Law of Executors and Administrators.
I. REAL ESTATE AND EQUITY.
As introductory to this head, Lord Hale's History of the Common Law may
be perused with advantage. It was perhaps a mere sketch, intended to be
afterwards filled up and completed. Still, however, it is a work of
authority, as indeed is everything which proceeded from the pen of its
distinguished author. He is correct and accurate to a remarkable degree.
Reeves' History of the English Law is a full and comprehensive history
of the English Law, accurate and judicious as well as full. Lord
Mansfield is said to have advised its author in regard to its plan and
execution. In this work the student is presented with all that is
necessary that he should know of the earliest law-books, Bracton,
Glanville, and Fleta, carefully collected and presented. The history of
the law is separately traced under the reign of each king, and it may be
of advantage to read at the same time some good history or histories of
England parallel with the work. "Reeves' History of the English Law,"
says Chancellor Kent, "contains the best account that we have of the
progress of the law, from the time of the Saxons to the reign of
Elizabeth. It covers the whole ground of the law included in the old
abridgments, and it is a work deserving of the highest commendation. I
am at a loss which most to admire, the full and accurate learning, which
it contains, or the neat, perspicuous, and sometimes elegant style, in
which that learning is conveyed." 1 Comm. 508.
Dalrymple's Essay towards a general History of Feudal Property in Great
Britain, is a brief but learned and philosophical treatise, which may be
followed by Sullivan's Lectures on Feudal Law, a work copious in detail
and exhibiting ably, among other topics, the influence of the feudal
system upon the Modern Law of Tenures. Sir Martin Wright's Introduction
to the Law of Tenures is one of the most accurate and profound of the
essays on this topic; and is worthy of the most attentive study. Craig
de Feudis was thought by Lord Mansfield much preferable to any judicial
work which England had then produced. With these legal treatises on the
feudal system may be read with great advantage, simultaneously,
Robertson's History of Charles V, and Hallam's History of the Middle
Ages.
Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken
up in this connection. It is said that until the publication of
Blackstone's Commentaries, it was regarded as the best elementary book
to be placed in the hands of law students; and we have the authority of
Sir William Blackstone for saying that his method was greatly superior
to that in all the treatises that were then extant: Blackstone's
Analysis, Preface, 6. "His text," says Chancellor Kent, "was weighty,
concise, and nervous, and his illustrations apposite, clear, and
authentic;" though he adds, "But the abolition of the feudal tenures and
the disuse of real actions, have rendered half of his work obsolete," 1
Comm. 509; an objection, in the view we take of legal education, which
should rather recommend the work than otherwise.
At the same time with Finch take Doctor and Student by St. Germain--a
little book which is replete with sound law, and has always been cited
with approbation as an authority.
The Prefaces to the several volumes of Lord Coke's Reports may be read
now with great advantage. They contain much interesting information, and
strongly impregnated as they are with Lord Coke's abundant learning and
love of the law as a science and profession, they form an admirable
introduction to The First Institute, or Lord Coke's Commentary upon
Littleton's Tenures. It would be advisable, I think, to read first in
order the sections of Littleton's Tenures, the original treatise upon
which The Institute was a commentary. After that, no time or pains
should be spared to master completely The First Institute. If the course
now prescribed has been followed, the student will not require to be
reminded, that even those parts, which seem to relate to obsolete heads
of the law, ought to be read and understood. "There is not," says Mr.
Butler, "in the whole of this golden book, a single line which the
student will not in his professional career, find on more than one
occasion eminently useful." There may be some extravagance in this
assertion; but we may nevertheless agree with Mr. Ritso that "there is
no knowledge of this kind, which may not, sooner or later, be in fresh
demand; there is no length of time or change of circumstances, that can
entirely defeat its operation or destroy its intrinsic authority. Like
the old specie withdrawn from circulation upon the introduction of a
new coinage, it has always its inherent value; the ore is still sterling
and may be moulded into modern currency." The opinions of American
lawyers confirm this conclusion. It is well known that C. J. Parsons was
distinguished for his familiarity with the pages of The Institute. It
was Mr. Pinkney's favorite law book; and "his arguments at the Bar,"
says his biographer, Mr. Wheaton, "abounded with perpetual recurrences
to the principles and analysis drawn from this rich mine of common law
learning." Mr. Hoffman, in his Course of Legal Study, has also borne his
testimony to its importance to the American practitioner. Chancellor
Kent seems, as I have intimated in the note, to lean rather against Coke
upon Littleton, as an Institute of Legal Education, although he
acknowledges its value and authority as a book of reference.
It appears to me that after Coke, Preston's Elementary Treatise on
Estates may be read with advantage. He is perhaps unnecessarily diffuse
and tautological; but he enters largely into the reasons of the abstruse
doctrines of which he treats, and his work is calculated to lead the
student to inquire more earnestly into the philosophy of the science.
Fearne's Essay on the Learning of Contingent Remainders, should then be
well studied. If no other book be read over a second time, it must not
be omitted as to this. This volume is occupied in the discussion of
points of great difficulty and abstruseness; yet the style is remarkable
for clearness and perspicuity, and the reasoning is logical and
irresistible. A taste or otherwise, for this book, will test the
student's real progress. After Fearne, take up Sheppard's Touchstone of
Common Assurances--a work generally supposed to have been written by Mr.
Justice Doddridge, and not by William Sheppard, whose name it bears. It
is a most valuable book, one of the most esteemed and authoritative of
the old treatises. There is an edition by Mr. Preston, but I do not
recommend it. Had he annotated in the common way, his labors and
references would no doubt have increased the value of the book; but he
has taken liberties with the text,--subdividing it, occasionally
changing the phraseology, and inserting matter of his own: a course of
proceeding in regard to any work, except a digest or dictionary, to
which I cannot be reconciled. The Touchstone may be followed by Preston
on Abstracts of Title, and Preston's Treatise on Conveyancing.
I think that at this period, as a necessary introduction to the
succeeding studies, some works on Equity Jurisprudence should be taken
in hand; as the Treatise on Equity of which Henry Ballow is the reputed
author. It is the text of Fonblanque's Equity. It had better be read by
itself. Disquisitional notes of great length only confuse and confound
the student; and Mr. Marvin has well said that Fonblanque's Equity
"finally expired under the weight of its own notes." To this add
Jeremy's Treatise on Equity, and Story's Commentaries on Equity
Jurisprudence. The student may then read with advantage, Powell on
Mortgages, with Coventry's Notes. It is to be lamented that Mr.
Coventry did not prepare an original work, instead of overwhelming the
text of Powell with his learned and valuable labors. Chancellor Kent has
remarked, that between the English and American editors it is "somewhat
difficult for the reader to know, without considerable difficulty, upon
what ground he stands." Like the treatise on Equity, it has been nearly
choked to death in the embraces of its annotators. Bacon's Reading upon
the Statute of Uses, is a very profound treatise on that subject, though
evidently left by its great author in an unfinished state. Sanders on
Uses and Trusts, is a very comprehensive and learned work, and the
subject, which may be styled the Metaphysics of the Law, requires close
attention. Hill on Trustees, is a practical treatise, which may here be
read with advantage, as also Lewis on Perpetuities. Sugden on Powers,
has been said to be second to no elementary law book. It is a masterly
elucidation of the subtle doctrines of the law on the subject of Powers,
and is held in the highest estimation. It will perhaps be better
appreciated and understood, if with it, or after it, is taken up
Chance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and
which examines, controverts, and discusses at large many of his
positions. Sugden on Vendors and Purchasers may then follow.
The titles on Leases and Terms for Years, and Rent, in Bacon's
Abridgment, should be studied. These were the works of Chief Baron
Gilbert. After this, Woodfall on Landlord and Tenant.
Roscoe's Treatise on the Law of Actions relating to Real Property, may
be read as a convenient introduction to Cruise on Fines and Recoveries,
and Pigott on Common Recoveries.
To these, in conclusion of this, by far the most important and
fundamental branch of legal studies, may be added, Powell's Essay on the
Learning of Devises, and Jarman on Wills.
It will be remarked, that I have not set down in order, any Report
Books; it is not that I undervalue that kind of study. It appears to me
that in his regular reading, the student should constantly resort to and
examine the principal cases referred to and commented upon by his
authors. In this way, he will read them more intelligently, and they
will be better impressed on his memory. Some reports may be read through
continuously; such are Plowden, Hobart, Vernon, and I certainly think,
Johnson's Chancery Reports should be thus read. Smith's Leading Cases is
an excellent reading-book of this kind. The student of Pennsylvania Law
will do well not to omit Binney's Reports. But I assign no particular
place to this kind of study, because I think it may be taken up and laid
aside at intervals, according to the bent of the student's inclination.
When, in any particular part of his course, he finds his regular reading
drags heavily--he has become fagged and tired of a particular
subject--let him turn aside for a week or two, to some approved and
standard Report Book; it will be useful reading, and he will be able to
return refreshed to his proper course.
It would extend this Appendix too much, if I were to go over the
remaining parts of the prescribed plan, with the same particularity as I
have this first and most important branch. It will be sufficient to
indicate merely the books, and the order in which they may be most
profitably read, under each division.
II. PRACTICE, PLEADING, AND EVIDENCE.
The Introduction to Crompton's Practice gives a full account of the
jurisdiction of the courts, and the steps by which it was arrived at.
This book is sometimes called Sellon's Practice, having been arranged by
Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's
Practice. Stephen on Pleading. Saunders' Reports, with Notes by
Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's
Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's
Equity Pleading. Barton's Historical Treatise of a Suit in Equity.
Newland's Chancery Practice. Gresley on Evidence in Equity.
III. CRIMES AND FORFEITURES.
Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's
Considerations on the Law of Forfeiture for High Treason. The third
part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors.
Chitty on Criminal Law.
IV. NATURAL AND INTERNATIONAL LAW.
Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis.
Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones
Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.
McIntosh's Discourse on the Study of the Law of Nature and Nations.
Wheaton's History of International Law. Wheaton's International Law.
Robinson's Admiralty Reports. Cases in the Supreme Court of the United
States.
V. CONSTITUTIONAL LAW.
The second part of Lord Coke's Institutes. Hallam's Constitutional
History of England. Wynne's Eunomus. De Lolme on the English
Constitution, with Stephens' Introduction and Notes. The Federalist.
Rawle on the Constitution. Story on the Constitution. All the cases
decided in the Supreme Court of the United States, on constitutional
questions, to be read methodically, as far as possible.
VI. CIVIL LAW.
I consider some study of this head as a necessary introduction to a
thorough course on the subjects of Persons and Personal Property, and
the topic, which is so important in the United States, of the Conflict
of Laws.
Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap.
44. Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny's
Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil
Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law.
Domat's Civil Law.
VII. PERSONS AND PERSONAL PROPERTY.
Reeves on the Domestic Relations. Bingham's Law of Infancy and
Coverture. Roper on Husband and Wife. Angel and Ames on Corporations.
Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones
on Bailments. Story on Partnership. Byles on Bills. Story on Promissory
Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traité des
Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict
of Laws.
VIII. EXECUTORS AND ADMINISTRATORS.
Roper on Legacies. Toller on Executors. Williams on Executors. The Law's
Disposal, by Lovelass.
I believe that the course that I have thus sketched, if steadily and
laboriously pursued, will make a very thorough lawyer. There is
certainly nothing in the plan beyond the reach of any young man, with
ordinary industry and application, in a period of from five to seven
years, with a considerable allowance for the interruptions of business
and relaxation. One thing is certain,--there is no royal road to Law,
any more than there is to Geometry. The fruits of study cannot be
gathered without its toil. It seems the order of Providence that there
should be nothing really valuable in the world not gained by labor,
pain, care, or anxiety. In the law, a young man must be the architect of
his own character, as well as of his own fortune. "The profession of the
law," says Mr. Ritso, "is that, of all others, which imposes the most
extensive obligations upon those who have had the confidence to make
choice of it; and indeed there is no other path of life in which the
unassumed superiority of individual merit is more conspicuously
distinguished according to the respective abilities of the parties. The
laurels that grow within these precincts are to be gathered with no
vulgar hands; they resist the unhallowed grasp, like the golden branch
with which the hero of the Æneid threw open the adamantine gates that
led to Elysium."
No. III.
THE ENGLISH BAR.
There are three orders of men at the English Bar: 1. Attorneys, or
Solicitors in Chancery. 2. Barristers; and 3. Serjeants.
1. _Attorneys and Solicitors._--Acts of Parliament have been made for
the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating
and amending several of the laws relating to attorneys and solicitors,
prescribes the conditions of admission as an attorney, the time and mode
of their service under articles; and the oaths to be administered to
them; and authorizes the Judges of the courts of the common law, and the
Master of the Rolls to appoint examiners to examine the fitness and
capacity of all persons applying to be admitted as attorneys or
solicitors; and the certificate, either of the common law or equity
examiners, will be sufficient to entitle a person so examined to
admission in all the courts, examination by both not being necessary. 3
Stewart's Blackst. 29.
2. _Barristers._--The proper legal denomination of this class is
_apprentices_, being the first degree in the law conferred by the inns
of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in
aliqua facultate_. This was probably the meaning of the term primarily;
but as early as the reign of Edward I, it was employed to denote
counsel below the state and degree of serjeant at law; one degree
corresponding to that of bachelor, and the other to that of doctor, in
the universities (Pearce's History of the Inns of Court, 28). Lord Coke
informs us, however, that this degree was anciently preferred to that of
serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad
barras_; and hence arose the cognomen of _barristers_. A barrister must
have kept twelve terms, _i. e._, been three years a member of an inn of
court, before he can be called to the Bar. After a member of an inn of
court has kept twelve terms, he may, without being called, obtain
permission to practice _under the Bar_. This class of practitioners are
called _special pleaders_ or _equity draftsmen_ (according as they
prepare pleadings in the common law or equity courts), or
_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those
who are regularly called, however, may take upon them the causes of all
suitors. Such of the barristers as have a patent of precedence, as
king's counsel, sit within the Bar, with the serjeants; all others are
called _utter_ or _outer barristers_.
3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The
coif or covering to the head worn by this order has also given a
denomination to them. There exists some differences of opinion among
judicial antiquarians as to the origin of the coif. It is supposed by
some to have been invented about the time of Henry III, for the purpose
of concealing the clerical tonsure, and thus disguising those renegade
clerks, who were desirous of eluding the canon, restraining the clergy
from practising as counsel in the secular courts. Hortensius, 349. By
others it is referred to a much earlier period, when the practice in the
higher courts was monopolized by the clergy, and those who were not in
orders invented the coif to conceal the want of clerical tonsure. 1
Campbell's Lives of the Chief Justices, 85, note. There are, indeed,
several circumstances to remind us of the ecclesiastical origin of our
profession in England. The terms--on the festival of St. Hilary (Bishop
of Poictiers, in France, who flourished in the fourth century); Easter;
the Holy Trinity; and of the blessed Michael, the Archangel;--the habits
of the judges, their appearance in court in scarlet, purple, or black,
at particular seasons--the use of the word _brother_ to denote serjeant,
and _laity_ to distinguish the people at large from the profession--the
coif of the serjeants--the bands worn by judges, serjeants, and counsel,
and the gown and hood of graduates of the inns of court,--many of such
circumstances raise a strong presumption that the legal university was
founded before the time of the enactment of the canons in the reign of
King Henry III, compelling the clergy to abandon the practice of the law
in the secular courts (Pearce's History, 22). _Nulles clericus nisi
causidicus_, was the character given of the clergy, soon after the
Conquest, by William of Malmsbury. The judges, therefore, were usually
created out of the sacred order, as was likewise the case among the
Normans; and all the inferior offices were supplied by the lower
clergy, which has occasioned their successors to be styled _clerks_ to
this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were
originally intended as a provision for them, and an order was made in
Parliament, 4 Edw. III, that "the Chancellor should give the livings in
his gift, rated at twenty marks and under, to the King's clerks in
Chancery, the Exchequer, and the two Benches, according to usage, and to
none others." 1 Campbell's Lives of the Chancellors, 170, note.
In the time of Fortescue, sixteen years' continuance in the study of the
law was the period of time considered a necessary qualification in
candidates for the coif. There seems, however, never to have been a
regulation to that effect; and it is certain that persons have often
been advanced to this degree before that time. By the common law no one
can be appointed a judge of the superior courts, who has not attained
the degree of the coif; which degree can only be conferred on a
barrister of one of the four inns of court. As soon as any member of an
inn of court is raised by royal writ to the state, degree, and dignity
of a serjeant-at-law, he ceases to be a member of the society. He
removes to a new hall, and appears for the future in the inn of court as
a guest (Pearce, 52).
The most valuable privilege formerly enjoyed by the serjeants (who,
besides the judges, were limited to fifteen in number), was the monopoly
of the practice in the Court of Common Pleas. A bill was introduced into
Parliament in the year 1755; for the purpose of destroying this
monopoly; but it did not pass. In 1834, a warrant under the sign manual
of the Crown was directed to the Judges of the Common Pleas, commanding
them to open that court to the Bar at large, on the ground that it would
tend to the general dispatch of business. This order was received, and
the court acted accordingly. But in 1839 the matter was brought before
the court by the serjeants, when it was decided that the order was
illegal; Tindal, C. J., declaring that, "from time immemorial, the
serjeants have enjoyed the exclusive privilege of practising, pleading;
and audience in the Court of Common Pleas. Immemorial enjoyment is the
most solid of all titles; and we think the warrant of the Crown can no
more deprive the serjeant, who holds an immemorial office, of the
benefits and privileges which belong to it, than it could alter the
administration of the law within the court itself." (10 Bingh. 571; 6
Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54,
has since extended to all barristers the privileges of serjeants in the
Court of Common Pleas.
FOOTNOTES:
[1] This oath seems first to have been prescribed by the Act of
Assembly, passed August 22d, 1752: "An act for regulating and
establishing fees." (1 Smith's Laws, 218.) It has been copied into the
revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the
addition of the clause to "support the Constitution of the United
States, and the Constitution of this Commonwealth." In England, by the
Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all
attorneys shall be examined by the Justices, and by their discretion,
their names put in the roll, and they that be good and virtuous, and of
good fame, shall be received, and sworn well and truly to serve in their
offices, and especially that they make no suit in a foreign country."
The present oath or affirmation is, that he "will truly and honestly
demean himself in the practice of an attorney, according to the best of
his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6
& 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at
large in 2 Inst. 213; and in the valuable old book, "The Mirror of
Justices," chap. 2, sec. 5, it is said that "every countor is chargeable
by the oath, that he shall do no wrong nor falsity, contrary to his
knowledge, but shall plead for his client the best he can, according to
his understanding."
[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb.
349, 354, 387.
[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J.
Gibson, "is an officer of the court. The terms of the oath, exacted of
him at his admission to the bar, prove him to be so;" "you shall behave
yourself in your _office_ of attorney," &c. Again: it is declared in the
Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended
Constitution of 1838), that "no member of Congress, or other person
holding any _office_ (except _attorney at law_, and in the militia),
shall be a member of either House," &c., which is a direct
constitutional recognition. Prior to the Act of 14th April, 1834, which
expressly required from them an oath to support the Constitution of the
United States and the Constitution of the Commonwealth of Pennsylvania,
attorneys at law were invariably held to be within the provisions of
Art. 6, sect. 3, of the Constitution of the United States, and of Art.
8, of the Constitution of Pennsylvania, requiring all officers,
executive and judicial, to take the oath to support those constitutions
respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were
held to be officers, within the meaning of a similar clause in the
Constitution of New York. "The admission of an attorney, solicitor, or
counsellor," says the opinion in that case, "is a general appointment to
conduct causes before the courts: this station, thus conferred by public
authority, has its peculiar powers, privileges, and duties, and thus
becomes an office in the administration of justice." Leigh's case (1
Munford, 468), in which it was held, that attorneys are not officers,
within the meaning of the statute of Virginia, requiring all persons
holding any office, or place, under the commonwealth, to take an oath
against duelling, does not perhaps conflict with this view. The case of
Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be
found upon examination somewhat at variance--not the decision itself,
but the views expressed by Chancellor Watres in his opinion. The case
simply decided what would seem unquestionable, that the legislature had
a right to prohibit any public officer, judicial or otherwise, from
practising as an attorney or solicitor. The Chancellor said, "He (a
solicitor) can he considered in no other light than that of a private
agent for the citizens of the country, who may employ him to do their
legal business in the courts; and although the law requires of him
certain qualifications, and he receives a license from the judges, yet
his office is no more a public one, than would be any other profession
or trade, which the legislature might choose to subject to similar
regulations, and which is the practice in many other countries. It
cannot be doubted, that a man's trade or profession is his property; and
if a law should be passed avowedly for the purpose of restraining any
member of this bar, who was not a public officer, from exercising his
profession, I should declare such law void." This is to assume high
ground; but the idea that a man's profession or trade cannot be
constitutionally interfered with by legislative enactments, seems
scarcely tenable, and especially, so far as the profession of the law is
concerned, in view of the absolute power with which every court is
clothed, both as to the admission of their attorneys, and forejudging or
striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet
Laws, 354). Courts of record and of general jurisdiction, are vested
with exclusive power to regulate the conduct of their own officers, and
in this respect their decisions are put on the same footing with that
numerous class of cases, which is wisely confided to the legal
discretion and judgment of the court, having jurisdiction over the
subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex
parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306;
Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The
power is one which ought to be exercised with great caution, but which
is, we think, incidental to all courts, and necessary for the
preservation of decorum and for the respectability of the profession."
Marshall C. J. 9 Wheat. 531.
[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
[5] The exact weight of one hundred silver dollars of the old coinage is
85.9375 ounces; of the new coinage, 80 ounces.
[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._
Chambers, 1 Serg. & Rawle, 169.
[7] Court and juries have their respective spheres assigned to them,
within which each is to act and move, without encroaching upon the
jurisdiction or province of the other. In order, then, that jurors as
well as others may know that the direction and decision of the court, on
any question of law arising in the course of the trial of an issue of
fact, is not to be disregarded, and that a verdict given against such
direction, whatever it may be, can never avail anything, unless it be to
occasion additional delay, trouble, and expense to the parties, as also
to the public, the course of the court is to set the verdict aside, and
to order a new trial. And a court, from whose decisions on questions of
law, an appeal lies, by writ of error or otherwise, ought never to
depart from this course; otherwise the party against whom the verdict is
given loses the benefit of such appeal, and of having the question
decided by the Appellate Court, which would be a most unjust and illegal
deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins.
Co. 4 Whart. 67. After two concurring verdicts against the direction of
the court in point of law, a new trial will still be awarded.
Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the
most firmly established might be overturned, because a second jury were
obstinate and rash enough to persevere in the errors of the first, in a
matter confessed by all to be properly within the jurisdiction of the
court; I mean the construction of the law arising from undisputed
facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to
the numerous cases, both in the English and American courts, which
accord with these principles. A judicious selection of the leading ones
is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text
and the note are confined, of course, to civil cases.
[8] Burnet's Life of Sir Matthew Hale, 72.
[9] An attorney is not answerable for every error or mistake; he ought
not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4
Burrows, 2060. He shall be protected, when he acts with good faith, and
to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass.
57. The want of ordinary care and skill in such a person is gross
negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._
Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between
the client and the attorney, the responsibility of the latter is as
great and as strict here as in any country when want of good faith or
attention to the cause is alleged; but in the exercise of the
discretionary power usually confided in this country, and especially
when the client resides at a great distance, an attorney ought not to be
held liable where he has acted honestly and in a way he thought was for
the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. &
Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an
attorney disobeys the lawful instructions of his client, and a loss
ensues, for that loss the attorney is responsible. Gilbert _v._
Williams, 8 Mass. 57. If the holder of a note place it in the hands of
an attorney-at-law, with instructions to bring suit upon it, and the
attorney, acting under the honest impression that he would best promote
the interests of his client by not bringing suit immediately, omits to
do so, and the money is afterwards lost by the insolvency of the maker,
the attorney is liable in an action against him; and the measure of
damages is what might have been recovered from the maker of the note, if
suit had been brought when the note was placed in the hands of the
attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103;
Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control
his attorney in the due and orderly conduct of a suit, and it is his
duty to do what the court would order to be done, though his client
instruct him otherwise. Anon., 1 Wendell, 108.
[10] An attorney is not compelled to appear for any one unless he takes
his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot
determine the relation himself, to his client's detriment. Love _v._
Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as
such, he cannot be displaced by the appointment of another, without an
order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an
attorney has entered his name upon the record, he cannot withdraw it
without leave of the court; and until so withdrawn the service of a
citation upon him in case of appeal is sufficient. United States _v._
Curry, 6 Howard, U. S. Rep. 106.
[11] A counsel, attorney, or solicitor, will in no case be permitted,
even if he should be willing to do so, to divulge any matter which has
been communicated to him in professional confidence. This is not his
privilege, but the privilege of the client, and none but the client can
waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._
Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._
Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of
Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27
Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._
The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be
found in some of these cases that though the counsel declined to be
engaged for the client, yet the facts communicated were held
confidential; the only exception recognized being where a purpose to
perpetrate _in futuro_ a felony or an action _malum in se_ was
disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In
Moore _v._ Bray, 10 Barr, 519, it was held that communications of the
object, for which an assignment of a mortgage was made, to a counsel
concerned for the assignee, were privileged; although no question then
arose as to the object of the assignment, and the counsel considered the
communication in the light of a casual conversation. "The circle of
protection," said Bell, J., "is not so narrow as to exclude
communications a professional person may deem unimportant to the
controversy, or the briefest and lightest talk the client may choose to
indulge with his legal adviser, provided he regards him as such at the
moment. To found a distinction on such a ground would be to measure the
safety of the confiding party by the extent of his intelligence and
knowledge, and to expose to betrayal those very anxieties, which prompt
those in difficulty, to seek the ear of him in whom they trust in season
and out of season."
[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says
Lord Campbell, "with the specious but impracticable rule of never
pleading except on the right side, which would make the counsel to
decide without knowing either facts or law, and would put an end to the
administration of justice." 1 Lord Campbell's Lives of the Chief
Justices, 412. There is the following curious note by Baxter in Burnet's
Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was
much prejudiced against lawyers because the worst causes find their
advocates; but that he and Mr. Selden had convinced him of the reasons
of it to his satisfaction; and that he did by acquaintance with them
believe that there were as many honest men among lawyers,
proportionably, as among any profession of men in England (not excepting
bishops or divines)." 1 Hale's Works, 106.
[13] 2 Wynne's Eunomus, 557.
[14] "Although Serjeants have a monopoly of practice in the Common
Pleas, they have a right to practice, and do practice, at this bar; and
if we were to assign one of them as counsel, and he were to refuse to
act, we should make bold to commit him to prison." Per C. J. Hale. 2
Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev.
129; 3 Keble, 424, 439, 440.
[15] Let the circumstances against a prisoner be ever so atrocious, it
is still the duty of the advocate to see that his client is convicted
according to those rules and forms which the wisdom of the legislature
have established, as the best protection of the liberty and security of
the subject. Professor Christian's note to 4 Blackst. Com. 356. From the
moment that any advocate can be permitted to say that he _will_ or will
_not_ stand between the crown and the subject arraigned in the court
where he daily sits to practise, from that moment the liberties of
England are at an end. If the advocate refuses to defend from what _he
may_ think of the charge or of the defence, he assumes the character of
the judge, nay, he assumes it before the hour of judgment; and in
proportion to his rank and reputation, puts the heavy influence of
perhaps a mistaken opinion into the scale against the accused, in whose
favor the benevolent principle of English law makes all presumptions,
and which commands the very judge to be his counsel. Lord Erskine, 6
Campbell's Lives of the Chancellors, 361.
[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.
[17] "There are many who know not how to defend their causes in
judgment, and there are many who do, and therefore pleaders are
necessary; so that that which the plaintiffs or actors cannot or know
not how to do by themselves, they may do by their serjeants, attorneys,
or friends." Mirr. of Justices, ch. 2, sec. v.
[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit
furnishes his attorney with a plea which the attorney finds to be false,
so that he cannot plead it for _the sake of_ his conscience, the
attorney may plead in this case, _quod non fuit veraciter informatus_,
and in so doing he does his duty. Jenkins, 52.
[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
[20] Law Magazine, February, 1850, May, 1854. Law Review, February,
1850. Several articles on the subject, taken from the English press, are
to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have
added, in an appendix, Mr. Phillips's vindication of himself from these
charges, in his correspondence with his friend Mr. Warren, preceded by a
brief statement of the case.
[21] The civil law will not allow a man to be convicted on his bare
confession, not corroborated by evidence of his guilt; because there may
be circumstances which may induce an innocent man to accuse himself.
Bowyer's Commentaries, 355, note. Upon a simple and plain confession,
the court hath nothing to do but to award judgment; but it is usually
very backward in receiving and recording such confession out of
tenderness to the life of the subject; and will generally advise the
prisoner to retract it and plead to the indictment. 4 Blackst. Comm.
329. 2 Hale, P. C. 225.
[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.
[23] In enumerating the things to which every pleader of others' causes
ought to have a regard, the Mirror of Justices says, "That he put no
false dilatories into court, nor false witnesses, nor move or offer any
false corruptive deceits, leasings, or false lies, nor consent to any
such, but truly maintain his client's cause, so that it fail not by any
negligence or default in him, nor by any threatening, hurt, or villany,
disturb the judge, plaintiff, serjeant, or any other in court, whereby
he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is
indeed in the very words of the serjeant's oath, and Lord Coke remarks
that it consists of four parts: "1. That he shall well and truly serve
the king's people, as one of the serjeants at law. 2. That he shall
truly counsel them that he shall be retained with, after his cunning. 3.
That he shall not defer, wait, or delay their causes willingly for
covetousness of money, or other thing that may tend to his profit. 4.
That he shall give due attendance accordingly." 2 Inst. 214.
[24] A pleader is suspendable when he is attainted to have received fees
of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.
[25] "It is impossible to state a case, in which a witness should be
treated roughly. If you attempt it, every one feels offended, in the
person of the witness. You make your work more difficult; the witness
shuts himself up, considers you as his enemy, and stands upon his
defence: whereas, an open countenance, and an easy insinuating address,
unlocks his breast, and disarms him of his caution, if he has any."
Deinology, 228. This admirable little work, which has been attributed to
the pen of Lord Erskine, cannot be too highly recommended to the student
of law. The postscript, which suggests considerations on the _viva voce_
examination of witnesses, is particularly worthy a very attentive
perusal.
[26] Preston on Estates, 2.
[27] Co. Litt. 71 _a._
[28] Ibid. 6 _a._
[29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. xiv; The
Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the
attention of the student a curious and interesting work, entitled "An
introduction to the science of the law, showing the advantages of a
legal education, grounded on the learning of Lord Coke's Commentaries,
upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few
works of celebrity, in regard to which such opposite opinions have been
maintained as the Commentaries of Sir William Blackstone. While some
have expressed the most enthusiastic admiration, there have been others,
like Mr. Austin, Professor of General Jurisprudence, in the University
of London (Outlines of Lectures, 63), who have dealt in language of
unsparing condemnation and contempt. Mr. Ritso thinks that "the error
was in adopting them as an institute for the instruction and education
of professional students, which was evidently no part of Blackstone's
plan, nor within the scope of his engagement." In this point of view, he
objects, that "he represents everything rather for effect, than with a
view to demonstrate. Like the gnomon upon the sun-dial, he takes no
account of any hours, but the serene:
Et quæ,
Desperat tractata nitescere posse, relinquit.
In a professional point of view, this solicitude rather to captivate the
imagination of the student, than to exercise and discipline the
understanding, is equally unprofitable and inconvenient. It puts him off
with ornamental illustration, instead of solid argument, and leads to a
sort of half information, which is often much worse than no information
at all upon the subject." There is some force in these remarks; yet, too
many great lawyers have begun their studies with Blackstone, to leave
any doubt that it is a proper first book. It paves the way for more
repulsive, though more recondite and valuable works. I very much fear,
indeed, that a disposition has existed of late years to repudiate Coke
upon Littleton entirely. Chancellor Kent has shown his leaning in that
direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr.
Butler's opinion: "He is the best lawyer, and will succeed best in his
profession, who best understands Coke upon Littleton." It ought not,
perhaps, to be placed in the hands of the student until he has made some
progress in his reading of other works: but sooner or later, he should
aim to master it. Lord Coke was, himself, deeply imbued with the love of
his profession, and he is able to transfuse his own spirit into his
readers. His method may be objectionable in some respects; but I cannot
help thinking that the life of his work is gone when it is hacked to
pieces, and then attempted to be fitted together again upon another
man's skeleton. I have ventured to add in the Appendix (No. II), a
sketch of such a course of reading, of not very extensive compass, as
may with advantage be pursued by every young man after his admission to
the Bar.
[30] Maddock's Chancery. Preface.
[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that
the person here mentioned was George Hardinge--a Welsh judge and nephew
of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord
Mahon, it was on the 15th of March, 1782, in the debate on a motion of
Sir John Rouse, of want of confidence in the ministry after the
surrender of Lord Cornwallis. He ascribes the remark to Sir James
Marriott, but says that, although he was the assertor of this singular
argument, the honor of its original invention seems rather to belong to
Mr. Hardinge. 5 Mahon's Hist. 139.
[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.
[33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæ
ejus æmuli. Nam cuncta legum et magistratuum munia in se trahens
Princeps, materiam prædandi patefecerat. Nec quidquam publicæ mercis tam
venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques
Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita
prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C.
Silio consule designato, cujus de potentia et exitio in tempore
memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur
antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit.
Annul. 1. 11, c. 5.
[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While
expressing, as will be seen presently, the opinion that authority as
well as sound policy would have led me to a different conclusion from
that at which Chancellor Walworth arrived, it is proper to acknowledge
that I have drawn largely upon his learned judgment in this case, and at
the same time to express the high admiration I entertain for the ability
with which the last of the New York Chancellors illustrated the chair
where such truly great men had sat before him.
[35] Gibbon's Decline and Fall, c. xvii.
[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;
Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's
note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law.
Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1,
s. 42, 43, 44. Boucher D'Asyis, Hist. Abrégé de L'Order des Avocats, c.
iv. See also the commencement of the Dialogue des Avocats du Parl. de
Paris, by Loisil, which contains curious particulars throughout
respecting the ancient French Bar. An amusing anecdote is related of
Pasquier, the famous French advocate. In 1583, while he was attending
the assizes (_les grands jours_) at Troyes, he sat for his portrait, and
after the painter had finished the likeness, which Pasquier had not yet
examined, he asked him to represent him with a book in his hand. The
painter said that it was too late, as the picture was completed without
hands. Upon this the witty lawyer immediately wrote the following lines
as a motto for the portrait:
Nulla hic Pascasio manus est: Lex Cincia quippe
Causidicos nulla sanxit habere manus.
Forsyth's Hortensius, 424.
[37] The reader will find in the Appendix, No. III, an account of the
different orders of the English Bar.
[38] In some States, the professions of attorney and counsellor at law
are not distinct; the same person conducts the cause in all its stages;
and it has not been considered that his authority ceases when judgment
is obtained. The attorney is in some degree the agent as well as the
attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16
Serg. & Rawle, 368.
[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.
[40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35.
"I shall be sorry to see the honorary character of the fees of
barristers and physicians done away with. Though it seems to be a
shadowy distinction, yet I believe it to be beneficial in effect. It
contributes to preserve the idea of profession, of a class which belongs
to the public, in the employment and remuneration of which no law
interferes, but the citizen acts as he likes, '_foro conscientiæ_.'"
Coleridge's Table Talk, vol. 2.
[41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4
Watts, 33. In New Jersey, an advocate's fees are not recoverable at law.
Shaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van
Alter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of
decisions is in the opposite direction, will be seen by consulting
Stevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._
Washington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127;
Bayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord,
149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch.
Rep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21
Vermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E.
D. Smith, 318.
[42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster
_v._ Jack, 4 Watts, 337.
[43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451.
[44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a
confidential employment is a legitimate subject of compensation, and in
proportion to the magnitude of the interests committed to the agent.
Kentucky Bank _v._ Combs, 7 Barr, 543.
[45] That evidence of usage is admissible to show what is the rule of
compensation for similar services to those sued for, see Vilas _v._
Downer, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94.
[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5,
"four things are to be regarded: 1. The greatness of the cause. 2. The
pains of the serjeant. 3. His worth, as his learning, eloquence, and
gift. 4. The usage of the court."
[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs
anciens arrêts donnent aux avocats une action pour le paiement de leurs
honoraires: mais, suivant la dernière jurisprudence du Parlement de
Paris et la discipline actuelle du barreau, ou ne souffre point qu'un
avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il
est possible, que l'usage ne soit qu'un préjugé; mais ce préjugé a eu
une salutaire influence sur la splendeur du barreau Francais. On ne
prétend pas, en France, qu'un avocat n'a pas droit à un honoraire pour
prix de ses travaux. Jamais on n'a refusé d'en allouer à ceux qui en ont
réclamé. Dans plusieurs barreaux, ces réclamations sont même tolerées.
Mais le barreau de Paris s'est montré plus sévère; et non seulement
autrefois, mais encore aujourd'hui, tout avocat à la cour qui
actionnerait un client en paiement d'honoraires serait rayé du tableau.
Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce
que le client veut bien assigner pour prix aux services de son avocat,
en raison de ses peines et de l'importance des travaux. Ibid. 698.
Les honoraires dus par les parties aux avocats chargés du soin de leur
défense, ne doivent pas être restraints à la taxe établie par le tarif.
Cette taxe a pour objet seulement de fixer la somme due par la partie
qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui
doit être faite selon l'importance et la difficulté du travail. Ibid.
699.
[48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48.
[49] Foster _v._ Jack, 4 Watts, 338, 339.
[50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The
Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That
champerty is an offence at common law, and that contracts of that
character, between client and counsel, are void on that ground, and as
against public policy, will be found to have been maintained in Rust
_v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's
Heirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._
Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis
_v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott
_v._ McClelland, 17 Alabama, 206. The cases on the other side, are,
Thallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._
Trent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle
_v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major
_v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa,
472. In New York, by the Revised Statutes, it was made an offence,
punishable by fine or imprisonment, and removal from the Bar, for any
attorney, counsellor, or solicitor, directly or indirectly to buy, or be
in any manner interested in buying, or to advance or procure money to be
advanced upon anything in action, with the intent, or for the purpose of
bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure
appears to have changed the law in this respect, and to enable parties
to make such bargains as they please with their attorneys. Code of
Procedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142;
Benedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.),
275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to
be a statute, which provides that any one not a party, receiving as
compensation for services in prosecuting or defending a suit the whole
or part of the subject-matter in suit, is guilty of champerty, and it
has been held that this statute extends to attorneys. Davis _v._
Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be
clearly within the statutes of champerty and maintenance. Penrice _v._
Parker, Rep. Temp. Finch, 75.
[51] 2 Wallace, Jr. Rep. 452.
[52] 10 Casey, 299.
[53] Paciscendi quidem ille piraticus mos; et imponentium periculis
pretia, procul abominanda negotiatio, etiam a mediocriter improbis
aberit: cum præsertim bonos homines bonasque causas tuenti non sit
metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib.
xii, c. 7.
[54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199;
Walmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313.
The doctrine has been fully followed in this country; Stockton _v._
Ford, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell
_v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._
J. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles
_v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb
_v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308;
Jennings _v._ McConnel, 17 Illinois, 148.
An agreement made by a client with his counsel, after the latter had
been employed in a particular business, by which the original contract
is varied, and greater compensation is secured to the counsel than may
have been agreed upon when first retained, is invalid and cannot be
enforced. Lecatt _v._ Sallee, 3 Porter, 115.
[55] In Foss's Grandeur of the Law, eighty-two existing peerages are
stated to have sprung from the law. That was in 1843.
[56] Non merum, si ob hanc facultatem homines sæpe etiam non nobiles
consulatum consecuti sunt: præsertim cum hæc eadem res plurimas gratias,
firmissimas amicitias, maxima studia pariat. Cic. pro Muræna.
[57] Vivit, vivetque per omnium sæculorum memoriam. Dumque hoc vel forte
vel providentia vel utcunque constitutum rerum naturæ corpus, quod ille
pæne solus Romanorum animo vidit, ingenio complexus est, eloquentia
illuminavit, manebit incolume: comitem ævi sui laudem Ciceronis trahet;
omnisque posteritas illius in te scripta mirabitur, tuum in eum factum
execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere.
L. 2.
[58] Sir William Jones adds to his other claims upon our admiration
that of a decided partiality to the character and fortunes of our
American Republics. "The sum of my opinion is," says he, "that while all
the American people understand the modern art of war, and learn
jurisprudence by serving in rotation upon grand and petit juries, their
liberty is secure, and they will certainly flourish most when their
public affairs are best administered by their Senate and Councils. I
cannot think a monarchy or an oligarchy _stronger_ in substance,
whatever they may be in appearance, than a popular government.... I
shall not die in peace without visiting your United States for a few
months before the close of the eighteenth century. May I find wisdom and
goodness in your Senate, arms and judicature, which are power, in your
commons, and the blessings of wealth and peace equally distributed among
all." 2 Wynne's Eunomus, 359, note.
[59] Note at p. 47.
[60] Note at p. 75.
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