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.