{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_22359/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_22359","id":"gutenberg_22359","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/22359","summary":null,"tags":["Category: Law & Criminology","Category: Philosophy & Ethics","Legal ethics -- United States"],"text":"E-text prepared by Marilynda Fraser-Cunliffe, Stephen Blundell, and the\nProject Gutenberg Online Distributed Proofreading Team\n(http://www.pgdp.net) from page images generously made available by the\nMaking of America Books Collection of the University of Michigan's Digital\nLibrary Production Service (http://www.umdl.umich.edu/)\n\n\n\nNote: Images of the original pages are available through\n      the Making of America Books Collection of the\n      University of Michigan's Digital Library Production\n      Service. See\n      http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001\n\n\nTranscriber's note:\n\n      Minor typographical errors have been corrected without note.\n\n      The oe ligature has been transcribed as [oe].\n\n      A table of contents, though not present in the original, has been\n      provided below:\n\n         PREFACE.\n         INTRODUCTION.\n         PROFESSIONAL ETHICS.\n         APPENDIX.\n           No. I.\n           No. II.\n           No. III.\n\n\n\n\n\nPROFESSIONAL ETHICS.\n\nAN ESSAY ON PROFESSIONAL ETHICS.\n\nby\n\nGEORGE SHARSWOOD.\n\n\n Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil\n sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque\n ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi\n conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS\n HAEC ARMA, NON MILITI.\n                                                    QUINCT. DE INST. OR.\n\n\n\n\n\n\nSecond Edition.\n\nPhiladelphia:\nT. & J. W. Johnson & Co.,\nLaw Booksellers and Publishers,\nNo. 535 Chestnut Street.\n1860.\n\nEntered, according to Act of Congress, in the year 1860,\nby T. & J. W. Johnson & Co.,\nin the Clerk's Office of the District Court for the Eastern District\nof Penn'a.\n\nC. Sherman & Son, Printers,\nS. W. Cor. Seventh and Cherry Streets, Philadelphia.\n\n\n\n\n                                   TO\n\n                           MY HONORED MASTER,\n\n                      JOSEPH R. INGERSOLL, LL.D.,\n\n                                INSCRIBED\n\n                                  AS A\n\n                              TESTIMONY OF\n\n                         RESPECT AND GRATITUDE.\n\n\n\n\nPREFACE.\n\n\nThe following Essay was originally published under the title of \"A\nCompend of Lectures on the Aims and Duties of the Profession of the Law,\ndelivered before the Law Class of the University of Pennsylvania.\" A\nportion of it had been read by the author as an Introductory Lecture at\nthe opening of the Fifth Session of the Law Department of that\nInstitution, October 2d, 1854. The young gentlemen, alumni, and students\nof the school, who were present on that occasion, requested a copy for\npublication, in order that each of them might possess a memento of their\nconnection with the Institution. The author preferred to publish the\nentire Compend than merely a part of it. He hesitated much in doing so,\nbecause the questions discussed are difficult, and opinions upon them\nvariant, and he could scarcely hope that he had in every case succeeded\nin just discrimination. A review of the matter now, when a second\nedition has been called for, has suggested, however, no important change\nin the principles advanced, though a few additions have been made, some\ninaccuracies corrected, and an introduction upon the importance of the\nprofession, in a public point of view, prefixed.\n\n                                                             G. S.\n\n\n\n\nINTRODUCTION.\n\n\nThe dignity and importance of the Profession of the Law, in a public\npoint of view, can hardly be over-estimated. It is in its relation to\nsociety at large that it is proposed to consider it. This may be done by\nshowing its influence upon legislation and jurisprudence. These are the\nright and left hands of government in carrying out the great purposes of\nsociety. By legislation is meant the making of law--its primary\nenactment or subsequent alteration. Jurisprudence is the science of what\nthe law is or means, and its practical application to cases as they\narise. The province of legislation is _jus dare_--of jurisprudence,\n_jus dicere_. The latter is entirely in the hands of lawyers as a\nbody--the former almost entirely.\n\nLegislation is indeed a nobler work than even jurisprudence. It is the\nnoblest work in which the intellectual powers of man can be engaged, as\nit resembles most nearly the work of the Deity. It is employed as well\nin determining what is right or wrong in itself--the due proportion of\ninjuries and their remedies or punishments--as in enforcing what is\nuseful and expedient. How wide the scope of such a work! The power of\nsociety over its individual members, or, in other words, sovereignty,\nwhich is practically vested in the legislature, is a type of the Divine\npower which rules the physical and moral universe. \"There is one\nLawgiver,\" says the Apostle James. Not that the Supreme Being is the\nsole universal lawgiver in the sense of a creator of law, whose will\nalone determines the boundaries of right and wrong. God is the creator\nof the beings who are the subjects of law. He is the author of law--the\none lawgiver--in the same sense that he, who first discovered a plain\nfigure, may be said to be the author of all theorems, which may be\npredicated of it. He who first called attention to the curious curve,\nmade by a point in the periphery of a wheel as it turns on the ground,\nis in a certain sense the discoverer of all the truths, which may be\nmathematically demonstrated in respect to it.\n\nLaw in its true sense is not the work of mere will--not an act of\nintellectual caprice. It is a severe and necessary deduction from the\nrelations of things. The Divine legislator sees and knows these\nrelations perfectly. He can draw no wrong deduction from them. He can\nmake no mistake. Whatever laws have certainly emanated from Him are\ncertainly right. This is the sense in which it is true that \"there is\none Lawgiver:\" all others but attempt the work; He alone is competent to\nperform it. There is no mathematical certainty in our reasoning on moral\nas there is on physical relations. We know that the three angles of a\ntriangle are equal to two right angles with an assurance we can never\nhave in regard to any moral truth whatever. The Divine law is a\ndeduction necessarily and mathematically certain as much so as any truth\nin geometry. Human law can aim only at such a probable deduction as\nresults from a finite and imperfect knowledge.\n\nThe system of law delivered by Moses to the Jews deserves, therefore,\nthe most careful study at the hands of all who believe him to have been\na divinely commissioned lawgiver. These laws were not intended for any\nother people than the Israelites; they were adapted to their\ncircumstances, climate, country, neighbors, to the period of the world\nwhen they were promulgated, and during which they were to prevail. They\nwere certainly not meant as a model for any other form of government,\nfor any other people, or for any other time. Many laws are to be found\nthere which are unnecessary and superfluous if applied elsewhere. Many\nactions, innocent in themselves, are prohibited. All the _mala\nprohibita_ are not _mala in se_. But one thing is as clear as a sunbeam,\nand that is a very important light to the student of Ethics; if God was\nthe author of these laws, nothing morally wrong was commanded or\nallowed by them. When it was said of the Jews through the prophet, \"I\ngave them statutes which were not good,\" it cannot mean not morally\ngood; laws which it would be sinful in them to obey. The word in the\noriginal is not the word appropriated in that language to right,\nconformity to rule, but to goodness in its most general sense. Good\nstatutes mean wise and expedient statutes. By no process can the logical\nmind be brought to the conclusion that the perfectly wise and good\nlawgiver, in framing a code of laws for any people, would impose as a\npunishment \"for the hardness of their hearts,\" a penalty, submission to\nwhich would itself be punishable as a sin against the law of nature. He\nmight command or allow as such punishment what in itself was inexpedient\nand injurious to them, and which upon the promulgation of a new law\nrepealing the old and prohibiting what it allowed, would become by the\nsanction of the same lawgiver thenceforth universally _malum\nprohibitum_. The authority of God as a lawgiver is certainly not\nconfined to a mere declaration of what is right or wrong by the law of\nNature.\n\nThere can be no merely arbitrary laws. It is necessary to bear in mind\nthat we are now considering the province of the legislator, who ought to\nenact no law without an end. \"Civil legislative power,\" says Rutherforth\n(B. II, c. vi, s. 10), \"is not in the strict sense of the word an\nabsolute power of restraining or altering the rights of the subjects: it\nis limited in its own nature to its proper objects, to those rights only\nin which the common good of the society or of its several parts requires\nsome restraint or alteration. So that whenever we call the civil\nlegislative power, either of society in general or of a particular\nlegislative body within any society, an absolute legislative power, we\ncan only mean that it has no external check upon it in fact; for all\ncivil legislative power is in its own nature under an internal check of\nright: it is a power of restraining or altering the rights of the\nsubjects for the purpose of advancing or securing the general good, and\nnot of restraining or altering them for any purpose whatever, and much\nless for no purpose at all.\" There are, therefore, no arbitrary laws\nwhich fulfil the end of law. Doubtless the true objects of society and\ngovernment may be mistaken by him who sets up to be law-maker, or if\nthose objects are properly appreciated, the means for advancing them may\nbe mistaken. It is not wonderful that in a matter which demands the\nhighest wisdom, many should try and fail.\n\nIt becomes important to inquire what are the true ends of society and\ngovernment? Man is a gregarious animal--a social being. He may exist in\nsolitude, but he cannot enjoy life: he cannot perfect his nature. Those\nwho have watched and studied closely the habits of those irrational\nanimals, who live in communities, as the ant, the bee, and the beaver,\nhave observed not only a settled system and subordination, but the\nexistence of some wonderful faculty, like articulate speech, by which\ncommunication takes place from one to another; a power essential to\norder. Man, the highest social animal in the scale of earthly being,\nhas also the noblest faculty of communication.\n\nThe final cause--the reason why man was made a social being--is that\nsociety was necessary to the perfection of his physical, intellectual,\nand moral powers, in order to give the fullest return to the labor of\nhis hands and to secure the greatest advances in knowledge and wisdom.\nIt is for no vain national power or glory, for no experimental\nabstraction, that governments are instituted among men. It is for man as\nan individual. It is to promote his development; and in that consists\nhis true happiness. The proposition would be still more accurate were it\nsaid, society is constituted that men may be free--free to develop\nthemselves--free to seek their own happiness, following their own\ninstincts or conclusions. Without society--and government, which of\ncourse results from it--men would not be free. An individual in a state\nof isolation might defend himself from savage beasts, and more savage\nmen, as long as his strength lasted, but when sickness or age came on,\nthe product of the labor of his hands, accumulated by a wise foresight\nto meet such a contingency, would become the prey of the stronger. The\ncomparatively weak-minded and ignorant would be constantly subject to\nthe frauds of the more cunning.\n\nIt is enough to look at the effects of the division of employments and\nthe invention of labor-saving machinery, to recognize the invaluable\nresults of society in the development of wealth and power. In a state of\nisolation a man's entire time and strength would be needed for the\nsupply of his physical wants. As men advance in knowledge and wisdom the\nstandard of their mere physical wants is elevated. They demand more\nspacious and comfortable dwellings, more delicate viands and finer\nclothing.\n\n   \"Allow not nature more than nature needs,\n    Man's life is cheap as beasts'.\"\n\nIt is not true that men would be morally better or happier, if their\nstyle of living were reduced to the greatest plainness consistent with\nbare comfort. Our taste in this respect, as for the fine arts, as it\nbecomes more refined, becomes more susceptible of high enjoyment. When\nlarge fortunes are suddenly made by gambling, or what is equivalent\nthereto, then it is that baleful luxury is introduced--a style of living\nbeyond the means of those who adopt it, and spreading through all\nclasses. Taste, cultivated and enjoyed at the expense of morals,\ndegrades and debases instead of purifying and elevating character. Men,\nwho have accumulated wealth slowly by labor of mind or body, do not\nspend it extravagantly. If they use it liberally, that creates no envy\nin their poorer neighbor, no ruinous effort to equal what is recognized\nto be the due reward of industry and economy. The luxury, which\ncorrupted and destroyed the republic of Rome, was the result of large\nfortunes suddenly acquired by the plunder of provinces, the conquests of\nunjust wars. The most fruitful source of it, in our own day, is what has\nbeen well termed _class legislation_--laws which either directly or\nindirectly are meant to favor particular classes of the community. They\nare supported by popular reasons and specious arguments, yet there is\none test of the true character of such laws, an _experimentum crucis_,\nof which, in general, they cannot bear the application. Legislation,\nwhich requires or which will pay to be bored or bought, is unequal\nlegislation; and therefore unwise and unjust. Bentham's rule, though\nfalse as the standard of right and wrong, is in general the true rule of\npractical legislation, the greatest good of the greatest number. It is\nexpressed with the most force and accuracy by that master of the\nscience, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et aequi_:\nin which observe that the word _prope_ is emphatic. Legislation for\nclasses violates this plain rule of equal justice, and moreover does\nnot, in the long run, benefit those for whom it is intended. The\nindirect evils upon society at large are even more injurious than those\nwhich are direct. Men are often thus poor to-day and rich to-morrow. The\nbubble, while it dances in the sunbeam, glitters with golden hues,\nthough destined almost immediately to burst and be seen no more.\n\nWhat government owes to society, and all it owes, is the impartial\nadministration of equal and just laws. This produces security of life,\nof liberty, and of property. It has become a favorite maxim, that it is\nthe duty of government to promote the happiness of the people. The\nphrase may be interpreted so as to mean well, but it is a very\ninaccurate and unhappy one. It is the inalienable right of men to pursue\ntheir _own_ happiness; each man under such restraints of law as will\nleave every other man equally free to do the same. The true and only\ntrue object of government is to secure this right. The happiness of the\npeople is the happiness of the individuals who compose the mass.\nSpeaking now with reference to those objects only, which human laws can\nreach and influence, he is the happy man, who sees his condition in life\nconstantly and gradually, though it may be slowly, improving. Let\ngovernment keep its hands off--do nothing in the way of creating the\nsubject-matter of speculation--and things naturally fall into this\nchannel. There will be some speculators, as there will be some gamblers;\nbut they will be few. The stock market is filled with fancies, which the\ngovernment has manufactured and continues to manufacture to order. It is\nthe duty of government to encourage the accumulation of the savings of\nindustry. The best way to do so is to guard the strong box from the\ninvasion of others, and not itself to invade it. Property has an\nespecial claim to protection against the government itself. The power of\ntaxation in the legislature is in fact a part of the _eminent domain_; a\npower that must necessarily be reposed in the discretion of every\ngovernment to furnish the means of its own existence. One grievous\ninvasion of property--and of course ultimately of labor, from whose\naccumulations all property grows--is by government itself, in the shape\nof taxation for objects not necessary for the common defence and general\nwelfare. Men have a right not only to be well governed, but to be\ncheaply governed--as cheaply as is consistent with the due maintenance\nof that security, for which society was formed and government\ninstituted. This, the sole legitimate end and object of law, is never to\nbe lost sight of--security to men in the free enjoyment and development\nof their capacities for happiness--SECURITY--nothing less--but nothing\nmore. To compel men to contribute of the earnings or accumulations of\nindustry, their own or inherited, to objects beyond this, not within the\nlegitimate sphere of legislation, to appropriate the money in the public\ntreasury to such objects, is a perversion and abuse of the powers of\ngovernment, little if anything short of legalized robbery. What is the\ntrue province of legislation, ought to be better understood. It is worth\nwhile to remark, that in every new and amended State constitution, the\nbill of rights spreads over a larger space; new as well as more\nstringent restrictions are placed upon legislation. There is no danger\nof this being carried too far; as Chancellor Kent appears to have\napprehended that it might be. There is not much danger of erring upon\nthe side of too little law. The world is notoriously too much governed.\nLegislators almost invariably aim at accomplishing too much.\nRepresentative democracies, so far from being exempt from this vice, are\nfrom their nature peculiarly liable to it. Annual legislatures--with\ngenerally two-thirds new members every year--increase the evil. The\nmembers fall into the common mistake, that their commission is to act,\nnot to decide in the first place whether action is necessary. They would\nbe blamed and ridiculed, if they adjourned without doing something\nimportant. Hence the annual volumes of our Acts of Assembly are\nfearfully growing in bulk. It is not merely of the extent of local\nlegislation, the vast multiplication of charters for every imaginable\npurpose, or of the constantly recurring tampering with the most general\nsubjects of interest, finance, revenue, banking, education, pauperism,\n&c., that there is reason to complain; but scarce a session of one of\nour legislatures passes without rash and ill-considered alterations in\nthe civil code, vitally affecting private rights and relations. Such\nlaws are frequently urged by men, having causes pending, who dare not\nboldly ask that a law should be made for their particular case, but who\ndo not hesitate to impose upon the legislature by plausible arguments\nthe adoption of some general rule, which by a retrospective\nconstruction, will have the same operation. It is a most monstrous\npractice, which lawyers are bound by the true spirit of their oath of\noffice, and by a comprehensive view of their duty to the Constitution\nand laws, which they bear so large a part as well in making as\nadministering, to discountenance and prevent. It is to be feared, that\nsometimes it is the counsel of the party who recommends and carefully\nframes the bill, which, when enacted into a law, is legislatively to\ndecide the cause. It is time that a resort to such a measure should be\nregarded in public estimation as a flagrant case of professional\ninfidelity and misconduct.\n\nThis brief sketch of the true province of legislation is enough to\nevince its vast importance. How great is the influence of the lawyers\nas a class upon legislation! Let any man look upon all that has been\ndone in this department, and trace it to its sources. He will\nacknowledge that legislation, good or bad, springs from the Bar. There\nis in this country no class of lawyers confined to the mere business of\nthe profession--no mere attorneys--no mere special pleaders--no mere\nsolicitors in Chancery--no mere conveyancers. However more accurate and\nprofound may be the learning of men, whose studies are thus limited to\none particular branch, it is not to be regretted either on account of\nits influence on the science or the profession. The American lawyer,\nconsidering the compass of his varied duties, and the probable call\nwhich will be made on him especially to enter the halls of legislation,\nmust be a Jurist. From the ranks of the Bar, more frequently than from\nany other profession, are men called to fill the highest public stations\nin the service of the country, at home and abroad. The American lawyer\nmust thus extend his researches into all parts of the science, which has\nfor its object human government and law: he must study it in its grand\noutlines as well as in the filling up of details. He is as frequently\ncalled upon to inquire what the law ought to be as what it is. While a\nbroad and marked line separates, and always ought to separate the\ndepartments of Legislation and Jurisprudence, it is a benefit to both\nthat the same class of men should be engaged in both. Practice will thus\nbe liberalized by theory, and theory restrained and corrected by\npractice. The mere abstractionist or _doctrinaire_ would aim at the\nformation of a code of great simplicity: the practitioner sees in it the\nparent of uncertainty and injustice. Legal propositions cannot be framed\nwith the certainty of mathematical theories. The most carefully studied\nlanguage still leaves room for interpretation and construction. Time\nitself, which works such mighty changes in all things, produces a state\nof circumstances not in the mind of the lawgiver. The existing system,\nit may be, is an unwieldy, inconvenient structure, heavy and grotesque\nfrom the mixed character of its architecture outwardly, inwardly its\nspace too much occupied and its inmates embarrassed by passages and\ncircuities. The abstractionist would at once demolish it, and replace it\nby a light, commodious and airy dwelling, more symmetrical and chaste in\nits appearance, better fitted for the comfort and usefulness of its\ninhabitants. The practitioner, who has become familiar with it, who\nobserves and admires that silent legislation of the people, which shows\nitself not on the pages of the statute book, and receives its\nrecognition in courts of justice only after it has ceased to need even\nthat to give it form and vitality, and who understands, therefore, how,\nwith little inconvenience, it is made to accommodate itself to every\nchange of condition, sits down to a careful calculation of the cost and\nrisk of such wholesale change. History and practical experience, alike,\nsuggest to him, that the structure is a castle as well as a dwelling, a\nplace for security as well as comfort; that its foundations have been\nlaid deeply on the solid rock--its masonry more firmly knit together by\nthe time it has endured. Yet he will not deny that what can be done\nconsistently with security ought to be done. It is worse than in vain to\noppose all amendment. It will break down every artificial barrier that\nmay be reared against it, if it be not quietly and wisely directed in\nthose channels which it seeks at the least expense to security and\nstability. Surely it is not conceding too much to this spirit to admit,\nthat laws should be composed in accurate but perspicuous language,\nwithout redundancy of words or involution of sentences; that the policy\nof public measures should not be wrapt up in the folds of State mystery;\nand that all legislation should be based upon the principle of leaving\nthe greatest liberty of private judgment and action, consistent with\npublic peace and private security. A blind attachment to principles of\njurisprudence or rules of law because they are ancient, when the\nadvancement of the useful arts, the new combinations of trade and\nbusiness, and the influence of more rapid and general intercourse demand\ntheir repeal or modification, is as much to be deprecated as rash\ninnovation and unceasing experiment. Indeed it scarcely ever fails to\ndefeat its own end, and though it may retard for a while, renders the\ncourse of reform more destructive than it otherwise would have been.\nTrue conservatism is gradualism--the movement onward by slow, cautious,\nand firm steps--but still movement, and that onward. The world, neither\nphysically, intellectually, nor morally, was made to stand still. As in\nher daily revolutions on her own axis as well as her annual orbit round\nthe sun, she never returns precisely to the same point in space which\nshe has ever before occupied, it would seem to be the lesson which the\nGreat Author of all Being would most deeply impress upon mind as he has\nwritten it upon matter; \"by ceaseless motion all that is subsists.\"\n\nWhat has thus been very cursorily presented will evince that it is the\nprovince of legislation, by slow and cautious steps, to amend the laws,\nto render them more equal in their operation upon all classes, not\nfavoring the rich more than the poor, nor one class of either more than\nanother, providing an easy, cheap, and expeditious administration of\njustice by tribunals, whose learning and impartiality shall be so\nsecured as to possess the confidence of the community, and by general\nrules for the regulation of conduct and the distribution of estates most\nconformed to the analogies of that system, which is familiar to the\npeople in their common law.\n\nGreat as is the influence which the profession of the law can and does\nexercise upon the legislation of a country, the actual administration of\nlaw is entirely in their hands. To a large extent by private counsel, by\nthe publication of works of research and learning, by arguments in\ncourts of justice to assist those who are to determine what is the law,\nand to apply it to the facts, as well as in the actual exercise of\njudicature, this whole important province of government, which comes\nhome so nearly to every man's fireside, is intrusted necessarily to\nlawyers.\n\nIn this country we live under the protection of written constitutions;\nnot only so, but written constitutions, which have assumed to place\nlimits upon the power of majorities, acting at least through their\nordinary representatives. The construction of these constitutions, or\nconstitutional law as it is termed, forms a very important branch of\nAmerican jurisprudence. There have been, and are, in other countries,\ncharters, written or unwritten--organic or fundamental laws--but without\nthis distinguishing feature. The fundamental laws, thus established in\npoint of fact, emanate from the government, and have no sanction beyond\nthe oath of those intrusted with the administration of them, the force\nof public opinion, and the responsibility of the representative to his\nconstituent. Our constitutions emanate not from the government, but the\nState, the society, the creator of the government; and are, therefore,\nin the strictest sense of the words, _leges legum_. The radical\nprinciple of our system is, that the act of the legislative body, beyond\nor contrary to the power confided to it by the Constitution, is a\nnullity, and absolutely void. The courts must so pronounce, and the\nexecutive must execute their judgments with the whole force of the\nState. Upon such a subject it is best to use the very language--the\n_ipsissima verba_--of John Marshall, as, at the same time, expressing\nthe doctrine with the greatest force and perspicuity, and presenting, in\nthe mere statement, the most convincing argument of its importance. \"It\nis emphatically the province and duty of the judicial department to say\nwhat the law is. Those who apply the rule to particular cases, must, of\nnecessity, expound and interpret that rule. If two laws conflict with\neach other, the courts must decide on the operation of each. So if a law\nbe in opposition to the Constitution; if both the law and the\nConstitution apply to a particular case, so that the court must either\ndecide that case conformably to the law, disregarding the Constitution,\nor conformably to the Constitution, disregarding the law: the court must\ndetermine which of these conflicting rules governs the case. This is of\nthe very essence of judicial duty. If, then, the courts are to regard\nthe Constitution, and the Constitution is superior to any ordinary act\nof the legislature, the Constitution, and not such ordinary act, must\ngovern the case to which they both apply. Those, then, who controvert\nthe principle that the Constitution is to be considered in court as a\nparamount law, are reduced to the necessity of maintaining that courts\nmust close their eyes on the Constitution and see only the law. This\ndoctrine would subvert the very foundation of all written constitutions.\nIt would declare that an act, which, according to the principles and\ntheory of our government, is entirely void, is yet, in practice,\ncompletely obligatory. It would declare that, if the legislature shall\ndo what is expressly forbidden, such act, notwithstanding the express\nprohibition, is, in reality, effectual. It would be giving to the\nlegislature a practical and real omnipotence with the same breath which\nprofesses to restrict their powers within narrow limits. It is\nprescribing limits, and declaring that those limits may be passed at\npleasure.\" (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words\nthan these have never, speaking of human things, fallen from the lips of\nman: weighty in themselves from their own simple but eloquent\nconclusiveness--weightier still from their unspeakable importance, the\nimmeasurable influence they have had, and, it is to be hoped, will ever\ncontinue to have, upon the destinies of the United States of America.\nThe judiciary department, though originating nothing, but acting only\nwhen invoked by parties in the prosecution of their rights, is thus\nnecessarily an important political branch of the government. That\ndepartment spreads the broad and impregnable shield of its protection\nover the life, limbs, liberty, and property of the citizen, when invaded\neven by the will of the majority. Our Bills of Rights are, therefore,\nnot mere enunciations of abstract principles, but solemn enactments by\nthe people themselves, guarded by a sufficient sanction. They have not,\nperhaps, as yet, carried far enough their provisions for the security of\nproperty from the unjust action of government. The obligation of\ncontracts has been declared sacred; the right of eminent domain\nrestricted by the provision for compensation. Yet, even as to contracts,\nthe legislature may still exercise dangerous powers over the remedy,\nshort of taking it away entirely, and over the rules of evidence. As to\neminent domain, they possess an undefined right to determine the time\nand manner of ascertaining the compensation. Our constitutions are\nfrequently undergoing revision; and too much care cannot be exercised to\nstrengthen our securities in this quarter. Personal liberty, trial by\njury, the elective and other political franchises, liberty of\nconscience, of speech and of the press, are able to protect themselves\nin a great measure from their own democratic affinities. It is true,\nthat there really is no difference between wresting from a man the few\ndollars, the products or savings of his industry for any period of time,\nand depriving him of his liberty, or chaining him to a log, to work for\nanother during the same period. Property eminently stands in need of\nevery parchment barrier, which has been or can be thrown around it. An\neminent Judge in our own State once threw out the opinion that there\nexisted in the Constitution no disaffirmance of the power of the\nlegislature to take the property of an individual for _private uses_\nwith or without compensation. \"The clause,\" he argued, \"by which it is\ndeclared that no man's property shall be taken or applied to _public_\nuse, without compensation made, is a disabling, not an enabling one, and\nthe right would have existed in full force without it.\" (Harvey _v._\nThomas, 10 Watts, 63.) Fortunately, the decision of the court in that\ncase did not require a resort to that reasoning, and but little\nexamination was sufficient to satisfy the mind that this _obiter dictum_\nwas unsustained by either principle or authority. A power in the\nlegislature to take the property of A. and give it to B. directly, would\nbe of the very essence of despotism. When it is declared in the Bill of\nRights that no man shall be deprived of his life, liberty, or property,\nunless by the judgment of his peers, or the law of the land, this\nphrase, \"law of the land,\" does not mean merely an act of the\nlegislature. If it did, every restriction upon the legislative\ndepartment would be practically abrogated. By an authority as old as\nLord Coke, in commenting upon these same words in _Magna Charta_, they\nare to be rendered \"without due process of law: that is, by indictment\nor presentment of good and lawful men, when such deeds be done in due\nmanner, or by writ original of the common law, without being brought\ninto answer but by due process of the common law.\" (2 Inst. 50.) The\nAmerican laws are numerous and uniform to the point (see 1 American Law\nMag. 315); and the same eminent Judge, to whom reference has been made\nin a later case, declared his adhesion to the sound and true doctrine in\nthe most emphatic language, without noticing his own previous _dictum_\nto the contrary. \"It was deemed necessary,\" said he, \"to insert a\nspecial provision in the Constitution to enable them (the legislature)\nto take private property even for public use, and on compensation made;\nbut it was not deemed necessary to disable them specially in regard to\ntaking the property of an individual, with or without compensation, in\norder to give it to another, not only because the general provision in\nthe Bill of Rights was deemed sufficiently explicit for that, but\nbecause it was expected that no legislature would be so regardless of\nright as to attempt it. Were this reasonable expectation to be\ndisappointed, it would become our plain and imperative duty to obey the\nimmediate and paramount will of the people, expressed by their voices in\nthe adoption of the Constitution, rather than the repugnant will of\ntheir delegates acting under a restricted but transcended authority.\"\n(Norman _v._ Heist, 5 W. & S. 171.)\n\nYet, while the right of private property cannot be thus directly\ninvaded, its security against the acts of the legislature is not as\nperfect as it might and ought to be made. The legislature must be\nallowed a large discretion in judging what is a public use: on that\npretext much may be brought within its sweep unjustly, and the courts,\nin the absence of a constitutional rule, would be embarrassed in\ndefining its limits. Experience has shown that much power to do wrong\nlurks under grants by no means essential to the public good. Besides\nwhat has been before referred to, the assumption of judicial functions\nby the Legislature and the broad field of Chancery jurisdiction over\ntrust estates, which it has been held that they may exercise\nimmediately, if they see fit, instead of vesting them in appropriate\ntribunals, are fraught with serious danger. The proneness of bodies so\nconstituted to disembarrass themselves of the ordinary rules of\nevidence, to act upon _ex parte_ statements and testimony imperfectly\nauthenticated, as well as the absence of all legal forms from their\nproceedings, and their numbers, among whom the responsibility of giving\ndue attention to the case is divided, add to the peril. The power of\nlegislating retrospectively has far too wide a scope; the constitutional\ninhibition of _ex post facto_ laws having been construed to apply to\ncriminal or penal cases merely, restraining the legislature from making\nthat an offence which was not so at the time of its commission, or\nincreasing the punishment annexed to it. The course of legislation in\nthis country amply demonstrates the wisdom, and even necessity, of\nextending the same prohibition to civil cases. There is no particular\nor partial inconvenience, which could outweigh the general benefits of a\nprovision that no law, public or private, should operate retrospectively\nupon past acts; that the judgment of the tribunals upon every case\nshould be according to the law as it was at the time of the transaction,\nwhich the parties were bound to know, and in accordance with which they\nare to be presumed to have acted.\n\nAs well in the domain of public as of private law, the great fundamental\nprinciple for judge and counsellor ought to be, THAT AUTHORITY IS\nSACRED. There is no inconvenience so great, no private hardship so\nimperative, as to justify the application of a different rule to the\nresolution of a case, than the existing state of the law will warrant.\n\"There is not a line from his pen,\" says Mr. Binney of Chief Justice\nTilghman, \"that trifles with the sacred deposit in his hands by claiming\nto fashion it according to a private opinion of what it ought to be.\nJudicial legislation he abhorred, I should rather say, _dreaded_, as an\nimplication of his conscience. His first inquiry in every case was of\nthe oracles of the law for their response; and when he obtained it,\nnotwithstanding his clear perception of the justice of the cause, and\nhis intense desire to reach it, if it was not the justice of the law, he\ndared not to administer it. He acted upon the sentiment of Lord Bacon,\nthat it is the foulest injustice to remove landmarks, and that to\ncorrupt the law is to poison the very fountains of justice. With a\nconsciousness that to the errors of the science there are some limits,\nbut none to the evils of a licentious invasion of it, he left it to our\nannual legislature to correct such defects in the system as time either\ncreated or exposed; and better foundation in the law can no man lay.\" It\nis not to be denied that there is some difficulty in stating with\naccuracy the limits of the rule _stare decisis_. One, or even more than\none, recent precedent, especially when it relates to the application\nrather than to the establishment of a rule, is not of so binding a\ncharacter that it must be followed, even though contrary to principles\nadjudged in older cases: but it is just as clear that when a decision\nhas been long acquiesced in, when it has been applied in numerous cases,\nand become a landmark in the branch of the science to which it relates,\nwhen men have dealt and made contracts on the faith of it, whether it\nrelates to the right of property itself, or to the evidence by which\nthat right may be substantiated, though it may appear to us \"flatly\nabsurd and unjust,\" to overrule such a decision is an act of positive\ninjustice, as well as a violation of law, and an usurpation by one\nbranch of the government upon the powers of another. An example will\nillustrate this position. In the case of Walton _v._ Shelley (1 Term\nRep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,\ndecided that a person is not a competent witness to impeach a security\nwhich he has given, though he is not interested in the event of the\nsuit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke\n(7 Term Rep. 601), the same court, in 1798, under the presidency of Lord\nKenyon, rightly overruled that decision. Now it so happens that Walton\n_v._ Shelley was recognized as authority and followed in Pennsylvania,\nin 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been\noverruled in England: and though limited as it was understood to be in\nBent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._\nPemberton, 2 Dall. 196), it has never been varied from since that time,\nthough it has frequently been admitted that Walton _v._ Shelley was\nproperly overruled. It ought not now to be overruled in Pennsylvania.\n\"After the decisions cited,\" says Judge Rogers, in Gest _v._ Espy (2\nWatts, 268), \"this cannot be considered an open question, nor do we\nthink ourselves at liberty now to examine the foundations of the rule.\"\nUnfortunately our Supreme Court have not always put this sound and wise\nlimitation upon their own power. In the case of Post _v._ Avery (5 W. &\nS. 509), they declared in regard to a rule of more than thirty years'\nstanding, and confirmed by numerous cases, that they had \"vainly hoped\nthat the inconvenience of the rule would have attracted the attention of\nthe legislature, _who alone are competent to abolish it_;\" but as\nnothing was to be expected from that quarter, \"they were driven by\nstress of necessity\" to overrule a case expressly decided on the\nauthority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years\nafterwards, after having made the remarkable declaration that the\nlegislature alone was competent to abolish the rule, they nevertheless\npronounced it \"exploded altogether.\" (McClelland _v._ Mahon, 1 Barr,\n364.)\n\nLord Bacon says of retrospective laws: \"_Cujus generis leges raro et\nmagna cum cautione sunt adhibenda: neque enim placet Janus in legibus._\"\nWithout any saving clause may the epithet and denunciation be applied to\njudicial laws. They are always _retrospective_, but worse on many\naccounts than _retrospective statutes_. Against the latter we have at\nleast the security of the constitutional provision that prohibits the\npassage of any law, which impairs the obligation of a contract,\nexecutory or executed; and it has been well held that this prohibition\napplies to such an alteration of the law of evidence in force at the\ntime the contract was made, as would practically destroy the contract\nitself by destroying the only means of enforcing it. There is no such\nconstitutional provision against judicial legislation. It sweeps away a\nman's rights, vested, as he had reason to think, upon the firmest\nfoundation, without affording him the shadow of redress. Nor could\nthere, in the nature of things, be any such devised. When a court\noverrules a previous decision, it does not simply repeal it; it must\npronounce it never to have been law. There is no instance on record, in\nwhich a court has instituted the inquiry, upon what grounds the suitor\nhad relied in investing his property or making his contract, and\nrelieved him from the disastrous consequences, not of his, but of their\nmistake, or the mistake of their predecessors. The man who, on the faith\nof Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811,\nand treated as so well settled in itself and all its logical\nconsequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme\nCourt, declined to hear the counsel, who relied on its authority,\ninvested his money in the purchase of a claim which could be proved only\nby the testimony of the assignor, found himself stripped of his property\nby a decision in 1845, the results of which were broader than even the\nlegislature itself would have been competent to effect, or indeed the\npeople themselves in their sovereign capacity, at least so long as the\nConstitution of the United States continues to be \"the supreme law of\nthe land, anything in the _constitution_ and laws of any State to the\ncontrary notwithstanding.\"\n\nBut judicial is much worse than legislative retrospection in another\naspect. The act of Assembly, if carefully worded, is at least a certain\nrule. The act of the judicial legislature is invariably the precursor of\nuncertainty and confusion. Apply to it a test, which may be set down as\nunerring, never failing soon to discover the true metal from the base\ncounterfeit: its effect upon litigation. A decision in conformity to\nestablished precedents is the mother of repose on that subject; but one\nthat departs from them throws the professional mind at sea without\nchart or compass. The cautious counsellor will be compelled to say to\nhis client that he cannot advise. One cause is the general uncertainty\nto which it leads. Men will persuade themselves easily, when it is their\ninterest to be persuaded, that if one well-established rule has been\noverthrown, another, believed to be quite as wrong and perhaps not so\nwell fortified by time and subsequent cases, may share the same fate.\nShall counsel risk advising his client not to prosecute his claim or\ndefence, when another bolder than he, may moot the point and conduct\nanother cause resting upon the same question to a successful\ntermination? The very foundations of confidence and security are shaken.\nThe law becomes a lottery, in which every man feels disposed to try his\nchance. Another cause of this uncertainty is more particular. A court\nscarcely ever makes an open and direct overthrow of a deeply founded\nrule at one stroke. It requires repeated blows. It can be seen to be in\ndanger, but not whether it is finally to fall. Hence it frequently\nhappens that there is a sliding scale of cases; and when the final\noverthrow comes, it is very difficult to determine, whether any and\nwhich steps of the process remain. Shortly after the decision in Post\n_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the\ninferior courts; in which the Judge, thinking that Post _v._ Avery,\nhowever the intention may have been disclaimed, did in fact overrule\nSteele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal\nplaintiffs, a retiring partner, who upon dissolution had sold out for a\nprice _bona fide_ paid, all his interest in the firm to his copartners,\nwho continued the business. A motion was made for a new trial, and\nbefore the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)\nhad appeared, and the court, on the authority of that case, which\ndecided that an assignment must be colorable and made for the purpose of\nrendering the assignor a witness in order to exclude him, ordered a new\ntrial. Before the case was again called for trial, the first volume of\nBarr's Reports had been published, in which the Supreme Court said:\n\"The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins.\nCo. must be exploded altogether. The essential interests of justice\ndemand that the decision in that case be no longer a precedent for\nanything whatever.\" (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge\nbefore whom the cause was then tried had no other course left, but again\nto reject the witness, the very same thing on account of which a new\ntrial had been ordered.\n\nThe case of Post _v._ Avery is a most striking illustration of judicial\nlegislation and its mischievous results. It is usual to hear it excused\non account of the unequal and unjust operation of the rule reversed, by\nwhich one party was heard but not the other, and the temptation it held\nout for the manufacture of false claims, to be supported by perjury. But\nit is to lose sight of the real question involved to raise such an\nissue: for, like the execution of a notorious culprit by the expeditious\nprocess of a mob and a lamp-post, instead of the formalities and delays\nof law and courts, it may be a very good thing for the community to\nhave rid itself of the offender, but the way by which it was\naccomplished was a heavy blow at the very root of the tree of public and\nprivate security.\n\nThere is another decision of the Supreme Court of Pennsylvania, not so\nbold and avowed an act of judicial legislation as that just mentioned,\nbut not less transparent, which may be cited as strongly illustrating\nthe same consequences of uncertainty and litigation flowing from a\ndisregard of the principle adverted to. From the year 1794, there had\nexisted in Pennsylvania an act of Assembly limiting the lien of the\ndebts of a decedent on his real estate, at first to seven, afterwards to\nfive years. No question ever arose before the court in regard to it.\nLien was considered to mean lien and not obligation: lands to be subject\nto execution for all debts of the owner prosecuted to judgment, and of\ncourse not barred by the Statute of Limitations; and the limitation of\nthe lien merely intended for the protection of purchasers from the heirs\nor devisees or their lien creditors. Such was recognized to be the true\nmeaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so\ndistinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on\ngrounds palpably only relevant to what, in the opinion of the court, the\nlaw ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),\nthat the period named was a limitation not of the lien but of the debt\nitself, and available in favor of heirs and devisees, volunteers under\nthe debtor and succeeding to his rights _cum onere_. As we have seen,\nbut two cases are to be produced of litigation arising out of this law\ncarried to the highest tribunal from 1794 to 1832. More than twenty\ncases are to be found reported since, in which that court has been\ncalled upon to draw distinctions and settle the precise extent of their\nown law. Thus a little complicated system has grown up on this\nconstruction of the act. A volume, indeed, might be written on Kerper\n_v._ Hoch and its satellites, when if the act had been let alone to\nspeak for itself, and the prior decision followed, it would have been a\nsimple and intelligible rule of action, until the legislature saw fit\nto alter it. It seems that this consideration pressed upon at least one\nof the judges, who joined in that decision; for in a subsequent case,\nwhen Kerper _v._ Hoch was cited, that Judge, with characteristic candor,\ninterrupted the counsel with the remark: \"We will abide by the rule, but\nit was erroneously decided.\" (Hocker's Appeal, 4 Barr, 498.)\n\nThis, then, is the legitimate province of Jurisprudence, _Stare super\nantiquas vias_, to maintain the ancient landmarks, to respect authority,\nto guard the integrity of the law as a science, that it may be a certain\nrule of decision, and promote that security of life, liberty, and\nproperty, which, as we have seen, is the great end of human society and\ngovernment. Thus industry will receive its best encouragement; thus\nenterprise will be most surely stimulated; thus constant additions to\ncapital by savings will be promoted; thus the living will be content in\nthe feeling that their earnings are safely invested; and the dying be\nconsoled with the reflection that the widow and orphan are left under\nthe care and protection of a government, which administers impartial\njustice according to established laws.\n\nWith jurisprudence, lawyers have the most, nay all, to do. The opinion\nof the Bar will make itself heard and respected on the Bench. With sound\nviews, their influence for good in this respect may well be said to be\nincalculable. It is indeed the noblest faculty of the profession to\ncounsel the ignorant, defend the weak and oppressed, and to stand forth\non all occasions as the bulwark of private rights against the assaults\nof power, even under the guise of law; but it has still other functions.\nIt is its office to diffuse sound principles among the people, that they\nmay intelligently exercise the controlling power placed in their hands,\nin the choice of their representatives in the Legislature and of Judges,\nin deciding, as they are often called upon to do, upon the most\nimportant changes in the Constitution, and above all in the formation of\nthat public opinion which may be said in these times, almost without a\nfigure, to be _ultimate sovereign_. Whether they seek them or are\nsought, lawyers, in point of fact, always have filled, in much the\nlarger proportion over every other profession, the most important public\nposts. They will continue to do so, at least so long as the profession\nholds the high and well-merited place it now does in the public\nconfidence.\n\n\n\n\nPROFESSIONAL ETHICS.\n\n\nThere is, perhaps, no profession, after that of the sacred ministry, in\nwhich a high-toned morality is more imperatively necessary than that of\nthe law. There is certainly, without any exception, no profession in\nwhich so many temptations beset the path to swerve from the line of\nstrict integrity; in which so many delicate and difficult questions of\nduty are continually arising. There are pitfalls and man-traps at every\nstep, and the mere youth, at the very outset of his career, needs often\nthe prudence and self-denial, as well as the moral courage, which belong\ncommonly to riper years. High moral principle is his only safe guide;\nthe only torch to light his way amidst darkness and obstruction. It is\nlike the spear of the guardian angel of Paradise:\n\n              No falsehood can endure\n    Touch of celestial temper, but returns\n    Of force to its own likeness.\n\nThe object of this Essay is to arrive at some accurate and intelligible\nrules by which to guide and govern the conduct of professional life. It\nwould not be a difficult task to declaim in general propositions--to\nerect a perfect standard and leave the practitioner to make his own\napplication to particular cases. It is a difficult task, however, as it\nalways is in practice, to determine the precise extent of a principle,\nso as to know when it is encountered and overcome by another--to weigh\nthe respective force of duties which appear to come in conflict. In all\nthe walks of life men have frequently to do this: in none so often as at\nthe Bar.\n\nThe responsibilities, legal and moral, of the lawyer, arise from his\nrelations to the court, to his professional brethren and to his client.\nIt is in this order that it is proposed to consider and discuss the\nvarious topics which grow out of this subject.\n\nThe oath directed by law in this State to be administered upon the\nadmission of an attorney to the bar, \"to behave himself in the office of\nattorney according to the best of his learning and ability, and with all\ngood fidelity, as well to the court as to the client; that he will use\nno falsehood, nor delay any man's cause for lucre or malice,\" presents a\ncomprehensive summary of his duties as a practitioner.[1]\n\nFidelity to the court, fidelity to the client, fidelity to the claims of\ntruth and honor: these are the matters comprised in the oath of office.\n\nIt is an oath of office, and the practitioner, the incumbent of an\noffice--an office in the administration of justice[2]--held by authority\nfrom those who represent in her tribunals the majesty of the\ncommonwealth, a majesty truly more august than that of kings or\nemperors. It is an office, too, clothed with many privileges--privileges,\nsome of which are conceded to no other class or profession.[3] It is,\ntherefore, that the legislature have seen fit to require that there\nshould be added to the solemnity of the responsibility, which every man\nvirtually incurs when he enters upon the practice of his profession,\nthe higher and more impressive sanction of an appeal to the Searcher of\nall Hearts.\n\nFidelity to the court, requires outward respect in words and actions.\nThe oath as it has been said, undoubtedly looks to nothing like\nallegiance to the person of the judge; unless in those cases where his\nperson is so inseparable from his office, that an insult to the one, is\nan indignity to the other. In matters collateral to official duty, the\njudge is on a level with the members of the bar, as he is with his\nfellow-citizens; his title to distinction and respect resting on no\nother foundation, than his virtues and qualities as a man.[4] There are\noccasions, no doubt, when duty to the interests confided to the charge\nof the advocate demands firm and decided opposition to the views\nexpressed or the course pursued by the court, nay, even manly and open\nremonstrance; but this duty may be faithfully performed, and yet that\noutward respect be preserved, which is here inculcated. Counsel should\never remember how necessary it is for the dignified and honorable\nadministration of justice, upon which the dignity and honor of their\nprofession entirely depend, that the courts and the members of the\ncourts, should be regarded with respect by the suitors and people; that\non all occasions of difficulty or danger to that department of\ngovernment, they should have the good opinion and confidence of the\npublic on their side. Good men of all parties prefer to live in a\ncountry, in which justice according to law is impartially administered.\nCounsel should bear in mind also the wearisomeness of a judge's office;\nhow much he sees and hears in the course of a long session, to try his\ntemper and patience. Lord Campbell has remarked that it is rather\ndifficult for a judge altogether to escape the imputation of discourtesy\nif he properly values the public time; for one of his duties is to\n\"render it disagreeable to counsel to talk nonsense.\" Respectful\nsubmission, nay, most frequently, even cheerful acquiescence in a\ndecision, when, as is most generally the case, no good result to his\ncause can grow from any other course, is the part of true wisdom as well\nas civility. An exception may be noted to the opinion of the Bench, as\neasily in an agreeable and polite, as in a contemptuous and insulting\nmanner. The excitement of the trial of a cause caused by the conflict of\ntestimony, making often the probabilities of success to vibrate\nbackwards and forwards with as much apparent uncertainty as the chances\nin a game of hazard, is no doubt often the reason and apology for\napparent disrespect in manner and language; but let it be observed, that\npetulance in conflicts with the Bench, which renders the trial of causes\ndisagreeable to all concerned, has most generally an injurious effect\nupon the interests of clients.\n\nIndeed, it is highly important that the temper of an advocate should be\nalways equal. He should most carefully aim to repress everything like\nexcitability or irritability. When passion is allowed to prevail, the\njudgment is dethroned. Words are spoken, or things done, which the\nparties afterwards wish could be unsaid or undone. Equanimity and\nself-possession are qualities of unspeakable value. An anecdote may\nserve to illustrate this remark. There was a gentleman of the Bar of\nPhiladelphia, many years ago, who possessed these qualities in a very\nremarkable degree. He allowed nothing that occurred in a cause to\ndisturb or surprise him. On an occasion in one of the neighboring\ncounties, the circuit of which it was his custom to ride, he was trying\na cause on a bond, when a witness for defendant was introduced, who\ntestified that the defendant had taken the amount of the bond, which was\nquite a large sum, from his residence to that of the obligee, a distance\nof several miles, and paid him in silver in his presence. The evidence\nwas totally unexpected; his clients were orphan children; all their\nfortune was staked on this case. The witness had not yet committed\nhimself as to how the money was carried. Without any discomposure--without\nlifting his eyes or pen from paper--he made on the margin of his notes\nof trial a calculation of what that amount in silver would weigh; and\nwhen it came his turn to cross-examine, calmly proceeded to make the\nwitness repeat his testimony step by step,--when, where, how, and how\nfar the money was carried--and then asked him if he knew how much that\nsum of money weighed, and upon naming the amount, so confounded the\nwitness, party, and counsel engaged for the defendant, that the defence\nwas at once abandoned, and a verdict for the plaintiff rendered on the\nspot.[5]\n\nAnother plain duty of counsel is to present every thing in the cause to\nthe court openly in the course of the public discharge of its duties. It\nis not often, indeed, that gentlemen of the Bar so far forget themselves\nas to attempt to exert privately an influence upon the judge, to seek\nprivate interviews, or take occasional opportunities of accidental or\nsocial meetings to make _ex parte_ statements, or to endeavor to impress\ntheir views. They know that such conduct is wrong in itself, and has a\ntendency to impair confidence in the administration of justice, which\nought not only to be pure but unsuspected. A judge will do right to\navoid social intercourse with those who obtrude such unwelcome matters\nupon his moments of relaxation. There is one thing, however, of which\ngentlemen of the Bar are not sufficiently careful,--to discourage and\nprohibit their clients from pursuing a similar course. The position of\nthe judge in relation to a cause under such circumstances is very\nembarrassing, especially, as is often the case, if he hears a good deal\nabout the matter before he discovers the nature of the business and\nobject of the call upon him. Often the main purpose of such visits is\nnot so much to plead the cause, as to show the judge who the party\nis--an acquaintance, perhaps--and thus, at least, to interest his\nfeelings. Counsel should set their faces against all undue influences of\nthe sort; they are unfaithful to the court, if they allow any improper\nmeans of the kind to be resorted to. _Judicem nec de obtinendo jure\norari oportet nec de injuria exorari._ It may be in place to remark here\nthat the counsel in a cause ought to avoid all unnecessary communication\nwith the jurors before or during any trial in which he may be\nconcerned. He should enforce the same duty upon his client. Any attempt\nby an attorney to influence a juror by arguments or otherwise, will, of\ncourse, if discovered and brought to the notice of the court, lead to\nexpulsion or suspension from the Bar, according to the degree and\nquality of the offence. The freedom of the jury-box from extraneous\ninfluences is a matter of such vital moment in our system that the\ncourts are bound to watch over it with jealous eyes. \"It would be an\ninjury to the administration of justice,\" says C. J. Tilghman, \"not to\ndeclare that it is gross misbehavior for any person to speak with a\njuror, or for a juror to permit any person to speak with him, respecting\nthe cause he is trying, at any time after he is summoned and before the\nverdict is delivered.\" \"The words thus uttered,\" says Judge Hare, \"by\none of the best men and purest magistrates that ever filled the judicial\noffice, must find an echo in every bosom. The principle which dictated\nthem does not require the aid of argument or elucidation; it is native\nto the conscience, and will be apparent to all who consult the monitor\nin their own breast. The wrong is aggravated when the taint of personal\ninterest mingles with it, as when committed by a party to the cause, but\nappears in the worst form when it is the act of attorneys or counsel,\nwho are the sworn officers of the court, whose duty it is to act as\nguardians of the fountains of justice, and who are false to their charge\nwhen they defile or taint those waters, which they are pledged to keep\npure and unpolluted. Such conduct in counsel is a gross breach of trust,\nfor which a removal from the trust is but an inadequate punishment.\"[6]\n\nThere is another duty to the court, and that is, to support and maintain\nit in its proper province wherever it comes in conflict with the\nco-ordinate tribunal--the jury. The limits of these two provinces are\nsettled with great accuracy; and even if a judge makes a mistake, the\nonly proper place to correct his error is in the superior tribunal,--the\nCourt of Errors. It has been held in a multitude of cases, that verdicts\nagainst the charge of the court in point of law, will be set aside\nwithout limitation as to the number of times, and that without regard to\nthe question whether the direction of the court in point of law was\nright or wrong. There is a technical reason, which makes this course in\nall cases imperative. The losing party, if the jury were allowed to\ndecide the law for him, would be deprived of his exception, and of his\nunquestionable right to have the law of his case pronounced upon by the\nSupreme Court. _Ad questiones juris respondeant judices,--ad questiones\nfacti juratores._ A disregard by the jury of the law, as laid down by\nthe judge, is always therefore followed by additional and unnecessary\ndelay and expense, and it is never an advantage to a party in the long\nrun to obtain a verdict in opposition to the direction of the court.[7]\nIt is best for counsel to say in such cases, where nothing is left by\nthe charge to the jury, that they do not ask for a verdict. It has a\nfair, candid, and manly aspect towards court, jury, opposite party, and\neven client. Instances of counsel urging or endeavoring to persuade a\njury to disregard the charge may sometimes occur, but they are\nexceedingly rare when there is good feeling between the Bench and the\nBar, and when the members of the profession have just and enlightened\nviews of their duty as well as interest.\n\nIt need hardly be added that a practitioner ought to be particularly\ncautious, in all his dealings with the court, to use no deceit,\nimposition, or evasion--to make no statements of facts which he does not\nknow or believe to be true--to distinguish carefully what lies in his\nown knowledge from what he has merely derived from his instructions--to\npresent no paper-books intentionally garbled. \"Sir Matthew Hale\nabhorred,\" says his biographer, \"those too common faults of\nmisrepresenting evidence, quoting precedents or books falsely, or\nasserting anything confidently by which ignorant juries and weak judges\nare too often wrought upon.\"[8] One such false step in a young lawyer\nwill do him an injury in the opinion of the Bench and of his\nprofessional brethren, which it will take years to redeem, if indeed it\never can be entirely redeemed.\n\nA very great part of a man's comfort, as well as of his success at the\nBar, depends upon his relations with his professional brethren. With\nthem he is in daily necessary intercourse, and he must have their\nrespect and confidence, if he wishes to sail along in smooth waters. He\ncannot be too particular in keeping faithfully and liberally every\npromise or engagement he may make to them. One whose perfect\ntruthfulness is even suspected by his brethren at the Bar has always an\nuneasy time of it. He will be constantly mortified by observing\nprecautions taken with him which are not used with others. It is not\nonly morally wrong but dangerous to mislead an opponent, or put him on\na wrong scent in regard to the case. It would be going too far to say\nthat it is ever advisable to expose the weakness of a client's cause to\nan adversary, who may be unscrupulous in taking advantage of it; but it\nmay be safely said, that he who sits down deliberately to plot a\nsurprise upon his opponent, and which he knows can succeed only by its\nbeing a surprise, deserves to fall, and in all probability will fall,\ninto the trap which his own hands have laid. \"Whoso diggeth a pit,\" says\nthe wise man, \"shall fall therein, and he that rolleth a stone, it will\nreturn upon him.\" If he should succeed, he will have gained with his\nsuccess not the admiration and esteem, but the distrust and dislike of\none of his associates as long as he lives. He should never unnecessarily\nhave a personal difficulty with a professional brother. He should\nneither give nor provoke insult. Nowhere more than at the Bar is that\nadvice valuable:\n\n                               \"Beware\n    Of entrance to a quarrel; but being in,\n    Bear it that the opposed may beware of thee.\"\n\nThere is one more caution to be given under this head. Let him shun most\ncarefully the reputation of a sharp practitioner. Let him be liberal to\nthe slips and oversights of his opponent wherever he can do so, and in\nplain cases not shelter himself behind the instructions of his client.\nThe client has no right to require him to be illiberal--and he should\nthrow up his brief sooner than do what revolts against his own sense of\nwhat is demanded by honor and propriety.\n\nNothing is more certain than that the practitioner will find, in the\nlong run, the good opinion of his professional brethren of more\nimportance than that of what is commonly called the public. The\nfoundations of the reputation of every truly great lawyer will be\ndiscovered to have been laid here. Sooner or later, the real public--the\nbusiness men of the community, who have important lawsuits, and are\nvaluable clients--indorse the estimate of a man entertained by his\nassociates of the Bar, unless indeed there be some glaring defect of\npopular qualities. The community know that they are better qualified to\njudge of legal attainments, that they have the best opportunity of\njudging, and that they are slow in forming a judgment. The good opinion\nand confidence of the members of the same profession, like the King's\nname on the field of battle, is \"a tower of strength;\" it is the title\nof legitimacy. The ambition to please the people, to captivate jurors,\nspectators, and loungers about the court room, may mislead a young man\ninto pertness, flippancy, and impudence, things which often pass current\nfor eloquence and ability with the masses; but the ambition to please\nthe Bar can never mislead him. Their good graces are only to be gained\nby real learning, by the strictest integrity and honor, by a courteous\ndemeanor, and by attention, accuracy and punctuality in the transaction\nof business.\n\nThe topic of fidelity to the client involves the most difficult\nquestions in the consideration of the duty of a lawyer.\n\nHe is legally responsible to his client only for the want of ordinary\ncare and ordinary skill. That constitutes gross negligence. It is\nextremely difficult to fix upon any rule which shall define what is\nnegligence in a given case. The habits and practice of men are widely\ndifferent in this regard. It has been laid down that if the ordinary and\naverage degree of diligence and skill could be determined, it would\nfurnish the true rule.[9] Though such be the extent of legal liability,\nthat of moral responsibility is wider. Entire devotion to the interest\nof the client, warm zeal in the maintenance and defence of his rights,\nand the exertion of his utmost learning and ability,--these are the\nhigher points, which can only satisfy the truly conscientious\npractitioner.\n\nBut what are the limits of his duty when the legal demands or interests\nof his client conflict with his own sense of what is just and right?\nThis is a problem by no means of easy solution.\n\nThat lawyers are as often the ministers of injustice as of justice is\nthe common accusation in the mouth of gainsayers against the profession.\nIt is said there must be a right and a wrong side to every lawsuit. In\nthe majority of cases it must be apparent to the advocate, on which side\nis the justice of the cause; yet he will maintain, and often with the\nappearance of warmth and earnestness, that side which he must know to be\nunjust, and the success of which will be a wrong to the opposite party.\nIs he not then a participator in the injustice?\n\nIt may be answered in general:--\n\nEvery case is to be decided by the tribunal before which it is brought\nfor adjudication upon the evidence, and upon the principles of law\napplicable to the facts as they appear upon the evidence. No court or\njury are invested with any arbitrary discretion to determine a cause\naccording to their mere notions of justice. Such a discretion vested in\nany body of men would constitute the most appalling of despotisms. Law,\nand justice according to law--this is the only secure principle upon\nwhich the controversies of men can be decided. It is better on the whole\nthat a few particular cases of hardship and injustice, arising from\ndefect of evidence or the unbending character of some strict rule of\nlaw, should be endured, than that general insecurity should pervade the\ncommunity from the arbitrary discretion of the judge. It is this which\nhas blighted the countries of the East as much as cruel laws or despotic\nexecutives. Thus the legislature has seen fit in certain cases to assign\na limit to the period within which actions shall be brought; in order to\nurge men to vigilance, and to prevent stale claims from being suddenly\nrevived against men whose vouchers are destroyed or whose witnesses are\ndead. It is true, _in foro conscientiae_, a defendant, who knows that he\nhonestly owes the debt sued for and that the delay has been caused by\nindulgence or confidence on the part of his creditor, ought not to plead\nthe statute. But if he does plead it, the judgment of the court must be\nin his favor.\n\nNow the lawyer is not merely the agent of the party; he is an officer of\nthe court. The party has a right to have his case decided upon the law\nand the evidence, and to have every view presented to the minds of his\njudges, which can legitimately bear upon that question. This is the\noffice which the advocate performs. He is not morally responsible for\nthe act of the party in maintaining an unjust cause, nor for the error\nof the court, if they fall into error, in deciding it in his favor. The\ncourt or jury ought certainly to hear and weigh both sides; and the\noffice of the counsel is to assist them by doing that, which the client\nin person, from want of learning, experience, and address, is unable to\ndo in a proper manner. The lawyer, who refuses his professional\nassistance because in his judgment the case is unjust and indefensible,\nusurps the functions of both judge and jury.\n\nAs an answer to any sweeping objection made to the profession in\ngeneral, the view thus presented may be quite satisfactory. It by no\nmeans follows, however, as a principle of private action for the\nadvocate, that all causes are to be taken by him indiscriminately and\nconducted with a view to one single end, _success_. It is much to be\nfeared, however, that the prevailing tone of professional ethics leads\npractically to this result. He has an undoubted right to refuse a\nretainer, and decline to be concerned in any cause, at his discretion.\nIt is a discretion to be wisely and justly exercised. When he has once\nembarked in a case, he cannot retire from it without the consent of his\nclient or the approbation of the court.[10] To come before the court\nwith a revelation of facts, damning to his client's case, as a ground\nfor retiring from it, would be a plain breach of the confidence reposed\nin him, and the law would seal his lips.[11] How then is he to acquit\nhimself? Lord Brougham, in his justly celebrated defence of the Queen,\nwent to very extravagant lengths upon this subject; no doubt he was led\nby the excitement of so great an occasion to say what cool reflection\nand sober reason certainly never can approve. \"An advocate,\" said he,\n\"in the discharge of his duty knows but one person in all the world, and\nthat person is his client. To save that client by all means and\nexpedients, and at all hazards and costs to other persons, and among\nthem to himself, is his first and only duty; and in performing this\nduty he must not regard the alarm, the torments, the destruction he may\nbring upon others. Separating the duty of a patriot from that of an\nadvocate, he must go on reckless of consequences; though it should be\nhis unhappy lot to involve his country in confusion.\"\n\nOn the other hand, and as illustrative of the practical difficulty,\nwhich this question presented to a man, with as nice a perception of\nmoral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir\nMatthew Hale: \"If he saw a cause was unjust, he for a great while would\nnot meddle further in it, but to give his advice that _it was so_; if\nthe parties after that would go on, they were to seek another\ncounsellor, for he would assist none in acts of injustice; if he found\nthe cause doubtful or weak in point of law, he always advised his\nclients to agree their business. Yet afterwards he abated much of the\nscrupulosity he had about causes that appeared at first unjust, upon\nthis occasion; there were two causes brought him, which by the ignorance\nof the party or their attorney, were so ill-represented to him that they\nseemed to be very bad; but he inquiring more narrowly into them, found\nthey were really very good and just; so after this he slackened much of\nhis former strictness of refusing to meddle in causes upon the ill\ncircumstances that appeared in them at first.\"[12]\n\nIt may be delicate and dangerous ground to tread upon to undertake to\ndescend to particulars upon such a subject. Every case must, to a great\ndegree, depend upon its own circumstances, known, peradventure, to the\ncounsel alone; and it will often be hazardous to condemn either client\nor counsel upon what appears only. A hard plea--a sharp point--may\nsubserve what is at bottom an honest claim, or just defence; though the\nevidence may not be within the power of the parties, which would make it\nmanifest.\n\nThere are a few propositions, however, which appear to me to be sound in\nthemselves, and calculated to solve this problem practically in the\nmajority of cases: at least to assist the mind in coming to a safe\nconclusion _in foro conscientiae_, in the discharge of professional duty.\n\nThere is a distinction to be made between the case of prosecution and\ndefence for crimes; between appearing for a plaintiff in pursuit of an\nunjust claim, and for a defendant in resisting what appears to be a just\none.\n\nEvery man, accused of an offence, has a constitutional right to a trial\naccording to law: even if guilty, he ought not to be convicted and\nundergo punishment unless upon legal evidence; and with all the forms\nwhich have been devised for the security of life and liberty. These are\nthe panoply of innocence when unjustly arraigned; and guilt cannot be\ndeprived of it, without removing it from innocence. He is entitled,\ntherefore, to the benefit of counsel to conduct his defence, to\ncross-examine the witnesses for the State, to scan, with legal\nknowledge, the forms of the proceeding against him, to present his\ndefence in an intelligible shape, to suggest all those reasonable doubts\nwhich may arise from the evidence as to his guilt, and to see that if he\nis convicted, it is according to law. A circumstance the celebrated Lord\nShaftesbury once so finely turned to his purpose must often happen to a\nprisoner at his trial. Attempting to speak on the bill for granting\ncounsel to prisoners in cases of high treason, he was confounded, and\nfor some time could not proceed, but recovering himself, he said, \"What\nnow happened to him would serve to fortify the arguments for the bill.\nIf he innocent and pleading for others was daunted at the augustness of\nsuch an assembly, what must a man be who should plead before them for\nhis life?\"[13] The courts are in the habit of assigning counsel to\nprisoners who are destitute, and who request it; and counsel thus named\nby the court cannot decline the office.[14] It is not to be termed\nscreening the guilty from punishment, for the advocate to exert all his\nability, learning, and ingenuity, in such a defence, even if he should\nbe perfectly assured in his own mind of the actual guilt of the\nprisoner.[15]\n\nIt is a different thing to engage as private counsel in a prosecution\nagainst a man whom he knows or believes to be innocent. Public\nprosecutions are carried on by a public officer, the Attorney-General,\nor those who act in his place; and it ought to be a clear case to induce\ngentlemen to engage on behalf of private interests or feelings, in such\na prosecution. It ought never to be done against the counsel's own\nopinion of its merits. There is no call of professional duty to balance\nthe scale, as there is in the case of a defendant. It is in every case\nbut an act of courtesy in the Attorney-General to allow private counsel\nto take part for the Commonwealth; such a favor ought not to be asked,\nunless in a cause believed to be manifestly just. The same remarks apply\nto mere assistance in preparing such a cause for trial out of court, by\ngetting ready and arranging the evidence and other matters connected\nwith it: as the Commonwealth has its own officers, it may well, in\ngeneral, be left to them. There is no obligation on an attorney to\nminister to the bad passions of his client; it is but rarely that a\ncriminal prosecution is pursued for a valuable private end, the\nrestoration of goods, the maintenance of the good name of the\nprosecutor, or closing the mouth of a man who has perjured himself in a\ncourt of justice. The office of Attorney-General is a public trust,\nwhich involves in the discharge of it, the exertion of an almost\nboundless discretion, by an officer who stands as impartial as a judge.\n\"The professional assistant, with the regular deputy, exercises not his\nown discretion, but that of the Attorney-General, whose _locum tenens_\nat sufferance, he is; and he consequently does so under the obligation\nof the official oath.\"[16] On the other hand, if it were considered that\na lawyer was bound or even had a right to refuse to undertake the\ndefence of a man because he thought him guilty, if the rule were\nuniversally adopted, the effect would be to deprive a defendant, in such\ncases, of the benefit of counsel altogether.\n\nThe same course of remark applies to civil causes. A defendant has a\nlegal right to require that the plaintiffs demand against him should be\nproved and proceeded with according to law. If it were thrown upon the\nparties themselves, there would he a very great inequality between them,\naccording to their intelligence, education, and experience,\nrespectively. Indeed, it is one of the most striking advantages of\nhaving a learned profession, who engage as a business in representing\nparties in courts of justice, that men are thus brought nearer to a\ncondition of equality, that causes are tried and decided upon their\nmerits, and do not depend upon the personal characters and\nqualifications of the immediate parties.[17] Thus, too, if a suit be\ninstituted against a man to recover damages for a tort, the defendant\nhas a right to all the ingenuity and eloquence he can command in his\ndefence, that even if he has committed a wrong, the amount of the\ndamages may not exceed what the plaintiff is justly entitled to recover.\nBut the claim of a plaintiff stands upon a somewhat different footing.\nCounsel have an undoubted right, and are in duty bound, to refuse to be\nconcerned for a plaintiff in the legal pursuit of a demand, which\noffends his sense of what is just and right. The courts are open to the\nparty in person to prosecute his own claim, and plead his own cause;\nand although he ought to examine and be well-satisfied before he refuses\nto a suitor the benefit of his professional skill and learning, yet it\nwould be on his part an immoral act to afford that assistance, when his\nconscience told him that the client was aiming to perpetrate a wrong\nthrough the means of some advantage the law may have afforded him. \"It\nis a popular but gross mistake,\" says the late Chief Justice Gibson, \"to\nsuppose that a lawyer owes no fidelity to any one except his client, and\nthat the latter is the keeper of his professional conscience. He is\nexpressly bound by his official oath to behave himself, in his office of\nattorney, with all fidelity to the court as well as the client; and he\nviolates it when he consciously presses for an unjust judgment, much\nmore so when he presses for the conviction of an innocent man.... The\nhigh and honorable office of a counsel would be degraded to that of a\nmercenary, were he compelled to do the biddings of his client against\nthe dictates of his conscience.\"[18] The sentiment has been expressed\nin flowing numbers by our great commentator, Sir William Blackstone:--\n\n   \"To Virtue and her friends a friend,\n    Still may my voice the weak defend:\n    Ne'er may my prostituted tongue\n    Protect the oppressor in his wrong;\n    Nor wrest the spirit of the laws,\n    To sanctify the villain's cause.\"\n\nAnother proposition which may be advanced upon this subject is, that\nthere may and ought to be a difference made in the mode of conducting a\ndefence against what is believed to be a righteous, and what is believed\nto be an unrighteous claim. A defence in the former case should be\nconducted upon the most liberal principles. When he is contending\nagainst the claim of one, who is seeking, as he believes, through the\nforms of law, to do his client an injury, the advocate may justifiably\navail himself of every honorable ground to defeat him. He may begin at\nonce by declaring to his opponent or his professional adviser, that he\nholds him at arm's length, and he may keep him so during the whole\ncontest. He may fall back upon the instructions of his client, and\nrefuse to yield any legal vantage ground, which may have been gained\nthrough the ignorance or inadvertence of his opponent. Counsel, however,\nmay and even ought to refuse to act under instructions from a client to\ndefeat what he believes to be an honest and just claim, by insisting\nupon the slips of the opposite party, by sharp practice, or special\npleading--in short, by any other means than a fair trial on the merits\nin open court. There is no professional duty, no virtual engagement with\nthe client, which compels an advocate to resort to such measures, to\nsecure success in any cause, just or unjust; and when so instructed, if\nhe believes it to be intended to gain an unrighteous object, he ought\nto throw up the cause, and retire from all connection with it, rather\nthan thus he a participator in other men's sins.\n\nMoreover, no counsel can with propriety and a good conscience express to\ncourt or jury his belief in the justice of his client's cause, contrary\nto the fact. Indeed, the occasions are very rare in which he ought to\nthrow the weight of his own private opinion into the scales in favor of\nthe side he has espoused. If that opinion has been formed on a statement\nof facts not in evidence, it ought not to be heard,--it would be illegal\nand improper in the tribunal to allow any force whatever to it; if on\nthe evidence only, it is enough to show from that the legal and moral\ngrounds on which such opinion rests. Some very sound and judicious\nobservations have been made by Mr. Whewell in a recent work on the\nElements of Moral and Political Science, which deserve to be quoted at\nlength;--\n\n\"Some moralists,\" says he, \"have ranked with the cases in which\nconvention supersedes the general rule of truth, an advocate asserting\nthe justice, or his belief in the justice, of his client's cause. Those\nwho contend for such indulgence argue that the profession is an\ninstrument for the administration of justice: he is to do all he can for\nhis client: the application of laws is a matter of great complexity and\ndifficulty: that the right administration of them in doubtful cases is\nbest provided for if the arguments on each side are urged with the\nutmost force. The advocate is not the judge.\n\n\"This may be all well, if the advocate let it be so understood. But if\nin pleading he assert his belief that his cause is just when he believes\nit unjust, he offends against truth, as any other man would do who in\nlike manner made a like assertion.\n\n\"Every man, when he advocates a case in which morality is concerned, has\nan influence upon his hearers, which arises from the belief that he\nshares the moral sentiments of all mankind. This influence of his\nsupposed morality is one of his possessions, which, like all his\npossessions, he is bound to use for moral ends. If he mix up his\ncharacter as an advocate with his character as a moral agent, using his\nmoral influence for the advocate's purpose, he acts immorally. He makes\nthe moral rule subordinate to the professional rule. He sells to his\nclient not only his skill and learning, but himself. He makes it the\nsupreme object of his life to be not a good man, but a successful\nlawyer.\n\n\"There belong to him, moreover, moral ends which regard his profession;\nnamely, to make it an institution fitted to promote morality. To raise\nand purify the character of the profession, so that it may answer the\nends of justice without requiring insincerity in the advocate, is a\nproper end for a good man who is a lawyer; a purpose on which he may\nwell and worthily employ his efforts and influence.\"[19]\n\nNothing need be added to enforce what has been so well said. The remark,\nhowever, may be permitted, that the expression of private opinion as to\nthe merits of a controversy often puts the counsel at fearful odds. A\nyoung man, unknown to the court or the jury, is trying his first case\nagainst a veteran of standing and character: what will the asseveration\nof the former weigh against that of the latter? In proportion, then, to\nthe age, experience, maturity of judgment, and professional character of\nthe man, who falsely endeavors to impress the court and jury with the\nopinion of his confidence in the justice of his case, in that proportion\nis there danger that injury will be done and wrong inflicted--in that\nproportion is there moral delinquency in him who resorts to it.\n\nMuch interest was excited some years ago in England, by the\ncircumstances attending the defence of Courvoisier, indicted for the\nmurder of Lord William Russell. The crime was one of great atrocity. It\ncame out after his conviction, that during the trial he had confessed\nhis guilt to his counsel, of whom the eminent barrister Charles\nPhillips, Esq., was one. Mr. Phillips was accused of having endeavored,\nnotwithstanding this confession, to fasten suspicion on the other\nservants in the house, to induce the belief that the police had\nconspired with them to manufacture evidence against the prisoner, and to\nimpress the jury with his own personal belief in the innocence of his\nclient. How far these accusations were just in point of fact was the\nsubject of lively discussion in the newspapers and periodicals of the\ntime.[20]\n\nThe language of counsel, on such occasions, during the excitement of the\ntrial, in the fervor of an address to the jury, is not to be calmly and\nnicely scanned in the printed report. The testimony of such a witness as\nBaron Parke, at the time and on the spot,--he, too, aware of the exact\nposition of Mr. Phillips--and that confirmed by Chief Justice Tindal,\nis conclusive. To charge him with _acting falsehood_, that is, with\npresenting the case as it appeared upon the testimony, earnestly and\nconfidently, means that he did not do that, which would have been worse\nthan retiring from his post.\n\nThe non-professional, as well as professional public in England,\nhowever, agreed in saying that he would not have been justified in\nwithdrawing from the case: he was still bound to defend the accused upon\nthe evidence; though a knowledge of his guilt, from whatever source\nderived, might and ought materially to influence the mode of the\ndefence. No right-minded man, professional or otherwise, will contend\nthat it would have been right in him to have lent himself to a defence,\nwhich might have ended, had it been successful, in bringing down an\nunjust suspicion upon an innocent person; or even to stand up and\nfalsely pretend a confidence in the truth and justice of his cause,\nwhich he did not feel. But there were those on this side of the\nAtlantic, who demurred to the conclusion, that an advocate is under a\nmoral obligation to maintain the defence of a man who has admitted to\nhim his guilt. Men have been known, however, under the influence of some\ndelusion, to confess themselves guilty of crimes which they had not\ncommitted: and hence, to decline acting as counsel in such a case, is a\ndangerous refinement in morals.[21] Nothing seems plainer than the\nproposition, that a person accused of a crime is to be tried and\nconvicted, if convicted at all, _upon evidence_, and _whether guilty or\nnot guilty_, if the evidence is insufficient to convict him, he has _a\nlegal right_ to be acquitted. The tribunal that convicts without\nsufficient evidence may decide according to the fact; but the next jury,\nacting on the same principle, may condemn an innocent man. If this be\nso, is not the prisoner in every case entitled to have the evidence\ncarefully sifted, the weak points of the prosecution exposed, the\nreasonable doubts presented which should weigh in his favor? And what\noffence to truth or morality does his advocate commit in discharging\nthat duty to the best of his learning and ability? What apology can he\nmake for throwing up his brief? The truth he cannot disclose; the law\nseals his lips as to what has thus been communicated to him in\nconfidence by his client. He has no alternative, then, but to perform\nhis duty. It is his duty, however, as an advocate merely, as Baron Parke\nhas well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE\nEVIDENCE. Beyond that, he is not bound to go in any case; in a case in\nwhich he is satisfied in his own mind of the guilt of the accused, he is\nnot justified in going.\n\nUnder all circumstances, the utmost candor should be used towards the\nclient. This is imperatively demanded alike by considerations of duty\nand interest. It is much better for a man occasionally to lose a good\nclient, than to fail in so plain a matter. It is nothing but selfishness\nthat can operate upon a lawyer when consulted to conceal from the party\nhis candid opinion of the merits, and the probable result. It is fair\nthat he should know it; for he may not choose to employ a man whose\nviews may operate to check his resorting to all lawful means to effect\nsuccess. Besides, most men, when they consult an attorney, wish a candid\nopinion; it is what they ask and pay for. It is true, that it is often\nvery hard to persuade a man that he has not the best side of a lawsuit:\nhis interest blinds his judgment: his passion will not allow him to\nreflect calmly, and give due weight to opposing considerations. There\nare many persons who will go from lawyer to lawyer with a case, until\nthey find one who is willing to express an opinion which tallies with\ntheir own. Such a client the lawyer, who acts firmly upon the principle\nto which I have adverted, will now and then lose; but even such an one,\nwhen finally unsuccessful, as the great probability is that he will be,\nwhen he comes to sit down and calculate all that he has lost in time,\nmoney, and character, by acting contrary to the advice first given, will\nrevert to the candid and honest opinion he then received, and determine,\nif ever he gets into another difficulty of the kind, to resort to that\nattorney, and abide by his advice. Thus may a man build up for himself a\ncharacter far outweighing, even in pecuniary value, all such paltry\nparticular losses; it is to such men that the best clients resort; they\nhave the most important and interesting lawsuits, and enjoy by far the\nmost lucrative practice.\n\nA very important part of the advocate's duty is to moderate the passions\nof the party, and where the case is of a character to justify it, to\nencourage an amicable compromise of the controversy. It happens too\noften at the close of a protracted litigation that it is discovered,\nwhen too late, that the play has not been worth the candle, and that it\nwould have been better, calculating everything, for the successful party\nnever to have embarked in it--to have paid the claim, if defendant, or\nto have relinquished it, if he was plaintiff. Counsel can very soon\ndiscover whether such is likely to be the case, and it cannot be doubted\nwhat their plain duty is under such circumstances.\n\nBesides this, the advocate is bound in honor, as well as duty, to\ndisclose to the client at the time of the retainer, every circumstance\nof his own connection with the parties or prior relation to the\ncontroversy, which can or may influence his determination in the\nselection of him for the office. An attorney is bound to disclose to his\nclient every adverse retainer, and even every prior retainer, which may\naffect the discretion of the latter. No man can be supposed to be\nindifferent to the knowledge of facts, which work directly on his\ninterests, or bear on the freedom of his choice of counsel. When a\nclient employs an attorney, he has a right to presume, if the latter be\nsilent on the point, that he has no engagements which interfere, in any\ndegree, with his exclusive devotion to the cause confided to him; that\nhe has no interest which may betray his judgment or endanger his\nfidelity.[22]\n\nIt is in some measure the duty of counsel to be the keeper of the\nconscience of the client; not to suffer him, through the influence of\nhis feelings or interest, to do or say anything wrong in itself, and of\nwhich he would himself afterwards repent. This guardianship may be\ncarefully, and at the same time kindly exerted. One particular will be\nmentioned in which its exercise is frequently called for. The client\nwill be often required, in the course of a cause, to make affidavits of\nvarious kinds. There is no part of his business with his client, in\nwhich a lawyer should be more cautious, or even punctilious, than this.\nHe should be careful lest he incur the moral guilt of subornation of\nperjury, if not the legal offence. An attorney may have communications\nwith his client in such a way, in instructing him as to what the law\nrequires him to state under oath or affirmation, in order to accomplish\nany particular object in view, as to offer an almost irresistible\ntemptation and persuasion to stretch the conscience of the affiant up to\nthe required point. Instead of drawing affidavits, and permitting them\nto be sworn to as a matter of course, as it is to be feared is too often\nthe case, counsel should on all occasions take care to treat an oath\nwith great solemnity, as a transaction to be very scrupulously watched,\nbecause involving great moral peril as well as liability to public\ndisgrace and infamy. It lies especially in the way of the profession to\ngive a high tone to public sentiment upon this all-important subject,\nthe sacredness of an oath. It is always the wisest and best course, to\nhave an interview with the client, and draw from him by questions,\nwhether he knows the facts which you know he is required to state, so\nthat you may judge whether, as a conscientious man, he ought to make\nsuch affidavit.\n\nAnother particular may be adverted to: the attempt to cover property\nfrom the just demands of creditors. It is to be feared that gentlemen\nof the Bar sometimes shut their eyes and, under the influence of\nfeelings of commiseration for an unfortunate client, feign not to see\nwhat is really very palpable to everybody else. Surely they ought never\nto sanction, directly or indirectly such shams, especially when the\nmachinery of a judicial sale is introduced more securely to accomplish\nthe object. A purchase is made in the name of a friend for the debtor's\nbenefit and with the debtor's money, though it may be hard to make that\nappear by legal evidence. When advice is asked, as it sometimes is, how\nsuch a thing may be safely and legally done, the idea held prominently\nbefore the party by his counsel should be, that his estate is the\nproperty of his creditors, and that nothing but their consent will\njustify an appropriation of any part of it to his benefit.\n\nLawyers too may very materially assist in giving a high tone to public\nsentiment in the matter of stay and exemption laws. It is not every case\nin which a man has a legal that he has a moral right to claim the\nbenefit of such laws. When a debtor with ample means to pay only wants\nto harass and worry his creditor, who has resorted to legal process and\nobtained a judgment, by keeping him out of his money, as it is often\nexpressed, as long as he can; or where he wishes to take advantage of\nhard times to make more than legal interest, or with concealed means\nunknown to the execution plaintiff, claims the exemption: these are\ncases which counsel ought to hold up in their proper light to those whom\nthey advise, and wash their hands of the responsibility of them.\nAccording to the Jewish law, the cloak or outer garment, which was\ngenerally used by the poorer classes as a covering during sleep, could\nnot be retained by the creditor to whom it had been given in pledge, and\nof course was exempt by law from seizure for debt; and our blessed\nSaviour, in his sermon on the mount, has been supposed to refer to this\nexemption law, when he said: \"And if any man will sue thee at the law\nand take away thy coat, let him have thy cloak also;\" that is, confine\nnot yourself in your transactions with your fellow-men to giving them\nsimply the strict measure of their legal rights: give them all that is\nhonestly theirs as far as you have ability, whether the law affords them\na remedy or not. There have been some noble instances of bankrupts who,\nupon subsequently retrieving their fortunes, have fully discharged all\ntheir old debts, principal and interest, though released or barred by\nthe Statute of Limitations; but such instances would be more common if\nthe spirit of the high and pure morality, which breathes through the\nsermon on the mount, prevailed more extensively.\n\nAn important clause in the official oath is \"to delay no man's cause for\nlucre or malice.\" It refers, no doubt, primarily, to the cause intrusted\nto the attorney, and prohibits him from resorting to such means for the\npurpose of procuring more fees, or of indulging any feeling he may have\nagainst his client personally. Such conduct would be a clear case of a\nviolation of the oath. But it is a question, also, whether the case\ngenerally, in which he is retained, is not comprehended.[23] How far,\nthen, can he safely go in delaying the cause for the benefit of, and in\npursuance of the instructions of his client? A man comes to him and\nsays: \"I have no defence to this claim; it is just and due, but I have\nnot the means to pay it; I want all the time you can get for me.\" The\nbest plan in such instances, is, no doubt, at once frankly to address\nhis opponent, and he will generally be willing to grant all the delay\nwhich he knows, in the ordinary course can be gained, and perhaps more,\nas a consideration for his own time and trouble saved. If, however, that\nbe impracticable, it would seem that the suitor has a right to all the\ndelay, which is incident to the ordinary course of justice. The counsel\nmay take all means for this purpose, which do not involve artifice or\nfalsehood in himself or the party. The formal pleas put in are not to be\nconsidered as false in this aspect, except such as are required to be\nsustained by oath. In an ejectment, for example, an appearance need not\nbe entered until the second term, the legislature having seen fit to\ngive that much respite to the unjust possessor of real estate. But to\nstand by and see a client swear off a case on account of the absence of\na material witness, when he knows that no witness can be material; or\nfurther to make affidavit that his appeal or writ of error is not\nintended for delay, when he knows that it is intended for nothing else,\nno high-minded man will be privy or consent to such actions, much less\nhave any active participation in them.\n\nSubject, however, to the qualifications which have been stated, when a\ncause is undertaken, the great duty which the counsel owes to his\nclient, is an immovable fidelity. Every consideration should induce an\nhonest and honorable man to regard himself, as far as the cause is\nconcerned, as completely identified with his client. The criminal and\ndisgraceful offence of taking fees of two adversaries, of allowing\nhimself to be approached corruptly, whether directly or indirectly, with\na view to conciliation, ought, like parricide in the Athenian law, to be\npassed over in silence in a code of professional ethics.[24] All\nconsiderations of self should be sunk by the lawyer in his duty to the\ncause. The adversary may be a man of station, wealth, and influence; his\ngood will may be highly valuable to him; his enmity may do him great\ninjury. He should not permit such thoughts to arise in his mind. He\nshould do his duty manfully, without fear, favor, or affection.\n\nAt the same time, let it be observed, that no man ought to allow himself\nto be hired to abuse the opposite party. It is not a desirable\nprofessional reputation to live and die with, that of a rough tongue,\nwhich makes a man to be sought out, and retained to gratify the\nmalevolent feelings of a suitor in hearing the other side well lashed\nand vilified. An opponent should always be treated with civility and\ncourtesy, and if it be necessary to say severe things of him or his\nwitnesses, let it be done in the language, and with the bearing, of a\ngentleman. There is no point in which it becomes an advocate to be more\ncautious, than in his treatment of the witnesses. In general, fierce\nassaults upon them, unnecessary trifling with their feelings, rough and\nuncivil behavior towards them in cross-examination, whilst it may\nsometimes exasperate them to such a pitch, that they will perjure\nthemselves in the drunkenness of their passion, still, most generally\ntells badly on the jury. They are apt to sympathize with a witness under\nsuch circumstances.[25] It is as well unwise as unprofessional, in\ncounsel, to accuse a witness of having forsworn himself, unless some\ngood ground, other than the mere instruction of the client, is present\nin the evidence to justify it. He may sift most searchingly, and yet\nwith a manner and courtesy which affords no ground for irritation,\neither in witness or opponent; and in such case, if his questions\nproduce irritation, it is a circumstance which will weigh in his favor.\n\nThe practitioner owes to his client, with unshaken fidelity, the\nexertion of all the industry and application of which he is capable to\nbecome perfect master of the questions at issue, to look at them in all\ntheir bearings, to place himself in the opposite interest, and to\nconsider and be prepared as far as possible, for all that may be said or\ndone on the contrary part. The duty of full and constant preparation, is\ntoo evident to require much elaboration. It is better, whenever it is\npossible to do so, to make this examination immediately upon the\nretainer, and not to postpone it to later stages in the proceedings. The\nopportunity is often lost, of ascertaining facts, and securing evidence,\nfrom putting off till too late, the business of understanding thoroughly\nall that it will be necessary to adduce on the trial. In this way, a\nlawyer will attain what is very important, that his client may be always\nprepared, as well as himself, have his attention alive to his case, know\nwhat witnesses are important, and keep a watch upon them, so that their\ntestimony may not be lost, and upon the movements of his adversary, lest\nhe should at any time be taken by surprise. It would be an excellent\nrule for him, at short stated periods, to make an examination of the\nrecord of every case which he has under his charge. It always operates\ndisadvantageously to an attorney in the eyes of those who employ him, as\nwell as the public, when he fails in consequence of some neglect or\noversight. Frequent applications to the court, to relieve him from the\nconsequences of his inattention, tell badly on his character and\nbusiness. He may be able to make very plausible excuses; but the public\ntake notice, that some men with large business never have occasion to\nmake such excuses, and that other men with less, are constantly making\nthem. Every instance of the kind helps to make up such a character. A\nyoung man should be particularly cautious, and dread such occurrences as\nhighly injurious to his prospects. If he escapes the notice and\nanimadversion of his constituent, and the legal consequences of his\nneglect, by the intervention of the court, or the indulgence of his\nopponent, the members of the Bar are lynx-eyed in observing such things.\n\nIt may appear like digressing from our subject, to speak of such\nqualities as attention, accuracy, and punctuality, but like the minor\nmorals of common life, they are little rills which at times unite and\nform great rivers. A life of dishonor and obscurity, if not ignominy,\nhas often taken its rise from the fountain of a little habit of\ninattention and procrastination. System is everything. It can accomplish\nwonders. By this alone, as by a magic talisman, may time be so\neconomized that business can be attended to and opportunities saved for\nstudy, general reading, exercise, recreation, and society. \"A man that\nis young in years,\" says Lord Bacon, \"may be old in hours, if he has\nlost no time.\" Hurry and confusion result from the want of system; and\nthe mind can never be clear when a man's papers and business are in\ndisorder. It is recorded of the pensionary De Witt, of the United\nProvinces, who fell a victim to the fury of the populace in the year\n1672, that he did the whole business of the republic, and yet had time\nleft for relaxation and study in the evenings. When he was asked how he\ncould possibly bring this to pass, his answer was, that \"nothing was so\neasy; for that it was only doing one thing at a time, and never putting\noff anything till to-morrow that could he done to-day.\" \"This steady and\nundissipated attention to one object,\" remarks Lord Chesterfield, in\nrelating this anecdote, \"is a sure mark of a superior genius.\" It is of\nthe highest importance, also, that a lawyer should in early professional\nlife, cultivate the habit of accuracy. It is a great advantage over\nopposing counsel,--a great recommendation in the eyes of intelligent\nmercantile and business men. A professional note to a merchant\ncarelessly written will often of itself produce an unfavorable\nimpression on his mind; and that impression he may communicate to many\nothers. The importance of a good handwriting cannot be overrated. A\nplain legible hand every man can write who chooses to take the pains. A\ngood handwriting is a passport to the favor of clients, and to the good\ngraces of judges, when papers come to be submitted to them. It would be\na good rule for a young lawyer, though at first perhaps irksome and\ninconvenient, never to suffer a letter or paper to pass from his hands\nwith an erasure or interlineation. The time and trouble it may cost at\nthe outset will be repaid in the end by the habit he will thereby\nacquire of transacting his business with care, neatness, and accuracy.\n\nHe cannot be faithful to his clients unless he continues to be a hard\nstudent of the learning of his profession. Not merely that he should\nthoroughly investigate the law applicable to every case which may be\nintrusted to him; though that, besides its paramount necessity to enable\nhim to meet the responsibility he has assumed to that particular client,\nwill be the subsidiary means of important progress in his professional\nacquisitions. \"Let any person,\" says Mr. Preston, \"study one or two\nheads of the law fully and minutely, and he will have laid the\nfoundation or acquired the aptitude for comprehending other heads of\nthe law.\"[26] But, besides this, he should pursue the systematic study\nof his profession upon some well-matured plan. When admitted to the Bar,\na young man has but just begun, not finished, his legal education. If he\nhave mastered some of the most general elementary principles, and has\nacquired a taste for the study, it is as much as can be expected from\nhis clerkship. There are few young men who come to the Bar, who cannot\nfind ample time in the first five or seven years of their novitiate, to\ndevote to a complete acquisition of the science they profess, if they\ntruly feel the need of it, and resolve to attain it. The danger is great\nthat from a faulty preparation,--from not being made to see and\nappreciate the depth, extent, and variety of the knowledge they are to\nseek, they will mistake the smattering they have acquired for profound\nattainments. The anxiety of the young lawyer is a natural one at once to\nget business--as much business as he can. Throwing aside his books, he\nresorts to the many means at hand of gaining notoriety and attracting\npublic attention, with a view of bringing clients to his office. Such an\none in time never fails to learn much by his mistakes, but at a sad\nexpense of character, feeling, and conscience. He at last finds that in\nlaw, as in every branch of knowledge, \"a little learning is a dangerous\nthing;\" that what he does not know falsifies often in its actual\napplication that which he supposed he certainly did know; and after the\nmost valuable portion of his life has been frittered away upon objects\nunworthy of his ambition, he is too apt to conclude that it is now too\nlate to redeem his time; he finds that he has lost all relish for\nsystematic study, and when he is driven to the investigation of\nparticular questions, is confounded and embarrassed--unable to thread\nhis way through the mazes of authorities, to reconcile apparently\nconflicting cases, or deduce any satisfactory conclusion from them--in\nshort, he has no greater aptitude, accuracy, and discrimination than\nwhen he set out in the beginning of his studies. No better advice can\nbe given to a young practitioner, than to confine himself generally to\nhis office and books, even if this should require self-denial and\nprivation, to map out for himself a course of regular studies, more or\nless extended, according to circumstances, to aim at mastering the works\nof the great luminaries of the science, Coke, Fearne, Preston, Powell,\nSugden, and others, not forgetting the maxim, _melius est petere fontes\nquam sectari rivulos_, and to investigate for himself the most important\nand interesting questions, by an examination and research of the\noriginal authorities. \"He that reacheth deepest seeth the amiable and\nadmirable, secrets of the law,\"[27] and thus may the student \"proceed in\nhis reading with alacrity, and set upon and know how to work into with\ndelight these rough mines of hidden treasure.\"[28]\n\nIt may be allowed here to commend to most serious consideration, the\nremarks of one of the most eminent of the profession--Horace Binney--a\ngentleman of our own Bar, whose example enforces and illustrates their\nvalue: \"There are two very different methods of acquiring a knowledge of\nthe laws of England, and by each of them, men have succeeded in public\nestimation to an almost equal extent. One of them, which may be called\nthe old way, is a methodical study of the general system of law, and of\nits grounds and reasons, beginning with the fundamental law of estates\nand tenures, and pursuing the derivative branches in logical succession,\nand the collateral subjects in due order; by which the student acquires\na knowledge of principles that rule in all departments of the science,\nand learns to feel as much as to know what is in harmony with the system\nand what not. The other is, to get an outline of the system, by the aid\nof commentaries, and to fill it up by the desultory reading of treatises\nand reports, according to the bent of the student, without much shape or\ncertainty in the knowledge so acquired, until it is given by\ninvestigation in the course of practice. A good deal of law may be put\ntogether by a facile or flexible man, in the second of these modes, and\nthe public are often satisfied; but the profession itself knows the\nfirst, by its fruits, to be the most effectual way of making a great\nlawyer.\"[29]\n\nSuch a course of study as is here recommended, is not the work of a day\nor a year. In the meantime let business seek the young attorney; and\nthough it may come in slowly, and at intervals, and promise in its\ncharacter neither fame nor profit, still, if he bears in mind that it is\nan important part of his training, that he should understand the\nbusiness he does thoroughly, that he should especially cultivate, in\ntransacting it, habits of neatness, accuracy, punctuality, and despatch,\ncandor towards his client, and strict honor towards his adversary, it\nmay be safely prophesied that his business will grow as fast as it is\ngood for him that it should grow; while he gradually becomes able to\nsustain the largest practice, without being bewildered and overwhelmed.\n\nLet him be careful, however, not to settle down into a mere lawyer. To\nreach the highest walks of the profession, something more is needed. Let\npolite literature be cultivated in hours of relaxation. Let him lose not\nhis acquaintance with the models of ancient taste and eloquence. He\nshould study languages, as well from their practical utility in a\ncountry so full of foreigners, as from the mental discipline, and the\nrich stores they furnish. He should cultivate a pleasing style, and an\neasy and graceful address. It may be true, that in a \"court of justice,\nthe veriest dolt that ever stammered a sentence, would be more attended\nto, with a case in point, than Cicero with all his eloquence,\nunsupported by authorities,\"[30] yet even an argument on a dry point of\nlaw, produces a better impression, secures a more attentive auditor in\nthe judge, when it is constructed and put together with attention to the\nrules of the rhetorical art; when it is delivered, not stammeringly, but\nfluently; when facts and principles, drawn from other fields of\nknowledge, are invoked to support and adorn it; when voice, and gesture,\nand animation, give it all that attraction which earnestness always and\nalone imparts. There is great danger that law reading, pursued to the\nexclusion of everything else, will cramp and dwarf the mind, shackle it\nby the technicalities with which it has become so familiar, and disable\nit from taking enlarged and comprehensive views even of topics falling\nwithin its compass as well as of those lying beyond its legitimate\ndomain. An amusing instance of this is said to have occurred in the\ndebate in the House of Commons, on the great question as to the right of\nthe Parliament of Great Britain to tax the Colonies. At the close of the\ndiscussion, in which Fox and Burke, as well as others, had distinguished\nthemselves, a learned lawyer arose and said that the real point on which\nthe whole matter turned, had been unaccountably overlooked. In the midst\nof deep silence and anxious expectation from all quarters of the House,\nhe proceeded to show that the lands of the Colonies had been originally\ngranted by the Crown, and were held _ut de honore_, as of the Manor of\nGreenwich, in the county of Kent; and thence he concluded that as the\nManor of Greenwich was represented in Parliament, so the lands of the\nNorth American Colonies (by tenure, a part of the Manor) were\nrepresented by the knights of the shire for Kent.[31]\n\nLet me remark, too, before hastening to another topic more immediately\nconnected with the duties of active professional life, that the\ncultivation of a taste for polite literature has other importance\nbesides its value as a preparation and qualification for practice and\nforensic contests. Nothing is so well adapted to fill up the interstices\nof business with rational enjoyment, to make even a solitary life\nagreeable, and to smooth pleasantly and honorably the downward path of\nage. The mental vigor of one who is fond of reading, other things being\nequal, becomes impaired at a much later period of life. The lover of\nbooks has faithful companions and friends, who will never forsake him\nunder the most adverse circumstances. \"As soon as I found,\" said Sir\nSamuel Romilly, \"that I was to be a busy lawyer for life, I strenuously\nresolved to keep up my habit of non-professional reading; for I had\nwitnessed so much misery in the last years of many great lawyers, whom I\nhad known, from their loss of all taste for books, that I regarded their\nfate as my warning.\" Mr. Gibbon was wont to say that he would not\nexchange his love of reading for the wealth of the Indies. It is indeed\na fortune, of which the world's reverses can never deprive us. It\nfortifies the soul against the calamities of life. It moderates, if it\nis not strong enough to govern and control the passions. It favors not\nthe association of the cup, the dice-box, or the debauch. The atmosphere\nof a library is uncongenial with them. It clings to home, nourishes the\ndomestic affections, and the hopes and consolations of religion.\n\nAnother very delicate and often embarrassing question in the relation of\nattorney and client is in regard to the subject of compensation for\nprofessional services.\n\nIn all countries advanced in civilization, and whose laws and manners\nhave attained any degree of refinement, there has arisen an order of\nadvocates devoted to prosecuting or defending the lawsuits of others.\nBefore the tribunals of Athens, although the party pleaded his own\ncause, it was usual to have the oration prepared by one of an order of\nmen devoted to this business, and to compensate him liberally for his\nskill and learning. Many of the orations of Isocrates, which have been\nhanded down to us, are but private pleadings of this character. He is\nsaid to have received one fee of twenty talents, about eighteen\nthousand dollars of our money, for a speech that he wrote for Nicocles,\nking of Cyprus. Still, from all that appears, the compensation thus\nreceived was honorary or gratuitous merely. Among the early institutions\nof Rome, the relation of patron and client, which existed between the\npatrician and plebeian, bound the former to render the latter assistance\nand protection in his lawsuits, with no other return than the general\nduty, which the client owed to his patron. As every patrician could not\nbe a sufficiently profound lawyer to resolve all difficulties, which\nmight arise in the progress of a complex system of government and laws,\nthough he still might accomplish himself in the art of eloquence, there\narose soon a new order of men, the jurisconsults. They also received no\ncompensation. On the public days of market, or assembly, the masters of\nthe art were seen walking in the forum, ready to impart the needful\nadvice to the meanest of their fellow-citizens, from whose votes on a\nfuture occasion, they might solicit a grateful return. As their years\nand honors increased, they seated themselves at home, on a chair or\nthrone, to expect with patient gravity the visits of their clients, who\nat the dawn of day, from the town and country, began to thunder at their\ndoors.[32] Often, indeed, the patron was able in his own person to\nexercise the office both of advocate and counsellor. It was only in the\nmore glorious, because the more virtuous, period of the republic, that\nthe relation was sustained upon so honorable a foundation. In the\nprogress of society, the business of advocating causes became a distinct\nprofession; and then it was usual to pay a fee in advance, which was\ncalled a gratuity or present. As this was a mere honorary recompense,\nthe client was under no legal obligation to pay it. But the result\nnecessarily was, that if the usual present was not given, the advocate\ndid not consider himself bound in honor to undertake the advocation of\nthe cause before the courts. Afterwards, Marcus Cincius Alimentus, the\ntribune of the people, procured the passage of the law known as the\n_Cincian_ law, prohibiting the patron or advocate from receiving any\nmoney or other present for any cause; and annulling all gratuities or\npresents made by the client to the patron or advocate. But as no penalty\nwas prescribed for the breach of the law, it of course became a dead\nletter. The Emperor Augustus afterwards re-enacted the Cincian law, and\nprescribed penalties for its breach. But towards the end of his reign,\nthe advocates were again authorized to receive fees or presents from\ntheir clients. The Emperor Tiberius also permitted them to receive such\nforced gratuities. This led to the abuse referred to by Tacitus, and\ninduced the Senate to insist upon the enforcement of the re-enactment of\nthe Cincian law, or rather a law limiting the amount of the fees of\nadvocates.[33] Nero revoked the law of Claudian, which was subsequently\nre-enacted by the Emperor Trajan, with the additional restriction that\nthe advocate should not be permitted to receive his fee or gratuity,\nuntil the cause was decided. The younger Pliny mentions a law, which\nauthorized the advocate, after the pleadings in the cause had been made\nand the judgment had been given, to receive the fee, which might be\nvoluntarily offered by the client, either in money or a promise to pay.\nErskine, in his Institutes of the Law of Scotland, understands the law\nin the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit\nfor the fee of a physician or advocate without a previous agreement for\na specific sum.[34]\n\nThe consequences may be best told in the impressive language of the\nhistorian of the Decline and Fall of the Empire: \"The noble art, which\nhad once been preserved as the sacred inheritance of the patricians, was\nfallen into the hands of freedmen and plebeians, who, with cunning\nrather than with skill, exercised a sordid and pernicious trade. Some of\nthem procured admittance into families for the purpose of fomenting\ndifferences, of encouraging suits, and of preparing a harvest of gain\nfor themselves or their brethren. Others, recluse in their chambers,\nmaintained the dignity of legal professors, by furnishing a rich client\nwith subtleties to confound the plainest truth, and with arguments to\ncolor the most unjustifiable pretensions. The splendid and popular class\nwas composed of the advocates, who filled the Forum with the sound of\ntheir turgid and loquacious rhetoric. Careless of fame and of justice,\nthey are described for the most part, as ignorant and rapacious guides,\nwho conducted their clients through a maze of expense, of delay, and of\ndisappointment; from whence, after a tedious series of years, they were\nat length dismissed when their patience and fortune were almost\nexhausted.\"[35] Is not this probably the history of the decline of the\nprofession in all countries from an honorable office to a money-making\ntrade?\n\nIt is the established law of England, that a counsellor or barrister\ncannot maintain a suit for his fees.[36] There is in that country a\nclass of mere attorneys, who attend to legal business out of court, who\nbring suits and conduct them up to issue; but who are not allowed to\nspeak in court. This latter privilege is confined to serjeants and\nbarristers. Attorneys are regulated by statute, and are subject to many\nrestrictions; having a rate of fees, settled either by statute or\nestablished usage; and required to be fixed by the taxation of an\nofficer of the court before a suit can be brought for them. Barristers\nare admitted only under the regulations established by the various inns\nof court; and the serjeants, who long had the monopoly of the Bar of the\nCommon Pleas, are appointed by patent from the king. A barrister cannot\nbe an attorney.[37]\n\nIn this country, there is in general no distinction between attorneys\nand counsellors. The same persons fulfil the duties of both. Hence no\ndifference is made between their right to recover compensation for\nservices in the one capacity or the other.[38] In Pennsylvania, it was\nheld at one time that an attorney could not recover, without an express\npromise, anything beyond the trifling and totally inadequate sum\nprovided in the fee-bill. That pure and eminent jurist Chief Justice\nTilghman thought that the policy of refusing a legal remedy for anything\nbeyond that had not been adopted without great consideration.[39] He\nstands not alone in the opinion that it has been neither for the honor\nnor profit of the Bar to depart from the ancient rule.[40] It has been\ndeparted from in this State, and the early decision overruled, however;\nand it must be frankly admitted, that the current of decisions in our\nsister States is in the same way.[41]\n\nIt is supposed that the ancient rule was artificial in its structure,\nand practically unjust,--that it is wholly inconsistent with our ideas\nof equality to suppose that the business or profession, by which any one\nearns the daily bread of himself or of his family, is so much more\nhonorable than the business of other members of the community as to\nprevent him from receiving a fair compensation for his services on that\naccount.[42] It has been pronounced ridiculous to attempt to perpetuate\na monstrous legal fiction, by which the hard-working lawyers of our day,\ntoiling till midnight in their offices, are to be regarded in the eye of\nthe law in the light of the patrician jurisconsults of ancient Rome,\nwhen\n\n      ---- dulce diu fuit et solemne, reclusa\n    Mane domo vigilare, clienti promere jura,--\n\nand who at daybreak received the early visits of their humble and\ndependent clients, and pronounced with mysterious brevity the oracles of\nthe law.[43]\n\nThese are arguments which are more plausible than sound: they are\nimposing, but not solid. The question really is, what is best for the\npeople at large,--what will be most likely to secure them a high-minded,\nhonorable Bar? It is all-important that the profession should have and\ndeserve that character. A horde of pettifogging, barratrous,\ncustom-seeking, money-making lawyers, is one of the greatest curses\nwith which any state or community can be visited. What more likely to\nbring about such a result than a decision, which strips the Bar of its\ncharacter as a learned profession, on the principle avowed by one court,\nthat it is now a calling as much as any mechanical art,--or by another,\nin effect, that the order of things is in the present condition of\nsociety reversed, and clients are really the _patrons_ of their\nattorneys? A more plausible reason is that the client is safer from the\noppression of extortionate counsel, by putting both upon the equal\nfooting of legal right and obligation. It would appear, however, better\nthat the parties should make an express agreement before or at the time\nof retainer, or that the amount should be left to the justice of the\ncounsel, and the honor and liberality of the client subsequently. Every\njudge, who has ever tried a case between attorney and client, has felt\nthe delicacy and difficulty of saying what is the measure of just\ncompensation. It is to be graduated, according to a high legal\nauthority, with a proper reference to the nature of the business\nperformed by the counsel for the client, and his standing in his\nprofession for learning and skill; whereby the value of his services is\nenhanced to his client.[44] Is then the standing and character of the\ncounsel in his profession for learning and skill to be a question of\nfact to be determined by the jury in every case in which a lawyer sues\nhis client? How determined, if necessary to the decision of the\nquestion? Not surely by the crude opinions of the jurors; but by\ntestimony of members of the same profession on the subject. This never\nis done; it would be a very difficult as well as delicate question for a\nlawyer to pronounce upon the standing of a professional brother. The\nmost that can be done is to call gentlemen to say what they would have\nconsidered reasonable for such services, had they been performed by\nthemselves. Some may testify up to a very high point, from an excusable,\nthough foolish vanity; others to a very low one, from the despicable,\ndesire of attracting custom to a cheap shop.[45] No one can ever have\nseen such a cause tried without feeling, that the Bar had received by it\nan impulse downwards in the eyes of bystanders and the community. The\ncase is thrown into the jury-box, to be decided at haphazard, according\nas the twelve men may chance to think or feel. He, who narrowly watches\nsuch controversies, cannot fail to see that the right of a counsel to\nenforce his claim for legal compensation is far from being calculated to\nprotect the client from oppression and extortion.\n\nIt is not worth while, however, to quarrel with the decision. Let us\ninquire rather what should be the course of counsel, without regard to\nit. He certainly owes it to his profession, as well as himself, that\nwhen the client has the ability, his services should be recompensed; and\nthat according to a liberal standard.[46] There are many cases, in which\nit will be his duty, perhaps more properly his privilege, to work for\nnothing. It is to be hoped, that the time will never come, at this or\nany other Bar in this country, when a poor man with an honest cause,\nthough without a fee, cannot obtain the services of honorable counsel,\nin the prosecution or defence of his rights. But it must be an\nextraordinary--a very peculiar case--that will justify an attorney in\nresorting to legal proceedings, to enforce the payment of fees. It is\nbetter that he should be a loser, than have a public contest upon the\nsubject with a client. The enlightened Bar of Paris, have justly\nconsidered the character of their order involved in such proceedings;\nand although by the law of France, an advocate may recover for his fees\nby suit, yet they regard it as dishonorable, and those who should\nattempt to do it, would be immediately stricken from the roll of\nattorneys.[47]\n\nRegard should be had to the general usage of the profession, especially\nas to the rates of commission to be charged for the collection of\nundefended claims. Except in this class of cases, agreements between\ncounsel and client that the compensation of the former shall depend upon\nfinal success in the lawsuit--in other words contingent fees--however\ncommon such agreements may be, are of a very dangerous tendency, and to\nbe declined in all ordinary cases. In making his charge, after the\nbusiness committed to him has been completed, as an attorney may well\ntake into consideration the general ability of his client to pay, so he\nmay also consider the pecuniary benefit, which may have been derived\nfrom his services. For a poor man, who is unable to pay at all, there\nmay be a general understanding that the attorney is to be liberally\ncompensated in case of success. What is objected to, is an agreement to\nreceive a certain part or proportion of the sum, or subject-matter, in\nthe event of a recovery, and nothing otherwise.\n\nIt is unnecessary to inquire here whether such a contract is void as\nchampertous, and contrary to public policy. None of the English statutes\non the subject of champerty have been reported as in force here; but it\nwas once a question whether it was not an offence at common law,\nindependently altogether, of any statute enactment. Enlightened judges\nin several of our sister States have so considered it. \"The purchase of\na lawsuit,\" says Chancellor Kent, \"by an attorney, is champerty in its\nmost odious form; and it ought equally to be condemned on principles of\npublic policy. It would lead to fraud, oppression, and corruption. As a\nsworn minister of the courts of justice, the attorney ought not to be\npermitted to avail himself of the knowledge he acquires in his\nprofessional character, to speculate in lawsuits. The precedent would\ntend to corrupt the profession, and produce lasting mischief to the\ncommunity.\"[48] \"This is not the time nor place,\" says Chief Justice\nGibson, \"to discuss the legality of contingent fees; though it be clear\nthat if the British statutes of champerty were in force here, such fees\nwould be prohibited by them. But a contract of the sort is certainly not\nto be encouraged by implication, from a questionable usage, nor\nestablished by less than a positive stipulation.\"[49] A contract to\nallow a compensation for services in procuring the passage of a private\nAct of Assembly, has been held to be unlawful and void, as against\npublic policy.[50] \"The practice,\" said Judge Rogers, in delivering the\nopinion of the court, \"which has generally obtained in this State, to\nallow a contingent compensation for legal services, has been a subject\nof regret; nor am I aware of any direct decision by which the practice\nhas received judicial sanction in our courts.\" The case of _Ex parte\nPlitt_,[51] however, recognizes fully the lawfulness of contingent fees,\nthough in his opinion Judge Kane says: \"It is not a practice to be\ngenerally commended, exposing honorable men not unfrequently to\nmisapprehension and illiberal remark, and giving the apparent sanction\nof their example to conduct, which they would be among the foremost to\nreprehend. Such contracts may sometimes be necessary in a community such\nas that of Pennsylvania has been, and perhaps as it is yet; and when\nthey have been made in abundant good faith--_uberrima fide_--without\nsuppression or reserve of fact or exaggeration of apprehended\ndifficulties, or under influence of any sort or degree; and when the\ncompensation bargained for is absolutely just and fair, so that the\ntransaction is characterized throughout by 'all good fidelity to the\nclient,' the court will hold such contracts to be valid. But it is\nunnecessary to say, that such contracts, as they can scarcely be\nexcepted from the general rule, which denounces as suspicious the\ndealings of fiduciaries with those under their protection, must undergo\nthe most exact and jealous scrutiny before they can expect the judicial\nratification.\" Finally, the question of law may be considered as at rest\nin Pennsylvania by the decision of the Supreme Court in Patten _v._\nWilson,[52] which recognized an agreement between counsel and client to\npay him out of the verdict as an equitable assignment, and gave effect\nto it as against an attaching creditor.\n\nIt is not, however, with the lawfulness, but with the policy and\nmorality of the practice, that we are now dealing. Admitting its\nlegality, is it consistent with that high standard of moral excellence,\nwhich the members of this profession should ever propose to themselves?\n\nLet us look at what would be the results of such a practice, if it\nbecame general. If these are bad, if its tendency is to corrupt and\ndegrade the character of the profession, then, however confident any man\nmay feel in his moral power to ward off its evil influences from his own\ncharacter and conduct, he should be careful not to encourage and give\ncountenance to it by his example.\n\nIt is one of that class of actions, which in particular instances may be\nindifferent; but their morality is to be tested by considering what\nwould be the consequences of their general prevalence.\n\nIt is to be observed, then, that such a contract changes entirely the\nrelation of counsel, to the cause. It reduces him from his high position\nof an officer of the court and a minister of justice, to that of a party\nlitigating his own claim. Having now a deep personal interest in the\nevent of the controversy, he will cease to consider himself subject to\nthe ordinary rules of professional conduct. He is tempted to make\nsuccess, at all hazards and by all means, the sole end of his exertions.\nHe becomes blind to the merits of the case, and would find it difficult\nto persuade himself, no matter what state of facts might be developed in\nthe progress of the proceedings, as to the true character of the\ntransaction, that it was his duty to retire from it.\n\nIt places his client and himself in a new and dangerous relation. They\nare no longer attorney and client, but partners. He has now an interest,\nwhich gives him a right to speak as principal, not merely to advise as\nto the law, and abide by instructions. It is either unfair to him or\nunfair to the client. If he thinks the result doubtful, he throws all\nhis time, learning, and skill away upon what, in his estimation, is an\nuncertain chance. He cannot work with the proper spirit in such a case.\nIf he believes that the result will be success, he secures in this way a\nhigher compensation than he is justly entitled to receive.\n\nIt is an undue encouragement to litigation. Men, who would not think of\nentering on a lawsuit, if they knew that they must compensate their\nlawyer whether they win or lose, are ready upon such a contingent\nagreement to try their chances with any kind of a claim. It makes the\nlaw more of a lottery than it is.\n\nThe worst consequence is yet to be told,--its effect upon, professional\ncharacter. It turns lawyers into higglers with their clients. Of course\nit is not meant that these are always its actual results; but they are\nits inevitable tendencies,--in many instances its practical working. To\ndrive a favorable bargain with the suitor in the first place, the\ndifficulties of the case are magnified and multiplied, and advantage\ntaken of that very confidence, which led him to intrust his interests to\nthe protection of the advocate.[53] The parties are necessarily not on\nan equal footing in making such a bargain. A high sense of honor may\nprevent counsel from abusing his position and knowledge; but all have\nnot such high and nice sense of honor. If our example goes towards\nmaking the practice of agreements for contingent fees general, we assist\nin placing such temptations in the way of our professional brethren of\nall degrees--the young, the inexperienced, and the unwary, as well as\nthose whose age and experience have taught them that a lawyer's honor is\nhis brightest jewel, and to be guarded from being sullied, even by the\nbreath of suspicion, with the most sedulous care.\n\nA gentleman of the largest experience and highest character for\nintegrity and learning at the Philadelphia Bar, thus strongly confirms\nthe views which have been here expressed on the subject of contingent\nfees: \"And further,\" says Mr. Price in his concluding advice to\nstudents, at the close of his Essay on Limitation and Lien, \"permit me\nto advise and earnestly to admonish you, for the preservation of\nprofessional honor and integrity, to avoid the temptation of bargaining\nfor fees or shares of any estate or other claim, contingent upon a\nsuccessful recovery. The practice directly leads to a disturbance of the\npeace of society and to an infidelity to the professional obligation\npromised to the court, in which is implied an absence of desire or\neffort of one in the ministry of the Temple of Justice, to obtain a\nsuccess that is not just as well as lawful. It is true, as a just\nequivalent for many cases honorably advocated and incompetently paid by\nthe poor, a compensation may and will be received, the more liberal\nbecause of the ability produced by success; but let it be the result of\nno bargain, exacted as a price before the service is rendered, but\nrather the grateful return for benefits already conferred. If rigid in\nyour terms, in protection of the right of the profession to a just and\nhonorable compensation, let it rather be in the amount of the required\nretainer, when it will have its proper influence in the discouragement\nof litigation.\"\n\nA lawyer should avoid, as far as possible, all transactions of business\nwith his clients, not only in regard to matters in suit in his hands,\nbut in relation to other matters. He should avoid standing toward them,\neither in the relation of borrower or lender. A young practitioner\nshould especially avoid borrowing of any one. Let him retrench, seek the\nhumblest employment of drudgery rather than do it; but, if borrow he\nmust, let it be of any one else than a client. All transactions of\nbusiness between attorney and client are looked upon with eyes of\nsuspicion and disfavor, in courts of justice.\n\nIt is a settled doctrine of equity, in England, that an attorney cannot,\nwhile the business is unfinished in which he had been employed, receive\nany gift from his client, or bind his client in any mode to make him\ngreater compensation for his services than he would have a right to\ndemand if no contract should be made during the relation. If an attorney\naccept a gift from one thus connected with him, it may be recovered in a\ncourt of chancery, by the donor or his creditors, should it be necessary\nfor them to assert a right to it to satisfy their demands. When the\nrelation of solicitor and client exists, and a security is taken by the\nsolicitor from his client, the presumption is that the transaction is\nunfair; and the onus of proving its fairness is upon the solicitor.[54]\nA man ought to be very careful of placing himself in a position to have\nany of his transactions regarded in that light. If it should ever come\nto be canvassed in court, the bandying of the phrases, fraud and\npresumption of fraud, as applied to him, may, and probably will, have an\nunfavorable effect on his reputation. Most emphatically should it be\nsaid, let nothing tempt him, not even the knowledge and consent of the\nclient, to keep the money, which may have come to his hands\nprofessionally, one single instant longer than is absolutely necessary.\nThe consequences of any difficulty arising upon this head, will be fatal\nto his professional character and prospects.\n\nThe official oath, to which reference has already more than once been\nmade, obliges the attorney \"to use no falsehood.\" It seems scarcely\nnecessary to enforce this topic. Truth in all its simplicity--truth to\nthe court, client, and adversary--should be indeed the polar star of the\nlawyer. The influence of only slight deviations from truth, upon\nprofessional character, is very observable. A man may as well be\ndetected in a great as a little lie. A single discovery, among\nprofessional brethren, of a failure of truthfulness, makes a man the\nobject of distrust, subjects him to constant mortification, and soon\nthis want of confidence extends itself beyond the Bar to those who\nemploy the Bar. That lawyer's case is truly pitiable, upon the\nescutcheon of whose honesty or truth, rests the slightest tarnish.\n\nLet it be remembered and treasured in the heart of every student, that\nno man can ever be a truly great lawyer, who is not in every sense of\nthe word, a good man. A lawyer, without the most sterling integrity, may\nshine for a while with meteoric splendor; but his light will soon go out\nin blackness of darkness. It is not in every man's power to rise to\neminence by distinguished abilities. It is in every man's power, with\nfew exceptions, to attain respectability, competence, and usefulness.\nThe temptations which beset a young man in the outset of his\nprofessional life, especially if he is in absolute dependence upon\nbusiness for his subsistence, are very great. The strictest principles\nof integrity and honor, are his only safety. Let him begin by swerving\nfrom truth or fairness, in small particulars, he will find his character\ngone--whispered away, before he knows it. Such an one may not indeed be\nirrecoverably lost; but it will be years before he will be able to\nregain a firm foothold. There is no profession, in which moral character\nis so soon fixed, as in that of the law; there is none in which it is\nsubjected to severer scrutiny by the public. It is well, that it is so.\nThe things we hold dearest on earth,--our fortunes, reputations,\ndomestic peace, the future of those dearest to us, nay, our liberty and\nlife itself, we confide to the integrity of our legal counsellors and\nadvocates. Their character must be not only without a stain, but without\nsuspicion. From the very commencement of a lawyer's career, let him\ncultivate, above all things, truth, simplicity, and candor: they are the\ncardinal virtues of a lawyer. Let him always seek to have a clear\nunderstanding of his object: be sure it is honest and right, and then\nmarch directly to it. The covert, indirect, and insidious way of doing\nanything, is always the wrong way. It gradually hardens the moral\nfaculties, renders obtuse the perception of right and wrong in human\nactions, weighs everything in the balances of worldly policy, and ends\nmost generally, in the practical adoption of the vile maxim, \"that the\nend sanctifies the means.\" If it be true, as he has said, who, more than\nany mere man, before or since his day, understood the depths of human\ncharacter, that one even may,\n\n                  \"By telling of it,\n    Make such a sinner of his memory;\n    To credit his own lie:\"--\n\nwe should be careful never to speak or act, without regard to the\n_morale_ of our words or actions. A habit may and will grow to be a\nsecond nature.\n\n   \"That monster, custom, who all sense doth eat,\n    Of habit's devil, is angel yet in this:\n    That to the use of actions fair and good\n    He likewise gives a frock or livery\n    That aptly is put on.\"\n\nThere is no class of men among whom moral delinquency is more marked and\ndisgraceful than among lawyers. Among merchants, so many honest men\nbecome involved through misfortune, that the rogue may hope to take\nshelter in the crowd, and be screened from observation. Not so the\nlawyer. If he continues to seek business, he must find his employment in\nlower and still lower grades; and will soon come to verify and\nillustrate the remark of Lord Bolingbroke, that \"the profession of the\nlaw, in its nature the noblest and most beneficial to mankind, is in its\nabuse and abasement, the most sordid and pernicious.\"\n\nWhile such are the depths to which a lawyer may sink, look, on the other\nhand, at the noble eminence of honor, usefulness, and virtue, to which\nhe may rise. Where is the profession, which, in this world, holds out\nbrighter rewards? Genius, indeed, will leave its mark in whatever sphere\nit may move. But learning, industry, and integrity, stand nowhere on\nsafer or higher ground, than in the walks of the law. In all free\ncountries, it is the avenue not only to wealth, but to political\ninfluence and distinction. In England, a large proportion of the house\nof peers, owe their seats and dignities, as well as their possessions,\neither to their own professional success, or to that of some one of\ntheir ancestors.[55] In this country, all our Presidents but three, have\nbeen educated to the Bar. Of the men who have distinguished themselves\nin the cabinet, in the halls of legislation, and in foreign diplomacy,\nhow large is the proportion of lawyers! How powerful has always been the\nprofession in guiding the popular mind, in forming that greatest of all\ncounterchecks to bad laws and bad administration,--public opinion! It is\nthe school of eloquence--that, which more than all else besides, has\nswayed, still sways, and always will sway, the destinies of free\npeoples. Let a man, to the possession of this noble faculty, add the\nhigh character of purity and justice, integrity and honor, and where are\nto be found the limits of his moral power over his fellow-citizens?[56]\nIt is well to read carefully and frequently, the biographies of eminent\nlawyers. It is good to rise from the perusal of the studies and labors,\nthe trials and conflicts, the difficulties and triumphs, of such men, in\nthe actual battle of life, with the secret feeling of dissatisfaction\nwith ourselves. Such a sadness in the bosom of a young student, is like\nthe tears of Thucydides, when he heard Herodotus read his history at the\nOlympic Games, and receive the plaudits of assembled Greece. It is the\nnatural prelude to severer self-denial, to more assiduous study, to more\nself-sustaining confidence. Some one has recommended that Middleton's\nLife of Cicero should be perused, at frequent intervals, as the vivid\npicture of a truly great mind, in the midst of the most stirring scenes,\never intent upon its own cultivation and advancement, as its only true\nglory; and that in effect sketched by his own master hand.[57] The\nautobiography of Edward Gibbon will rouse an ambitious student like the\nsound of a trumpet. But of English biographies, there is no one, it\noccurs to me, better adapted to the purpose mentioned, than the Life of\nSir William Jones, by Lord Teignmouth. It exhibits the wonders, which\nunremitted study, upheld by the pure and noble ambition of doing good,\ncan accomplish in the space of a short life. He was a man of the most\nvaried knowledge. An extensive and indeed extraordinary acquaintance\nwith ancient and modern languages, was perhaps his chief accomplishment.\nAlthough he engaged very late in life in the study of the law, such was\nhis industry and success, that he soon occupied the highest judicial\nstation, in British India; and the profession are indebted to his pen,\nfor one of the most beautiful of the elementary treatises, which adorn\nthe lawyer's library. \"In his early days,\" says his biographer, \"he\nseems to have entered upon his career of study, with this maxim strongly\nimpressed upon his mind, that whatever had been attained, was attainable\nby him; and it has been remarked, that he never neglected nor overlooked\nany opportunity of improving his intellectual faculties, or of acquiring\nesteemed accomplishments.\" Notwithstanding his numerous occupations at\nthe Bar at home, the onerous duties of his station in India, and his\npremature death, before he had attained his forty-eighth year, he has\nleft behind many learned works, which illustrate Oriental languages and\nhistory, and attest the extent of his labors and acquisitions. Indeed,\nit might be regarded as impossible, were we not informed of the regular\nallotment which he made of his time to particular occupations, and his\nscrupulous adherence to the distribution he had thus made. The moral\ncharacter of this eminent man, was no less exemplary. It is the\ntestimony of one of his contemporaries: \"He had more virtues and less\nfaults, than I ever yet knew in any human being; and the goodness of his\nhead, admirable as it was, was exceeded by that of his heart.\" His own\nmeasure of true greatness, humanly speaking, he has left behind him, in\nvery emphatic words: \"If I am asked, who is the greatest man? I answer,\nthe best. And if I am required to say, who is the best? I reply, he that\nhas deserved most of his fellow-creatures.\"[58]\n\nThis department of English literature has been recently much enriched\nby the labors of the present Lord High Chancellor of England, Lord\nCampbell. In America we have a few well written and instructive legal\nbiographies, among which ought especially to be named, Mr. Wheaton's\nLife of William Pinkney, and Professor Parsons' interesting Memoir of\nhis distinguished father, Chief Justice Parsons. Mr. Binney, at the\nclose of his honored and honorable life, is paying the debt, which every\nman owes to his profession, in animated spirit-stirring sketches of his\ngreat and good contemporaries. How forcibly does this distinguished\njurist illustrate the remark of Cicero in his Treatise on Old Age: \"Sed\nvidetis, ut senectus non modo languida atque iners non sit, verum etiam\nsit operosa, et semper agens aliquid et moliens; tale scilicet, quod\ncujusque studium in superiore vita fuit.\" What a noble example might be\nheld up, in the life and character of Chief Justice Marshall! His\nbiography, while it will be the record of active patriotism and\nhumanity, will exhibit a course of arduous self-training, for the great\nconflicts of opinion, in which it was his lot afterwards to appear, with\nso much lustre. He had not the usual advantages of a collegiate\neducation. The war of the Revolution, in which his ardent love of\ncountry, and of the principles of rational liberty, led him to enlist,\nand where he distinguished himself in the field, materially interfered\nwith, and retarded his earlier professional studies; yet, the lofty\neminence to which he attained in the opinion of his compatriots, even of\nthose who could not concur in some of his views of the Constitution, the\nenduring monuments of his greatness in the decisions of the Supreme\nCourt of the United States, bespeak an intellect of the very first\norder, mental power naturally vigorous, but brought, by proper exercise,\nto a degree of strength that made it tower above the general level of\neducated men. His opinions do not abound in displays of learning. His\nsimplicity, a character so conspicuous in all his writings and\nactions--that first and highest characteristic of true greatness--led\nhim to say and do just what was necessary and proper to the purpose in\nhand. Its reflected consequences on his own fame as a scholar, a\nstatesman, or a jurist, seem never once to have occurred to him. As a\njudge, the Old World may be fairly challenged to produce his superior.\nHis style is a model--simple and masculine. His reasoning--direct,\ncogent, demonstrative, advancing with a giant's pace and power, and yet\nwithal so easy evidently to him, as to show clearly, a mind in the\nconstant habit of such strong efforts. Though he filled for so many\nyears the highest judicial position in this country, how much was his\nwalk like the quiet and unobtrusive step of a private citizen, conscious\nof heavy responsibilities, and anxious to fulfil them; but unaware that\nthe eyes of a nation--of many nations--were upon him! There was around\nhim none of the glare, which dazzles; but he was clothed in that pure\nmellow light of declining evening, upon which we love to look. Where is\nthe trust to society more sacred, where are duties more important, or\nconsequences more extended, for individual or social weal or woe, than\nthose which attach to the office he held? How apt, and aptly said, is\nthat prayer of Wolsey, when he is informed of the promotion of Sir\nThomas More to the place of Lord Chancellor:\n\n                  \"May he ... do justice,\n    For truth's sake and his conscience; that his bones,\n    When he has run his course, and sleeps in blessings,\n    May have a tomb of orphans' tears wept on him.\"\n\nIt is surely a just subject of national, as well as professional pride,\nthat an American lawyer can thus, pointing to the example of such a man\nas JOHN MARSHALL, hold up his character, his reputation, his usefulness,\nhis greatness, as incentives to high and honorable ambition; and\nespecially, his life of unblemished virtue, and single-hearted\npurity,--after all, his highest praise, for, as old Shirley says,\n\n   \"When our souls shall leave this dwelling,\n    The glory of one fair and virtuous action\n    Is above all the scutcheons on our tomb.\"\n\nIs it possible that a being so fearfully and wonderfully made as man,\nand animated by a spirit still more fearful and incomprehensible, was\ncreated for the brief term of a few revolutions of the planet he lives\non? Shall his own physical and intellectual productions so long survive\nhim? The massive piles of Egypt have endured for thousands of years:\nfluted column and sculptured architrave have stood for generations,\nmonuments of his labor and skill. A poem of Homer, an oration of\nDemosthenes, an ode of Horace, a letter of Cicero, carry down to the\nremotest posterity the memorial of their names. Men found empires,\nestablish constitutions, promulgate codes of laws; there have been\nSolons, Alexanders, Justinians, and Napoleons. There have been those\njustly called Fathers of their country, and benefactors of their race.\nHave they, too, sunk to become clods of the valley? The mind, which can\nlook so far before and after--can subdue to its mastery the savages of\nthe forests, and the fiercer elements of Nature--can stamp the creation\nof its genius upon the living canvas, or the almost breathing, speaking\nmarble--can marshal the invisible vibrations of air into soul-stirring\nor soul-subduing music--can pour forth an eloquence of words, with magic\npower to lash the passions of many hearts into a raging whirlwind, or\ncommand them with a \"peace, be still\"--can make a book, a little book,\nwhich shall outlive pyramids and temples, cities and empires--can\nperceive and love beauty, in all its forms, and above all, moral beauty,\nand God, the infinite perfection of moral beauty,--no, this mind can\nnever die. Its moral progress must go on in an unending existence, of\nwhich its life of fourscore years on earth is scarce the childhood. Let\nus beware then of raising these objects of ambition, wealth, learning,\nhonor, and influence, worthy though they be, into an undue importance;\nnor in the too ardent pursuit of what are only means, lose sight of the\ngreat end of our being.\n\n\n\n\nAPPENDIX.\n\n\n\n\nNo. I.\n\nCOURVOISIER'S CASE[59]\n\n\nOn Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and\naged, being in his seventy-third year, was murdered in his bed. He was a\nwidower, living at No. 14 Norfolk Street, Park Lane, London, a small\nhouse, occupied by only himself and three servants,--Courvoisier, a\nyoung Swiss valet, and two women, a cook and house-maid. The evidence\nwas of a character to show very clearly that the crime had been\ncommitted by some one in the house; but, Courvoisier's behavior\nthroughout had been that of an innocent man. Two examinations of his\ntrunk, by the officers of the police, showed nothing suspicious; rewards\nhaving been offered by the government and family of the deceased; for\nthe detection of the criminal, a third examination was made of\nCourvoisier's box, which resulted in the discovery of a pair of white\ncotton gloves, two pocket handkerchiefs, and a shirt-front, stained with\nblood. The prisoner's counsel went to the trial with a full persuasion\nof his innocence, and conducted the cross-examination closely and\nzealously, especially of Sarah Mancer, one of the female domestics, with\na view of showing that there was as much probability that the witness or\nthe other domestic was the criminal as the prisoner; and that the\npolice, incited by the hopes of the large rewards offered, had conspired\nto fasten the suspicion unjustly on him. At the close of the first day's\nproceedings, the prosecutors were placed unexpectedly in possession of a\nnew and important item of evidence: the discovery of the plate of the\ndeceased, which was missed, and that it had been left by the prisoner,\nat the place where it was found, about a week, perhaps only a very few\ndays, before the committing of the murder. The parcel contained silver\nspoons, forks, a pair of gold auricles, all unquestionably the property\nof the unfortunate nobleman; and the only question remaining was,\nwhether Courvoisier was the person who had so left it. If he were, it\nwould, of course, grievously for him, increase the _probabilities_ that\nit must have been he who subsequently committed the murder, and with the\nobject of plunder. On the ensuing morning, the person who had made this\ndiscovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of\nentertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester\nSquare), was shown a number of prisoners in the prison-yard, one of whom\nwas Courvoisier, whom she instantly recognized as the person who had\nleft the plate with her, and also had formerly lived in her employ.\nCourvoisier also suddenly recognized her, and with dismay. The immediate\neffect of his panic was the confession of his guilt to his counsel at\nthe bar of the court, a few minutes afterwards, coupled with his desire,\nnevertheless, to be defended to the utmost. His probable object was\nsimply to prepare his counsel against the forthcoming evidence. The\nprisoner was convicted, and afterwards confessed his crime. Mr.\nPhillips's conduct of the defence was criticized at the time, in the\ncolumns of the Examiner, but he suffered it to pass in silence. In 1849,\nthat periodical renewed the accusation originally made, upon which the\nfollowing correspondence appeared in the London Times of Nov. 20th,\n1849.\n\n\nTO THE EDITOR OF THE \"TIMES.\"\n\nSIR,--I shall esteem it a great favor if you will allow the accompanying\ndocuments to appear in the \"Times.\" Its universal circulation affords me\nan opportunity of annihilating a calumny recently revived, which has for\nnine years harassed my friends far more than myself.\n\n                                       I am, &c.,\n                                           CHARLES PHILLIPS.\n39 Gordon Square.\n\n\n                                            INNER TEMPLE, Nov. 14, 1849.\n\nMY DEAR PHILLIPS,--It was with pain that I heard yesterday of an\naccusation having been revived against you in the \"Examiner\" newspaper,\nrespecting alleged dishonorable and most unconscientious conduct on your\npart, when defending Courvoisier against the charge of having murdered\nLord William Russell. Considering that you fill a responsible judicial\noffice, and have to leave behind you a name unsullied by any blot or\nstain, I think you ought to lose no time in offering, as I believe you\ncan truly do, a public and peremptory contradiction to the allegations\nin question. The mere circumstances of your having been twice promoted\nto judicial office by two lord chancellors, Lord Lyndhurst and Lord\nBrougham, since the circulation of the reports to which I am alluding,\nand after those reports had been called to the attention of at least one\nof those noble and learned lords, is sufficient evidence of the\ngroundlessness of such reports.\n\nSome time ago I was dining with Lord Denman, when I mentioned to him the\nreport in question. His lordship immediately stated that he had inquired\ninto the matter, and found the charge to be utterly unfounded; that he\nhad spoken on the subject to Mr. Baron Parke, who had sat on the Bench\nbeside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke\ntold him he had, for reasons of his own, most carefully watched every\nword that you uttered, and assured Lord Denman that your address was\nperfectly unexceptionable, and that you made no such statements as were\nsubsequently attributed to you.\n\nLord Denman told me that I was at liberty to mention this fact to any\none; and expressed in noble and generous terms his concern at the\nexistence of such serious and unfounded imputations upon your character\nand honor.\n\nBoth Lord Denman and Baron Parke are men of as nice a sense of honor and\nas high a degree of consciousness as it is possible to conceive; and I\nthink the testimony of two such distinguished judges ought to be\npublicly known, to extinguish every kind of suspicion on the subject.\n\nI write this letter to you spontaneously, and, hoping that you will\nforgive the earnestness with which I entreat you to act upon my\nsuggestion, believe me ever yours sincerely,\n\n                                                    SAMUEL WARREN.\nMR. COMMISSIONER PHILLIPS.\n\n\n                                              39 GORDON SQUARE, Nov. 20.\n\nMY DEAR WARREN,--Your truly kind letter induces me to break the\ncontemptuous silence, with which for nine years I have treated the\ncalumnies, to which you allude. I am the more induced to this by the\nrepresentations of some valued friends, that many honorable minds begin\nto believe the slander because of its repetition without receiving a\ncontradiction. It is with disgust and disdain, however, that even thus\nsolicited I stoop to notice inventions too abominable, I had hoped, for\nany honest man to have believed. The conduct of Lord Denman is in every\nrespect characteristic of his noble nature. Too just to condemn without\nproof, he investigates the facts, and defends the innocent. His\ndeliberate opinion is valuable indeed, because proceeding from one who\nis invaluable himself. My judicial appointments by the noblemen you\nmention would have entailed on them a fearful responsibility, had there\nbeen any truth in the accusations of which they must have been\ncognizant. I had no interest whatever with either of these chancellors,\nsave that derived from their knowledge of my character, and their\nobservation of my conduct. It is now five-and-twenty years ago since\nLord Lyndhurst, when I had no friend here, voluntarily tendered me his\nfavor and his influence, and his kindness to me remains to this day\nunabated. Of Lord Brougham, my ever warm and devoted friend, I forbear\nto speak, because words cannot express my affection or my gratitude. His\nfriendship has soothed some affliction and enhanced every pleasure, and\nwhile memory lasts will remain the proudest of its recollections and the\nmost precious of its treasures. This is no vain-glorious vaunting. The\nunabated kindness of three of the greatest men, who ever adorned the\nBench, ought, in itself, to be a sufficient answer to my traducers. Such\nmen as these would scarcely have given their countenance to one, who, if\nwhat were said of him were true, deserved their condemnation. I am not\ndisposed, however, though I might be well warranted in doing so, to\nshelter myself under the authority of names, no matter how illustrious.\nI give to each and all of these charges a solemn and indignant\ncontradiction, and I will now proceed to their refutation. The charges\nare threefold, and I shall discuss them _seriatim_.\n\nFirst, I am accused of having retained Courvoisier's brief after having\nheard his confession. It is right that I should relate the manner of\nthat confession, as it has been somewhat misapprehended. Many suppose it\nwas made to me alone, and made in the prison. I never was in the prison\nsince I was called to the Bar, and but once before, being invited to see\nit by the then sheriffs. So strict is this rule, that the late Mr.\nFauntleroy solicited a consultation there in vain with his other counsel\nand myself. It was on the second morning of the trial, just before the\njudges entered, that Courvoisier, standing publicly in front of the\ndock, solicited an interview with his counsel. My excellent friend and\ncolleague, Mr. Clarkson, and myself immediately approached him. I beg of\nyou to mark the presence of Mr. Clarkson, as it will become very\nmaterial presently. Up to this morning I believed most firmly in his\ninnocence, and so did many others as well as myself. \"I have sent for\nyou, gentlemen,\" said he, \"to tell you I committed the murder!\" When I\ncould speak, which was not immediately, I said, \"Of course then you are\ngoing to plead guilty?\"--\"No, sir,\" was the reply, \"I expect you to\ndefend me to the utmost.\" We returned to our seats. My position at this\nmoment was, I believe, without parallel in the annals of the profession.\nI at once came to the resolution of abandoning the case, and so I told\nmy colleague. He strongly and urgently remonstrated against it, but in\nvain. At last he suggested our obtaining the opinion of the learned\njudge, who was not trying the cause, upon what he considered to be the\nprofessional etiquette under circumstances so embarrassing. In this I\nvery willingly acquiesced. We obtained an interview, and Mr. Baron\nParke requested to know distinctly whether the prisoner insisted on my\ndefending him, and, on hearing that he did, said, I was bound to do so,\nand to use all fair arguments arising on the evidence. I therefore\nretained the brief, and I contend for it, that every argument I used was\na fair commentary on the evidence, though undoubtedly as strong as I\ncould make them. I believe there is no difference of opinion now in the\nprofession that this course was right. It was not until after eight\nhours' public exertion before the jury that the prisoner confessed; and\nto have abandoned him then would have been virtually surrendering him to\ndeath. This is my answer to the first charge.\n\nI am accused, secondly, of having \"appealed to Heaven as to my belief in\nCourvoisier's innocence,\" after he had made me acquainted with his\nguilt. A grievous accusation! But it is false as it is foul, and carries\nits own refutation on its face. It is with difficulty I restrain the\nexpression of my indignation; but respect for my station forbids me to\ncharacterize this slander as it deserves. It will not bear one moment's\nanalysis. It is an utter impossibility under the circumstances. What!\nappeal to Heaven for its testimony to a lie, and not expect to be\nanswered by its lightning? What! make such an appeal, conscious that an\nhonorable colleague sat beside me, whose valued friendship I must have\nforever forfeited? But above all and beyond all, and too monstrous for\nbelief, would I have dared to utter that falsehood in the very presence\nof the judge to whom, but the day before, I had confided the reality!\nThere, upon the Bench above me, sat that time-honored man--that upright\nmagistrate, pure as his ermine, \"narrowly watching\" every word I said.\nHad I dared to make an appeal so horrible and so impious--had I dared so\nto outrage his nature and my own conscience, he would have started from\nhis seat and withered me with a glance. No, Warren, I never made such an\nappeal; it is a malignant untruth, and sure I am, had the person who\ncoined it but known what had previously occurred, he never would have\nuttered from his libel mint so very clumsy and self-proclaiming a\ncounterfeit. So far for the verisimilitude of this-charge. But I will\nnot rest either on improbability, or argument, or even denial. I have a\nbetter and a conclusive answer. The trial terminated on Saturday\nevening. On Sunday I was shown in a newspaper the passage imputed to me.\nI took the paper to court on Monday, and, in the aldermen's room, before\nall assembled, after reading the paragraph aloud, I thus addressed the\njudges:--\"I take the very first opportunity which offers, my lords, of\nmost respectfully inquiring of you whether I ever used any such\nexpression?\"--\"You certainly did not, Phillips,\" was the reply of the\nlate lamented Lord Chief Justice, \"and I will be your vouchee whenever\nyou choose to call me,\"--\"And I,\" said Mr. Baron Parke, happily still\nspared to us, \"had a reason, which the Lord Chief Justice did not know,\nfor watching you narrowly, and he will remember my saying to him, when\nyou sat down, 'Brother Tindal, did you observe how carefully Phillips\nabstained from giving any personal opinion in the case?' To this the\nlearned Chief Justice instantly assented.\" This is my answer to the\nsecond charge.\n\nThirdly, and lastly, I am accused of having endeavored to cast upon the\nfemale servants the guilt, which I knew was attributable to Courvoisier.\nYou will observe, of course, that the gravamen of this consists in my\nhaving done so after the confession. The answer to this is obvious.\nCourvoisier did not confess till Friday: the cross-examination took\nplace the day before, and so far, therefore, the accusation is disposed\nof. But it may be said I did so in my address to the jury. Before\nrefuting this let me observe upon the disheartening circumstances under\nwhich that address was delivered. At the close of the, to me, most\nwretched day on which the confession was made, the prisoner sent me this\nastounding message by his solicitor: \"Tell Mr. Phillips, my counsel,\nthat I consider he has my life in his hands.\" My answer was, that as he\nmust be present himself, he would have an opportunity of seeing whether\nI deserted him or not. I was to speak on the next morning. But what a\nnight preceded it! Fevered and horror-stricken, I could find no repose.\nIf I slumbered for a moment, the murderer's form arose before me,\nscaring sleep away, now muttering his awful crime, and now shrieking to\nme to save his life! I did try to save it. I did everything to save it,\nexcept that which is imputed to me, but that I did not, and I will prove\nit. I have since pondered much upon this subject, and I am satisfied\nthat my original impression was erroneous. I had no right to throw up my\nbrief, and turn traitor to the wretch, wretch though he was, who had\nconfided in me. The counsel for a prisoner has no option. The moment he\naccepts his brief, every faculty he possesses becomes his client's\nproperty. It is an implied contract between him and the man who trusts\nhim. Out of the profession this may be a moot point, but it was asserted\nand acted on by two illustrious advocates of our own day, even to the\nconfronting of a king, and, to the regal honor be it spoken, these\ndauntless men were afterwards promoted to the highest dignities.\n\nYou will ask me here whether I contend on this principle for the right\nof doing that of which I am accused, namely, casting the guilt upon the\ninnocent? I do no such thing; and I deny the imputation altogether. You\nwill still bear in mind what I have said before, that I scarcely could\nhave dared to do so under the eye of Baron Parke and in the presence of\nMr. Clarkson. To act so, I must have been insane. But to set this matter\nat rest, I have referred to my address as reported in the \"Times\"--a\njournal the fidelity of whose reports was never questioned. You will be\namazed to hear that I not only did not do that of which I am accused;\nbut that I did the very reverse. Fearing that, nervous and unstrung as I\nwas, I might do any injustice in the course of a lengthened speech, by\neven an ambiguous expression, I find these words reported in the\n\"Times,\"--\"Mr. Phillips said the prosecutors were bound to prove the\nguilt of the prisoner, not by inference, by reasoning, by such subtile\nand refined ingenuity as had been used, but by downright, clear, open,\npalpable demonstration. How did they seek to do this? What said Mr.\nAdolphus and his witness, Sarah Mancer? And here he would beg the jury\nnot to suppose for a moment, in the course of the narrative with which\nhe must trouble them, that he meant to cast the crime upon either of the\nfemale servants. It was not at all necessary to his case to do so. It\nwas neither his interest, his duty, nor his policy, to do so. God forbid\nthat any breath of his should send tainted into the world persons\ndepending for their subsistence on their character.\" Surely this ought\nto be sufficient. I cannot allude, however, to this giant of the press,\nwhose might can make or unmake a reputation, without gratefully\nacknowledging that it never lent its great circulation to these libels.\nIt had too much justice. The \"Morning Chronicle,\" the \"Morning Herald,\"\nand the \"Morning Post,\" the only journals to which I have access, fully\ncorroborated the \"Times,\" if, indeed, such a journal needed\ncorroboration. The \"Chronicle\" runs thus:--\"In the first place, says my\nfriend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg\nto do an act of justice, and to assure you that I do not for a moment\nmean to suggest in the whole course of my narrative that this crime may\nhave been committed by the female servants of the deceased nobleman.\"\n\"The Morning Post\" runs thus: \"Mr. Adolphus called a witness, Sarah\nMancer. But let me do myself justice, and others justice, by now\nstating, that in the whole course of my narrative with which I must\ntrouble you, I beg you would not suppose that I am in the least degree\nseeking to cast the crime upon any of the witnesses. God forbid that any\nbreath of mine should send persons depending on the public for\nsubsistence into the world with a tainted character.\" I find the\n\"Morning Herald\" reporting me as follows: \"Mr. Adolphus called a witness\nnamed Sarah Mancer. But let me do myself justice and others justice by\nnow stating that in the whole course of the narrative with which I must\ntrouble you, I must beg that you will not suppose that I am in the least\ndegree seeking to cast blame upon any of the witnesses.\" Can any\ndisclaimer be more complete? And yet, in the face of this, for nine\nsuccessive years has this most unscrupulous of slanderers reiterated his\ncharge. Not quite three weeks ago he recurs to it in these terms: \"How\nmuch worse was the attempt of Mr. Phillips to throw the suspicion of the\nmurder of Lord William Russell on the innocent female servants, in order\nto procure the acquittal of his client Courvoisier, of whose guilt he\nwas cognizant?\" I have read with care the whole report in the \"Times\" of\nthat three hours' speech, and I do not find a passage to give this\ncharge countenance. But surely, surely, in the agitated state in which I\nwas, had even an ambiguous expression dropped from me, the above broad\ndisclaimer would have been its efficient antidote.\n\nSuch is my answer to the last charge; and, come what will, it shall be\nmy final answer. No envenomed reiteration, no popular delusion, no\nimportunity of friendship, shall ever draw from me another syllable. I\nshall remain in future, as I have been heretofore, _auditor tantum_. You\nknow well how strenuously and how repeatedly you pressed me to my\nvindication, especially after Lord Denman's important conversation with\nyou, and you know the stern disdain with which I dissented. The _mens\nconscia recti_, a thorough contempt for my traducer, the belief that\ntruth would in the end prevail, and a self-humiliation at stooping to a\ndefence, amply sustained me amid the almost national outcry which\ncalumny had created. Relying doubtless upon this, month after month, for\nnine successive years, my accuser has iterated and reiterated his libels\nin terms so gross, so vulgar, and so disgraceful, that my most valued\nfriends thought it my duty to them publicly to refute them. To that\nconsideration, and to that alone, I have yielded; in deference to\ntheirs, relinquishing my own opinions. If they suppose, however, that\nslander, because answered, will be silenced, they will find themselves\nmistaken.\n\n    Destroy the web of sophistry--in vain--\n    The creature's at his dirty work again.\n\nNo, no, my dear friend, invention is a libeller's exhaustless capital,\nand refutation but supplies the food on which he lives. He may, however,\npursue his vocation undisturbed by me. His libels and my answer are now\nbefore the world, and I leave them to the judgment of all honorable men.\n\n                                                      C. PHILLIPS.\n\n\n\n\nNo. II.\n\nCOURSE OF LEGAL STUDY[60]\n\n\n_Non multa sed multum_, is the cardinal maxim by which the student of law\nshould be governed in his readings; at the commencement of his studies--in\nthe office of his legal preceptor, REPETITION--REPETITION--REPETITION.\nBlackstone and Kent, should be read--and read again and again. These\nelementary works, with some others of an immediately practical\ncast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's\nNisi Prius, Mitford's Equity Pleading--well conned, make up the best\npart of office reading. Of course the Acts of Assembly should be gone\nover and over again. I do not say that this is all. The plan of reading,\nwhich I am about to recommend, may be begun in the office. Much will\ndepend upon, what may be termed, the mental temperament of the student\nhimself, which no one but the immediate preceptor can observe; and he\nwill be governed accordingly in the selection of works to be placed in\nhis hands. No lawyer does his duty, who does not frequently examine his\nstudent, not merely as a necessary means of exciting him to attention,\nand application; but in order to acquire such an acquaintance with the\ncharacter of his pupil's mind--its quickness or slowness--its\nconcentrativeness or discursiveness--as to be able to form a judgment\nwhether he requires the curb or the spur. It is an inestimable advantage\nto a young man to have a judicious and experienced friend watching\nanxiously his progress, and able to direct him, when, if left to\nhimself, he must wander in darkness and danger. \"There be two things,\"\nsays Lord Coke, \"to be avoided by him as enemies to learning,\n_praepostera lectio_ and _praepropera praxis_.\" Co. Litt. 70 b.\n\nI prefer presenting a certain order of subjects to be pursued;\nobserving, however, that it may be somewhat irksome to pursue any one\nbranch for too long a period unvaried. When that is found to be the\ncase, the last five heads may be adopted as collateral studies, and\npursued simultaneously with the first three.\n\nThese heads or branches are--1. Real Estate and Equity. 2. Practice,\nPleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and\nInternational law. 5. Constitutional Law. 6. Civil Law. 7. Persons and\nPersonal Property. 8. The Law of Executors and Administrators.\n\n\nI. REAL ESTATE AND EQUITY.\n\nAs introductory to this head, Lord Hale's History of the Common Law may\nbe perused with advantage. It was perhaps a mere sketch, intended to be\nafterwards filled up and completed. Still, however, it is a work of\nauthority, as indeed is everything which proceeded from the pen of its\ndistinguished author. He is correct and accurate to a remarkable degree.\nReeves' History of the English Law is a full and comprehensive history\nof the English Law, accurate and judicious as well as full. Lord\nMansfield is said to have advised its author in regard to its plan and\nexecution. In this work the student is presented with all that is\nnecessary that he should know of the earliest law-books, Bracton,\nGlanville, and Fleta, carefully collected and presented. The history of\nthe law is separately traced under the reign of each king, and it may be\nof advantage to read at the same time some good history or histories of\nEngland parallel with the work. \"Reeves' History of the English Law,\"\nsays Chancellor Kent, \"contains the best account that we have of the\nprogress of the law, from the time of the Saxons to the reign of\nElizabeth. It covers the whole ground of the law included in the old\nabridgments, and it is a work deserving of the highest commendation. I\nam at a loss which most to admire, the full and accurate learning, which\nit contains, or the neat, perspicuous, and sometimes elegant style, in\nwhich that learning is conveyed.\" 1 Comm. 508.\n\nDalrymple's Essay towards a general History of Feudal Property in Great\nBritain, is a brief but learned and philosophical treatise, which may be\nfollowed by Sullivan's Lectures on Feudal Law, a work copious in detail\nand exhibiting ably, among other topics, the influence of the feudal\nsystem upon the Modern Law of Tenures. Sir Martin Wright's Introduction\nto the Law of Tenures is one of the most accurate and profound of the\nessays on this topic; and is worthy of the most attentive study. Craig\nde Feudis was thought by Lord Mansfield much preferable to any judicial\nwork which England had then produced. With these legal treatises on the\nfeudal system may be read with great advantage, simultaneously,\nRobertson's History of Charles V, and Hallam's History of the Middle\nAges.\n\nSir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken\nup in this connection. It is said that until the publication of\nBlackstone's Commentaries, it was regarded as the best elementary book\nto be placed in the hands of law students; and we have the authority of\nSir William Blackstone for saying that his method was greatly superior\nto that in all the treatises that were then extant: Blackstone's\nAnalysis, Preface, 6. \"His text,\" says Chancellor Kent, \"was weighty,\nconcise, and nervous, and his illustrations apposite, clear, and\nauthentic;\" though he adds, \"But the abolition of the feudal tenures and\nthe disuse of real actions, have rendered half of his work obsolete,\" 1\nComm. 509; an objection, in the view we take of legal education, which\nshould rather recommend the work than otherwise.\n\nAt the same time with Finch take Doctor and Student by St. Germain--a\nlittle book which is replete with sound law, and has always been cited\nwith approbation as an authority.\n\nThe Prefaces to the several volumes of Lord Coke's Reports may be read\nnow with great advantage. They contain much interesting information, and\nstrongly impregnated as they are with Lord Coke's abundant learning and\nlove of the law as a science and profession, they form an admirable\nintroduction to The First Institute, or Lord Coke's Commentary upon\nLittleton's Tenures. It would be advisable, I think, to read first in\norder the sections of Littleton's Tenures, the original treatise upon\nwhich The Institute was a commentary. After that, no time or pains\nshould be spared to master completely The First Institute. If the course\nnow prescribed has been followed, the student will not require to be\nreminded, that even those parts, which seem to relate to obsolete heads\nof the law, ought to be read and understood. \"There is not,\" says Mr.\nButler, \"in the whole of this golden book, a single line which the\nstudent will not in his professional career, find on more than one\noccasion eminently useful.\" There may be some extravagance in this\nassertion; but we may nevertheless agree with Mr. Ritso that \"there is\nno knowledge of this kind, which may not, sooner or later, be in fresh\ndemand; there is no length of time or change of circumstances, that can\nentirely defeat its operation or destroy its intrinsic authority. Like\nthe old specie withdrawn from circulation upon the introduction of a\nnew coinage, it has always its inherent value; the ore is still sterling\nand may be moulded into modern currency.\" The opinions of American\nlawyers confirm this conclusion. It is well known that C. J. Parsons was\ndistinguished for his familiarity with the pages of The Institute. It\nwas Mr. Pinkney's favorite law book; and \"his arguments at the Bar,\"\nsays his biographer, Mr. Wheaton, \"abounded with perpetual recurrences\nto the principles and analysis drawn from this rich mine of common law\nlearning.\" Mr. Hoffman, in his Course of Legal Study, has also borne his\ntestimony to its importance to the American practitioner. Chancellor\nKent seems, as I have intimated in the note, to lean rather against Coke\nupon Littleton, as an Institute of Legal Education, although he\nacknowledges its value and authority as a book of reference.\n\nIt appears to me that after Coke, Preston's Elementary Treatise on\nEstates may be read with advantage. He is perhaps unnecessarily diffuse\nand tautological; but he enters largely into the reasons of the abstruse\ndoctrines of which he treats, and his work is calculated to lead the\nstudent to inquire more earnestly into the philosophy of the science.\nFearne's Essay on the Learning of Contingent Remainders, should then be\nwell studied. If no other book be read over a second time, it must not\nbe omitted as to this. This volume is occupied in the discussion of\npoints of great difficulty and abstruseness; yet the style is remarkable\nfor clearness and perspicuity, and the reasoning is logical and\nirresistible. A taste or otherwise, for this book, will test the\nstudent's real progress. After Fearne, take up Sheppard's Touchstone of\nCommon Assurances--a work generally supposed to have been written by Mr.\nJustice Doddridge, and not by William Sheppard, whose name it bears. It\nis a most valuable book, one of the most esteemed and authoritative of\nthe old treatises. There is an edition by Mr. Preston, but I do not\nrecommend it. Had he annotated in the common way, his labors and\nreferences would no doubt have increased the value of the book; but he\nhas taken liberties with the text,--subdividing it, occasionally\nchanging the phraseology, and inserting matter of his own: a course of\nproceeding in regard to any work, except a digest or dictionary, to\nwhich I cannot be reconciled. The Touchstone may be followed by Preston\non Abstracts of Title, and Preston's Treatise on Conveyancing.\n\nI think that at this period, as a necessary introduction to the\nsucceeding studies, some works on Equity Jurisprudence should be taken\nin hand; as the Treatise on Equity of which Henry Ballow is the reputed\nauthor. It is the text of Fonblanque's Equity. It had better be read by\nitself. Disquisitional notes of great length only confuse and confound\nthe student; and Mr. Marvin has well said that Fonblanque's Equity\n\"finally expired under the weight of its own notes.\" To this add\nJeremy's Treatise on Equity, and Story's Commentaries on Equity\nJurisprudence. The student may then read with advantage, Powell on\nMortgages, with Coventry's Notes. It is to be lamented that Mr.\nCoventry did not prepare an original work, instead of overwhelming the\ntext of Powell with his learned and valuable labors. Chancellor Kent has\nremarked, that between the English and American editors it is \"somewhat\ndifficult for the reader to know, without considerable difficulty, upon\nwhat ground he stands.\" Like the treatise on Equity, it has been nearly\nchoked to death in the embraces of its annotators. Bacon's Reading upon\nthe Statute of Uses, is a very profound treatise on that subject, though\nevidently left by its great author in an unfinished state. Sanders on\nUses and Trusts, is a very comprehensive and learned work, and the\nsubject, which may be styled the Metaphysics of the Law, requires close\nattention. Hill on Trustees, is a practical treatise, which may here be\nread with advantage, as also Lewis on Perpetuities. Sugden on Powers,\nhas been said to be second to no elementary law book. It is a masterly\nelucidation of the subtle doctrines of the law on the subject of Powers,\nand is held in the highest estimation. It will perhaps be better\nappreciated and understood, if with it, or after it, is taken up\nChance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and\nwhich examines, controverts, and discusses at large many of his\npositions. Sugden on Vendors and Purchasers may then follow.\n\nThe titles on Leases and Terms for Years, and Rent, in Bacon's\nAbridgment, should be studied. These were the works of Chief Baron\nGilbert. After this, Woodfall on Landlord and Tenant.\n\nRoscoe's Treatise on the Law of Actions relating to Real Property, may\nbe read as a convenient introduction to Cruise on Fines and Recoveries,\nand Pigott on Common Recoveries.\n\nTo these, in conclusion of this, by far the most important and\nfundamental branch of legal studies, may be added, Powell's Essay on the\nLearning of Devises, and Jarman on Wills.\n\nIt will be remarked, that I have not set down in order, any Report\nBooks; it is not that I undervalue that kind of study. It appears to me\nthat in his regular reading, the student should constantly resort to and\nexamine the principal cases referred to and commented upon by his\nauthors. In this way, he will read them more intelligently, and they\nwill be better impressed on his memory. Some reports may be read through\ncontinuously; such are Plowden, Hobart, Vernon, and I certainly think,\nJohnson's Chancery Reports should be thus read. Smith's Leading Cases is\nan excellent reading-book of this kind. The student of Pennsylvania Law\nwill do well not to omit Binney's Reports. But I assign no particular\nplace to this kind of study, because I think it may be taken up and laid\naside at intervals, according to the bent of the student's inclination.\nWhen, in any particular part of his course, he finds his regular reading\ndrags heavily--he has become fagged and tired of a particular\nsubject--let him turn aside for a week or two, to some approved and\nstandard Report Book; it will be useful reading, and he will be able to\nreturn refreshed to his proper course.\n\nIt would extend this Appendix too much, if I were to go over the\nremaining parts of the prescribed plan, with the same particularity as I\nhave this first and most important branch. It will be sufficient to\nindicate merely the books, and the order in which they may be most\nprofitably read, under each division.\n\n\nII. PRACTICE, PLEADING, AND EVIDENCE.\n\nThe Introduction to Crompton's Practice gives a full account of the\njurisdiction of the courts, and the steps by which it was arrived at.\nThis book is sometimes called Sellon's Practice, having been arranged by\nMr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's\nPractice. Stephen on Pleading. Saunders' Reports, with Notes by\nWilliams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's\nNisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's\nEquity Pleading. Barton's Historical Treatise of a Suit in Equity.\nNewland's Chancery Practice. Gresley on Evidence in Equity.\n\n\nIII. CRIMES AND FORFEITURES.\n\nHale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's\nConsiderations on the Law of Forfeiture for High Treason. The third\npart of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors.\nChitty on Criminal Law.\n\n\nIV. NATURAL AND INTERNATIONAL LAW.\n\nBurlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis.\nRutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones\nPublici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.\nMcIntosh's Discourse on the Study of the Law of Nature and Nations.\nWheaton's History of International Law. Wheaton's International Law.\nRobinson's Admiralty Reports. Cases in the Supreme Court of the United\nStates.\n\n\nV. CONSTITUTIONAL LAW.\n\nThe second part of Lord Coke's Institutes. Hallam's Constitutional\nHistory of England. Wynne's Eunomus. De Lolme on the English\nConstitution, with Stephens' Introduction and Notes. The Federalist.\nRawle on the Constitution. Story on the Constitution. All the cases\ndecided in the Supreme Court of the United States, on constitutional\nquestions, to be read methodically, as far as possible.\n\n\nVI. CIVIL LAW.\n\nI consider some study of this head as a necessary introduction to a\nthorough course on the subjects of Persons and Personal Property, and\nthe topic, which is so important in the United States, of the Conflict\nof Laws.\n\nButler's Horae Juridicae. Gibbon's History of the Decline and Fall, chap.\n44. Justinian's Institutes. Savigny's Traite de Droit Romain. Savigny's\nHistoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil\nLaw. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law.\nDomat's Civil Law.\n\n\nVII. PERSONS AND PERSONAL PROPERTY.\n\nReeves on the Domestic Relations. Bingham's Law of Infancy and\nCoverture. Roper on Husband and Wife. Angel and Ames on Corporations.\nLes [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones\non Bailments. Story on Partnership. Byles on Bills. Story on Promissory\nNotes. Abbott on Shipping. Duer on Insurance. Emerigon Traite des\nAssurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict\nof Laws.\n\n\nVIII. EXECUTORS AND ADMINISTRATORS.\n\nRoper on Legacies. Toller on Executors. Williams on Executors. The Law's\nDisposal, by Lovelass.\n\nI believe that the course that I have thus sketched, if steadily and\nlaboriously pursued, will make a very thorough lawyer. There is\ncertainly nothing in the plan beyond the reach of any young man, with\nordinary industry and application, in a period of from five to seven\nyears, with a considerable allowance for the interruptions of business\nand relaxation. One thing is certain,--there is no royal road to Law,\nany more than there is to Geometry. The fruits of study cannot be\ngathered without its toil. It seems the order of Providence that there\nshould be nothing really valuable in the world not gained by labor,\npain, care, or anxiety. In the law, a young man must be the architect of\nhis own character, as well as of his own fortune. \"The profession of the\nlaw,\" says Mr. Ritso, \"is that, of all others, which imposes the most\nextensive obligations upon those who have had the confidence to make\nchoice of it; and indeed there is no other path of life in which the\nunassumed superiority of individual merit is more conspicuously\ndistinguished according to the respective abilities of the parties. The\nlaurels that grow within these precincts are to be gathered with no\nvulgar hands; they resist the unhallowed grasp, like the golden branch\nwith which the hero of the AEneid threw open the adamantine gates that\nled to Elysium.\"\n\n\n\n\nNo. III.\n\nTHE ENGLISH BAR.\n\n\nThere are three orders of men at the English Bar: 1. Attorneys, or\nSolicitors in Chancery. 2. Barristers; and 3. Serjeants.\n\n1. _Attorneys and Solicitors._--Acts of Parliament have been made for\nthe regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating\nand amending several of the laws relating to attorneys and solicitors,\nprescribes the conditions of admission as an attorney, the time and mode\nof their service under articles; and the oaths to be administered to\nthem; and authorizes the Judges of the courts of the common law, and the\nMaster of the Rolls to appoint examiners to examine the fitness and\ncapacity of all persons applying to be admitted as attorneys or\nsolicitors; and the certificate, either of the common law or equity\nexaminers, will be sufficient to entitle a person so examined to\nadmission in all the courts, examination by both not being necessary. 3\nStewart's Blackst. 29.\n\n2. _Barristers._--The proper legal denomination of this class is\n_apprentices_, being the first degree in the law conferred by the inns\nof court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in\naliqua facultate_. This was probably the meaning of the term primarily;\nbut as early as the reign of Edward I, it was employed to denote\ncounsel below the state and degree of serjeant at law; one degree\ncorresponding to that of bachelor, and the other to that of doctor, in\nthe universities (Pearce's History of the Inns of Court, 28). Lord Coke\ninforms us, however, that this degree was anciently preferred to that of\nserjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad\nbarras_; and hence arose the cognomen of _barristers_. A barrister must\nhave kept twelve terms, _i. e._, been three years a member of an inn of\ncourt, before he can be called to the Bar. After a member of an inn of\ncourt has kept twelve terms, he may, without being called, obtain\npermission to practice _under the Bar_. This class of practitioners are\ncalled _special pleaders_ or _equity draftsmen_ (according as they\nprepare pleadings in the common law or equity courts), or\n_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those\nwho are regularly called, however, may take upon them the causes of all\nsuitors. Such of the barristers as have a patent of precedence, as\nking's counsel, sit within the Bar, with the serjeants; all others are\ncalled _utter_ or _outer barristers_.\n\n3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The\ncoif or covering to the head worn by this order has also given a\ndenomination to them. There exists some differences of opinion among\njudicial antiquarians as to the origin of the coif. It is supposed by\nsome to have been invented about the time of Henry III, for the purpose\nof concealing the clerical tonsure, and thus disguising those renegade\nclerks, who were desirous of eluding the canon, restraining the clergy\nfrom practising as counsel in the secular courts. Hortensius, 349. By\nothers it is referred to a much earlier period, when the practice in the\nhigher courts was monopolized by the clergy, and those who were not in\norders invented the coif to conceal the want of clerical tonsure. 1\nCampbell's Lives of the Chief Justices, 85, note. There are, indeed,\nseveral circumstances to remind us of the ecclesiastical origin of our\nprofession in England. The terms--on the festival of St. Hilary (Bishop\nof Poictiers, in France, who flourished in the fourth century); Easter;\nthe Holy Trinity; and of the blessed Michael, the Archangel;--the habits\nof the judges, their appearance in court in scarlet, purple, or black,\nat particular seasons--the use of the word _brother_ to denote serjeant,\nand _laity_ to distinguish the people at large from the profession--the\ncoif of the serjeants--the bands worn by judges, serjeants, and counsel,\nand the gown and hood of graduates of the inns of court,--many of such\ncircumstances raise a strong presumption that the legal university was\nfounded before the time of the enactment of the canons in the reign of\nKing Henry III, compelling the clergy to abandon the practice of the law\nin the secular courts (Pearce's History, 22). _Nulles clericus nisi\ncausidicus_, was the character given of the clergy, soon after the\nConquest, by William of Malmsbury. The judges, therefore, were usually\ncreated out of the sacred order, as was likewise the case among the\nNormans; and all the inferior offices were supplied by the lower\nclergy, which has occasioned their successors to be styled _clerks_ to\nthis day (1 Bl. Com. 17). The livings in the gift of the Chancellor were\noriginally intended as a provision for them, and an order was made in\nParliament, 4 Edw. III, that \"the Chancellor should give the livings in\nhis gift, rated at twenty marks and under, to the King's clerks in\nChancery, the Exchequer, and the two Benches, according to usage, and to\nnone others.\" 1 Campbell's Lives of the Chancellors, 170, note.\n\nIn the time of Fortescue, sixteen years' continuance in the study of the\nlaw was the period of time considered a necessary qualification in\ncandidates for the coif. There seems, however, never to have been a\nregulation to that effect; and it is certain that persons have often\nbeen advanced to this degree before that time. By the common law no one\ncan be appointed a judge of the superior courts, who has not attained\nthe degree of the coif; which degree can only be conferred on a\nbarrister of one of the four inns of court. As soon as any member of an\ninn of court is raised by royal writ to the state, degree, and dignity\nof a serjeant-at-law, he ceases to be a member of the society. He\nremoves to a new hall, and appears for the future in the inn of court as\na guest (Pearce, 52).\n\nThe most valuable privilege formerly enjoyed by the serjeants (who,\nbesides the judges, were limited to fifteen in number), was the monopoly\nof the practice in the Court of Common Pleas. A bill was introduced into\nParliament in the year 1755; for the purpose of destroying this\nmonopoly; but it did not pass. In 1834, a warrant under the sign manual\nof the Crown was directed to the Judges of the Common Pleas, commanding\nthem to open that court to the Bar at large, on the ground that it would\ntend to the general dispatch of business. This order was received, and\nthe court acted accordingly. But in 1839 the matter was brought before\nthe court by the serjeants, when it was decided that the order was\nillegal; Tindal, C. J., declaring that, \"from time immemorial, the\nserjeants have enjoyed the exclusive privilege of practising, pleading;\nand audience in the Court of Common Pleas. Immemorial enjoyment is the\nmost solid of all titles; and we think the warrant of the Crown can no\nmore deprive the serjeant, who holds an immemorial office, of the\nbenefits and privileges which belong to it, than it could alter the\nadministration of the law within the court itself.\" (10 Bingh. 571; 6\nBingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54,\nhas since extended to all barristers the privileges of serjeants in the\nCourt of Common Pleas.\n\n\nFOOTNOTES:\n\n[1] This oath seems first to have been prescribed by the Act of\nAssembly, passed August 22d, 1752: \"An act for regulating and\nestablishing fees.\" (1 Smith's Laws, 218.) It has been copied into the\nrevised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the\naddition of the clause to \"support the Constitution of the United\nStates, and the Constitution of this Commonwealth.\" In England, by the\nStat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, \"that all\nattorneys shall be examined by the Justices, and by their discretion,\ntheir names put in the roll, and they that be good and virtuous, and of\ngood fame, shall be received, and sworn well and truly to serve in their\noffices, and especially that they make no suit in a foreign country.\"\nThe present oath or affirmation is, that he \"will truly and honestly\ndemean himself in the practice of an attorney, according to the best of\nhis knowledge and ability.\" Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6\n& 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at\nlarge in 2 Inst. 213; and in the valuable old book, \"The Mirror of\nJustices,\" chap. 2, sec. 5, it is said that \"every countor is chargeable\nby the oath, that he shall do no wrong nor falsity, contrary to his\nknowledge, but shall plead for his client the best he can, according to\nhis understanding.\"\n\n[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb.\n349, 354, 387.\n\n[3] See Austin's case, 5 Rawle, 203. \"An attorney at law,\" says C. J.\nGibson, \"is an officer of the court. The terms of the oath, exacted of\nhim at his admission to the bar, prove him to be so;\" \"you shall behave\nyourself in your _office_ of attorney,\" &c. Again: it is declared in the\nConstitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended\nConstitution of 1838), that \"no member of Congress, or other person\nholding any _office_ (except _attorney at law_, and in the militia),\nshall be a member of either House,\" &c., which is a direct\nconstitutional recognition. Prior to the Act of 14th April, 1834, which\nexpressly required from them an oath to support the Constitution of the\nUnited States and the Constitution of the Commonwealth of Pennsylvania,\nattorneys at law were invariably held to be within the provisions of\nArt. 6, sect. 3, of the Constitution of the United States, and of Art.\n8, of the Constitution of Pennsylvania, requiring all officers,\nexecutive and judicial, to take the oath to support those constitutions\nrespectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were\nheld to be officers, within the meaning of a similar clause in the\nConstitution of New York. \"The admission of an attorney, solicitor, or\ncounsellor,\" says the opinion in that case, \"is a general appointment to\nconduct causes before the courts: this station, thus conferred by public\nauthority, has its peculiar powers, privileges, and duties, and thus\nbecomes an office in the administration of justice.\" Leigh's case (1\nMunford, 468), in which it was held, that attorneys are not officers,\nwithin the meaning of the statute of Virginia, requiring all persons\nholding any office, or place, under the commonwealth, to take an oath\nagainst duelling, does not perhaps conflict with this view. The case of\nByrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be\nfound upon examination somewhat at variance--not the decision itself,\nbut the views expressed by Chancellor Watres in his opinion. The case\nsimply decided what would seem unquestionable, that the legislature had\na right to prohibit any public officer, judicial or otherwise, from\npractising as an attorney or solicitor. The Chancellor said, \"He (a\nsolicitor) can he considered in no other light than that of a private\nagent for the citizens of the country, who may employ him to do their\nlegal business in the courts; and although the law requires of him\ncertain qualifications, and he receives a license from the judges, yet\nhis office is no more a public one, than would be any other profession\nor trade, which the legislature might choose to subject to similar\nregulations, and which is the practice in many other countries. It\ncannot be doubted, that a man's trade or profession is his property; and\nif a law should be passed avowedly for the purpose of restraining any\nmember of this bar, who was not a public officer, from exercising his\nprofession, I should declare such law void.\" This is to assume high\nground; but the idea that a man's profession or trade cannot be\nconstitutionally interfered with by legislative enactments, seems\nscarcely tenable, and especially, so far as the profession of the law is\nconcerned, in view of the absolute power with which every court is\nclothed, both as to the admission of their attorneys, and forejudging or\nstriking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet\nLaws, 354). Courts of record and of general jurisdiction, are vested\nwith exclusive power to regulate the conduct of their own officers, and\nin this respect their decisions are put on the same footing with that\nnumerous class of cases, which is wisely confided to the legal\ndiscretion and judgment of the court, having jurisdiction over the\nsubject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex\nparte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306;\nPerry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. \"The\npower is one which ought to be exercised with great caution, but which\nis, we think, incidental to all courts, and necessary for the\npreservation of decorum and for the respectability of the profession.\"\nMarshall C. J. 9 Wheat. 531.\n\n[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.\n\n[5] The exact weight of one hundred silver dollars of the old coinage is\n85.9375 ounces; of the new coinage, 80 ounces.\n\n[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._\nChambers, 1 Serg. & Rawle, 169.\n\n[7] Court and juries have their respective spheres assigned to them,\nwithin which each is to act and move, without encroaching upon the\njurisdiction or province of the other. In order, then, that jurors as\nwell as others may know that the direction and decision of the court, on\nany question of law arising in the course of the trial of an issue of\nfact, is not to be disregarded, and that a verdict given against such\ndirection, whatever it may be, can never avail anything, unless it be to\noccasion additional delay, trouble, and expense to the parties, as also\nto the public, the course of the court is to set the verdict aside, and\nto order a new trial. And a court, from whose decisions on questions of\nlaw, an appeal lies, by writ of error or otherwise, ought never to\ndepart from this course; otherwise the party against whom the verdict is\ngiven loses the benefit of such appeal, and of having the question\ndecided by the Appellate Court, which would be a most unjust and illegal\ndeprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins.\nCo. 4 Whart. 67. After two concurring verdicts against the direction of\nthe court in point of law, a new trial will still be awarded.\nCommissioners of Berks County _v._ Ross, 3 Binn. 520. \"Principles the\nmost firmly established might be overturned, because a second jury were\nobstinate and rash enough to persevere in the errors of the first, in a\nmatter confessed by all to be properly within the jurisdiction of the\ncourt; I mean the construction of the law arising from undisputed\nfacts.\" Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to\nthe numerous cases, both in the English and American courts, which\naccord with these principles. A judicious selection of the leading ones\nis to be found in the note to 1 Wharton's Troubat & Haly, 529. The text\nand the note are confined, of course, to civil cases.\n\n[8] Burnet's Life of Sir Matthew Hale, 72.\n\n[9] An attorney is not answerable for every error or mistake; he ought\nnot to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4\nBurrows, 2060. He shall be protected, when he acts with good faith, and\nto the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass.\n57. The want of ordinary care and skill in such a person is gross\nnegligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._\nSullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between\nthe client and the attorney, the responsibility of the latter is as\ngreat and as strict here as in any country when want of good faith or\nattention to the cause is alleged; but in the exercise of the\ndiscretionary power usually confided in this country, and especially\nwhen the client resides at a great distance, an attorney ought not to be\nheld liable where he has acted honestly and in a way he thought was for\nthe interest of his client. Lynch _v._ The Commonwealth, 16 Serg. &\nRawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an\nattorney disobeys the lawful instructions of his client, and a loss\nensues, for that loss the attorney is responsible. Gilbert _v._\nWilliams, 8 Mass. 57. If the holder of a note place it in the hands of\nan attorney-at-law, with instructions to bring suit upon it, and the\nattorney, acting under the honest impression that he would best promote\nthe interests of his client by not bringing suit immediately, omits to\ndo so, and the money is afterwards lost by the insolvency of the maker,\nthe attorney is liable in an action against him; and the measure of\ndamages is what might have been recovered from the maker of the note, if\nsuit had been brought when the note was placed in the hands of the\nattorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103;\nWilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control\nhis attorney in the due and orderly conduct of a suit, and it is his\nduty to do what the court would order to be done, though his client\ninstruct him otherwise. Anon., 1 Wendell, 108.\n\n[10] An attorney is not compelled to appear for any one unless he takes\nhis fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot\ndetermine the relation himself, to his client's detriment. Love _v._\nHall, 3 Yerger, 408. When a solicitor appointed by a party has acted as\nsuch, he cannot be displaced by the appointment of another, without an\norder of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an\nattorney has entered his name upon the record, he cannot withdraw it\nwithout leave of the court; and until so withdrawn the service of a\ncitation upon him in case of appeal is sufficient. United States _v._\nCurry, 6 Howard, U. S. Rep. 106.\n\n[11] A counsel, attorney, or solicitor, will in no case be permitted,\neven if he should be willing to do so, to divulge any matter which has\nbeen communicated to him in professional confidence. This is not his\nprivilege, but the privilege of the client, and none but the client can\nwaive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._\nCoventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._\nTroup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of\nUtica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27\nMaine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._\nThe Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be\nfound in some of these cases that though the counsel declined to be\nengaged for the client, yet the facts communicated were held\nconfidential; the only exception recognized being where a purpose to\nperpetrate _in futuro_ a felony or an action _malum in se_ was\ndisclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In\nMoore _v._ Bray, 10 Barr, 519, it was held that communications of the\nobject, for which an assignment of a mortgage was made, to a counsel\nconcerned for the assignee, were privileged; although no question then\narose as to the object of the assignment, and the counsel considered the\ncommunication in the light of a casual conversation. \"The circle of\nprotection,\" said Bell, J., \"is not so narrow as to exclude\ncommunications a professional person may deem unimportant to the\ncontroversy, or the briefest and lightest talk the client may choose to\nindulge with his legal adviser, provided he regards him as such at the\nmoment. To found a distinction on such a ground would be to measure the\nsafety of the confiding party by the extent of his intelligence and\nknowledge, and to expose to betrayal those very anxieties, which prompt\nthose in difficulty, to seek the ear of him in whom they trust in season\nand out of season.\"\n\n[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. \"He began,\" says\nLord Campbell, \"with the specious but impracticable rule of never\npleading except on the right side, which would make the counsel to\ndecide without knowing either facts or law, and would put an end to the\nadministration of justice.\" 1 Lord Campbell's Lives of the Chief\nJustices, 412. There is the following curious note by Baxter in Burnet's\nLife of Hale. \"And indeed Judge Hale would tell me that Bishop Usher was\nmuch prejudiced against lawyers because the worst causes find their\nadvocates; but that he and Mr. Selden had convinced him of the reasons\nof it to his satisfaction; and that he did by acquaintance with them\nbelieve that there were as many honest men among lawyers,\nproportionably, as among any profession of men in England (not excepting\nbishops or divines).\" 1 Hale's Works, 106.\n\n[13] 2 Wynne's Eunomus, 557.\n\n[14] \"Although Serjeants have a monopoly of practice in the Common\nPleas, they have a right to practice, and do practice, at this bar; and\nif we were to assign one of them as counsel, and he were to refuse to\nact, we should make bold to commit him to prison.\" Per C. J. Hale. 2\nCampbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev.\n129; 3 Keble, 424, 439, 440.\n\n[15] Let the circumstances against a prisoner be ever so atrocious, it\nis still the duty of the advocate to see that his client is convicted\naccording to those rules and forms which the wisdom of the legislature\nhave established, as the best protection of the liberty and security of\nthe subject. Professor Christian's note to 4 Blackst. Com. 356. From the\nmoment that any advocate can be permitted to say that he _will_ or will\n_not_ stand between the crown and the subject arraigned in the court\nwhere he daily sits to practise, from that moment the liberties of\nEngland are at an end. If the advocate refuses to defend from what _he\nmay_ think of the charge or of the defence, he assumes the character of\nthe judge, nay, he assumes it before the hour of judgment; and in\nproportion to his rank and reputation, puts the heavy influence of\nperhaps a mistaken opinion into the scale against the accused, in whose\nfavor the benevolent principle of English law makes all presumptions,\nand which commands the very judge to be his counsel. Lord Erskine, 6\nCampbell's Lives of the Chancellors, 361.\n\n[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.\n\n[17] \"There are many who know not how to defend their causes in\njudgment, and there are many who do, and therefore pleaders are\nnecessary; so that that which the plaintiffs or actors cannot or know\nnot how to do by themselves, they may do by their serjeants, attorneys,\nor friends.\" Mirr. of Justices, ch. 2, sec. v.\n\n[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit\nfurnishes his attorney with a plea which the attorney finds to be false,\nso that he cannot plead it for _the sake of_ his conscience, the\nattorney may plead in this case, _quod non fuit veraciter informatus_,\nand in so doing he does his duty. Jenkins, 52.\n\n[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.\n\n[20] Law Magazine, February, 1850, May, 1854. Law Review, February,\n1850. Several articles on the subject, taken from the English press, are\nto be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have\nadded, in an appendix, Mr. Phillips's vindication of himself from these\ncharges, in his correspondence with his friend Mr. Warren, preceded by a\nbrief statement of the case.\n\n[21] The civil law will not allow a man to be convicted on his bare\nconfession, not corroborated by evidence of his guilt; because there may\nbe circumstances which may induce an innocent man to accuse himself.\nBowyer's Commentaries, 355, note. Upon a simple and plain confession,\nthe court hath nothing to do but to award judgment; but it is usually\nvery backward in receiving and recording such confession out of\ntenderness to the life of the subject; and will generally advise the\nprisoner to retract it and plead to the indictment. 4 Blackst. Comm.\n329. 2 Hale, P. C. 225.\n\n[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.\n\n[23] In enumerating the things to which every pleader of others' causes\nought to have a regard, the Mirror of Justices says, \"That he put no\nfalse dilatories into court, nor false witnesses, nor move or offer any\nfalse corruptive deceits, leasings, or false lies, nor consent to any\nsuch, but truly maintain his client's cause, so that it fail not by any\nnegligence or default in him, nor by any threatening, hurt, or villany,\ndisturb the judge, plaintiff, serjeant, or any other in court, whereby\nhe hinder the right or the hearing of the cause.\" Chap. 2, s. 5. This is\nindeed in the very words of the serjeant's oath, and Lord Coke remarks\nthat it consists of four parts: \"1. That he shall well and truly serve\nthe king's people, as one of the serjeants at law. 2. That he shall\ntruly counsel them that he shall be retained with, after his cunning. 3.\nThat he shall not defer, wait, or delay their causes willingly for\ncovetousness of money, or other thing that may tend to his profit. 4.\nThat he shall give due attendance accordingly.\" 2 Inst. 214.\n\n[24] A pleader is suspendable when he is attainted to have received fees\nof two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.\n\n[25] \"It is impossible to state a case, in which a witness should be\ntreated roughly. If you attempt it, every one feels offended, in the\nperson of the witness. You make your work more difficult; the witness\nshuts himself up, considers you as his enemy, and stands upon his\ndefence: whereas, an open countenance, and an easy insinuating address,\nunlocks his breast, and disarms him of his caution, if he has any.\"\nDeinology, 228. This admirable little work, which has been attributed to\nthe pen of Lord Erskine, cannot be too highly recommended to the student\nof law. The postscript, which suggests considerations on the _viva voce_\nexamination of witnesses, is particularly worthy a very attentive\nperusal.\n\n[26] Preston on Estates, 2.\n\n[27] Co. Litt. 71 _a._\n\n[28] Ibid. 6 _a._\n\n[29] Art. Edward Tilghman, in the Encyclopaedia Americana, vol. xiv; The\nLeaders of the Old Bar of Philadelphia, 50. Let me recommend to the\nattention of the student a curious and interesting work, entitled \"An\nintroduction to the science of the law, showing the advantages of a\nlegal education, grounded on the learning of Lord Coke's Commentaries,\nupon Littleton's Tenures, &c., by Frederick Ritso, Esq.\" There are few\nworks of celebrity, in regard to which such opposite opinions have been\nmaintained as the Commentaries of Sir William Blackstone. While some\nhave expressed the most enthusiastic admiration, there have been others,\nlike Mr. Austin, Professor of General Jurisprudence, in the University\nof London (Outlines of Lectures, 63), who have dealt in language of\nunsparing condemnation and contempt. Mr. Ritso thinks that \"the error\nwas in adopting them as an institute for the instruction and education\nof professional students, which was evidently no part of Blackstone's\nplan, nor within the scope of his engagement.\" In this point of view, he\nobjects, that \"he represents everything rather for effect, than with a\nview to demonstrate. Like the gnomon upon the sun-dial, he takes no\naccount of any hours, but the serene:\n\n                                    Et quae,\n    Desperat tractata nitescere posse, relinquit.\n\nIn a professional point of view, this solicitude rather to captivate the\nimagination of the student, than to exercise and discipline the\nunderstanding, is equally unprofitable and inconvenient. It puts him off\nwith ornamental illustration, instead of solid argument, and leads to a\nsort of half information, which is often much worse than no information\nat all upon the subject.\" There is some force in these remarks; yet, too\nmany great lawyers have begun their studies with Blackstone, to leave\nany doubt that it is a proper first book. It paves the way for more\nrepulsive, though more recondite and valuable works. I very much fear,\nindeed, that a disposition has existed of late years to repudiate Coke\nupon Littleton entirely. Chancellor Kent has shown his leaning in that\ndirection (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr.\nButler's opinion: \"He is the best lawyer, and will succeed best in his\nprofession, who best understands Coke upon Littleton.\" It ought not,\nperhaps, to be placed in the hands of the student until he has made some\nprogress in his reading of other works: but sooner or later, he should\naim to master it. Lord Coke was, himself, deeply imbued with the love of\nhis profession, and he is able to transfuse his own spirit into his\nreaders. His method may be objectionable in some respects; but I cannot\nhelp thinking that the life of his work is gone when it is hacked to\npieces, and then attempted to be fitted together again upon another\nman's skeleton. I have ventured to add in the Appendix (No. II), a\nsketch of such a course of reading, of not very extensive compass, as\nmay with advantage be pursued by every young man after his admission to\nthe Bar.\n\n[30] Maddock's Chancery. Preface.\n\n[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that\nthe person here mentioned was George Hardinge--a Welsh judge and nephew\nof Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord\nMahon, it was on the 15th of March, 1782, in the debate on a motion of\nSir John Rouse, of want of confidence in the ministry after the\nsurrender of Lord Cornwallis. He ascribes the remark to Sir James\nMarriott, but says that, although he was the assertor of this singular\nargument, the honor of its original invention seems rather to belong to\nMr. Hardinge. 5 Mahon's Hist. 139.\n\n[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.\n\n[33] Continuus inde et saevus accusandis reis Sicilius, multique audaciae\nejus aemuli. Nam cuncta legum et magistratuum munia in se trahens\nPrinceps, materiam praedandi patefecerat. Nec quidquam publicae mercis tam\nvenale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques\nRomanus, quadringentis nummorum millibus, Sicilio datis, et cognita\nprevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C.\nSilio consule designato, cujus de potentia et exitio in tempore\nmemorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur\nantiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit.\nAnnul. 1. 11, c. 5.\n\n[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While\nexpressing, as will be seen presently, the opinion that authority as\nwell as sound policy would have led me to a different conclusion from\nthat at which Chancellor Walworth arrived, it is proper to acknowledge\nthat I have drawn largely upon his learned judgment in this case, and at\nthe same time to express the high admiration I entertain for the ability\nwith which the last of the New York Chancellors illustrated the chair\nwhere such truly great men had sat before him.\n\n[35] Gibbon's Decline and Fall, c. xvii.\n\n[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;\nHodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's\nnote to 1 Co. Litt. 295 a. So it is with the advocates in the civil law.\nVost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1,\ns. 42, 43, 44. Boucher D'Asyis, Hist. Abrege de L'Order des Avocats, c.\niv. See also the commencement of the Dialogue des Avocats du Parl. de\nParis, by Loisil, which contains curious particulars throughout\nrespecting the ancient French Bar. An amusing anecdote is related of\nPasquier, the famous French advocate. In 1583, while he was attending\nthe assizes (_les grands jours_) at Troyes, he sat for his portrait, and\nafter the painter had finished the likeness, which Pasquier had not yet\nexamined, he asked him to represent him with a book in his hand. The\npainter said that it was too late, as the picture was completed without\nhands. Upon this the witty lawyer immediately wrote the following lines\nas a motto for the portrait:\n\n    Nulla hic Pascasio manus est: Lex Cincia quippe\n    Causidicos nulla sanxit habere manus.\n\nForsyth's Hortensius, 424.\n\n[37] The reader will find in the Appendix, No. III, an account of the\ndifferent orders of the English Bar.\n\n[38] In some States, the professions of attorney and counsellor at law\nare not distinct; the same person conducts the cause in all its stages;\nand it has not been considered that his authority ceases when judgment\nis obtained. The attorney is in some degree the agent as well as the\nattorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16\nSerg. & Rawle, 368.\n\n[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.\n\n[40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35.\n\"I shall be sorry to see the honorary character of the fees of\nbarristers and physicians done away with. Though it seems to be a\nshadowy distinction, yet I believe it to be beneficial in effect. It\ncontributes to preserve the idea of profession, of a class which belongs\nto the public, in the employment and remuneration of which no law\ninterferes, but the citizen acts as he likes, '_foro conscientiae_.'\"\nColeridge's Table Talk, vol. 2.\n\n[41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4\nWatts, 33. In New Jersey, an advocate's fees are not recoverable at law.\nShaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van\nAlter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of\ndecisions is in the opposite direction, will be seen by consulting\nStevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._\nWashington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127;\nBayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord,\n149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch.\nRep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21\nVermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E.\nD. Smith, 318.\n\n[42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster\n_v._ Jack, 4 Watts, 337.\n\n[43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451.\n\n[44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a\nconfidential employment is a legitimate subject of compensation, and in\nproportion to the magnitude of the interests committed to the agent.\nKentucky Bank _v._ Combs, 7 Barr, 543.\n\n[45] That evidence of usage is admissible to show what is the rule of\ncompensation for similar services to those sued for, see Vilas _v._\nDowner, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94.\n\n[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5,\n\"four things are to be regarded: 1. The greatness of the cause. 2. The\npains of the serjeant. 3. His worth, as his learning, eloquence, and\ngift. 4. The usage of the court.\"\n\n[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs\nanciens arrets donnent aux avocats une action pour le paiement de leurs\nhonoraires: mais, suivant la derniere jurisprudence du Parlement de\nParis et la discipline actuelle du barreau, ou ne souffre point qu'un\navocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il\nest possible, que l'usage ne soit qu'un prejuge; mais ce prejuge a eu\nune salutaire influence sur la splendeur du barreau Francais. On ne\npretend pas, en France, qu'un avocat n'a pas droit a un honoraire pour\nprix de ses travaux. Jamais on n'a refuse d'en allouer a ceux qui en ont\nreclame. Dans plusieurs barreaux, ces reclamations sont meme tolerees.\nMais le barreau de Paris s'est montre plus severe; et non seulement\nautrefois, mais encore aujourd'hui, tout avocat a la cour qui\nactionnerait un client en paiement d'honoraires serait raye du tableau.\nDu reste, s'il est defendu d'exiger, il est permis de recevoir tout ce\nque le client veut bien assigner pour prix aux services de son avocat,\nen raison de ses peines et de l'importance des travaux. Ibid. 698.\n\nLes honoraires dus par les parties aux avocats charges du soin de leur\ndefense, ne doivent pas etre restraints a la taxe etablie par le tarif.\nCette taxe a pour objet seulement de fixer la somme due par la partie\nqui succombe, et non d'apprecier les soins de l'avocat, appreciation qui\ndoit etre faite selon l'importance et la difficulte du travail. Ibid.\n699.\n\n[48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48.\n\n[49] Foster _v._ Jack, 4 Watts, 338, 339.\n\n[50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The\nBaltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That\nchamperty is an offence at common law, and that contracts of that\ncharacter, between client and counsel, are void on that ground, and as\nagainst public policy, will be found to have been maintained in Rust\n_v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's\nHeirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._\nPatterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis\n_v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott\n_v._ McClelland, 17 Alabama, 206. The cases on the other side, are,\nThallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._\nTrent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle\n_v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major\n_v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa,\n472. In New York, by the Revised Statutes, it was made an offence,\npunishable by fine or imprisonment, and removal from the Bar, for any\nattorney, counsellor, or solicitor, directly or indirectly to buy, or be\nin any manner interested in buying, or to advance or procure money to be\nadvanced upon anything in action, with the intent, or for the purpose of\nbringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure\nappears to have changed the law in this respect, and to enable parties\nto make such bargains as they please with their attorneys. Code of\nProcedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142;\nBenedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.),\n275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to\nbe a statute, which provides that any one not a party, receiving as\ncompensation for services in prosecuting or defending a suit the whole\nor part of the subject-matter in suit, is guilty of champerty, and it\nhas been held that this statute extends to attorneys. Davis _v._\nSharron, 15 B. Monroe, 64. In England, contingent fees are held to be\nclearly within the statutes of champerty and maintenance. Penrice _v._\nParker, Rep. Temp. Finch, 75.\n\n[51] 2 Wallace, Jr. Rep. 452.\n\n[52] 10 Casey, 299.\n\n[53] Paciscendi quidem ille piraticus mos; et imponentium periculis\npretia, procul abominanda negotiatio, etiam a mediocriter improbis\naberit: cum praesertim bonos homines bonasque causas tuenti non sit\nmetuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib.\nxii, c. 7.\n\n[54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199;\nWalmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313.\nThe doctrine has been fully followed in this country; Stockton _v._\nFord, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell\n_v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._\nJ. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles\n_v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb\n_v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308;\nJennings _v._ McConnel, 17 Illinois, 148.\n\nAn agreement made by a client with his counsel, after the latter had\nbeen employed in a particular business, by which the original contract\nis varied, and greater compensation is secured to the counsel than may\nhave been agreed upon when first retained, is invalid and cannot be\nenforced. Lecatt _v._ Sallee, 3 Porter, 115.\n\n[55] In Foss's Grandeur of the Law, eighty-two existing peerages are\nstated to have sprung from the law. That was in 1843.\n\n[56] Non merum, si ob hanc facultatem homines saepe etiam non nobiles\nconsulatum consecuti sunt: praesertim cum haec eadem res plurimas gratias,\nfirmissimas amicitias, maxima studia pariat. Cic. pro Muraena.\n\n[57] Vivit, vivetque per omnium saeculorum memoriam. Dumque hoc vel forte\nvel providentia vel utcunque constitutum rerum naturae corpus, quod ille\npaene solus Romanorum animo vidit, ingenio complexus est, eloquentia\nilluminavit, manebit incolume: comitem aevi sui laudem Ciceronis trahet;\nomnisque posteritas illius in te scripta mirabitur, tuum in eum factum\nexecrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere.\nL. 2.\n\n[58] Sir William Jones adds to his other claims upon our admiration\nthat of a decided partiality to the character and fortunes of our\nAmerican Republics. \"The sum of my opinion is,\" says he, \"that while all\nthe American people understand the modern art of war, and learn\njurisprudence by serving in rotation upon grand and petit juries, their\nliberty is secure, and they will certainly flourish most when their\npublic affairs are best administered by their Senate and Councils. I\ncannot think a monarchy or an oligarchy _stronger_ in substance,\nwhatever they may be in appearance, than a popular government.... I\nshall not die in peace without visiting your United States for a few\nmonths before the close of the eighteenth century. May I find wisdom and\ngoodness in your Senate, arms and judicature, which are power, in your\ncommons, and the blessings of wealth and peace equally distributed among\nall.\" 2 Wynne's Eunomus, 359, note.\n\n[59] Note at p. 47.\n\n[60] Note at p. 75.","title":"An Essay on Professional Ethics: Second Edition","tradition":"philosophy-ethics","translated_text":null,"word_count":41190}